Note: This publication is a compilation of the text of selected defense-related laws, as amended through December

31, 2003, prepared for the Committee on Armed Services of

the House of Representatives. While this publication does

not represent an official version of any Federal statute, substantial efforts have been made to ensure the accuracy of its

contents. The official version of Federal law is found in the

United States Statutes at Large and in the United States

Code; the legal effect to be given to the Statutes at Large

and the United States Code is established by statute (1

U.S.C. 112, 204).

Please report any errors to the Committee.
U.S. GOVERNMENT PRINTING OFFICE

84–110 WASHINGTON : 

" ! COMMITTEE PRINT 108th Congress

2d Session

No. 3

2004

SELECTED DEFENSE-RELATED LAWS

(Amended Through December 31, 2003)

VOLUME II

INCLUDING

TITLE 32, UNITED STATES CODE

TITLE 37, UNITED STATES CODE

WEAPONS PROGRAMS AND LIMITATIONS

WAR AND NATIONAL DEFENSE

BASE REALIGNMENT AND CLOSURE (BRAC) AND REAL

PROPERTY

ENVIRONMENTAL RESTORATION AND CONSERVATION

SELECTED PERSONNEL MATTERS

FAMILY AND SPOUSE PROVISIONS

DEFENSE INDUSTRIAL BASE, ECONOMIC CONVERSION AND

TRANSITION, AND WORKFORCE AND DEPOT ISSUES

PREPARED FOR THE USE OF THE

COMMITTEE ON ARMED SERVICES

U.S. HOUSE OF REPRESENTATIVES

http: //www.house.gov/hasc

FEBRUARY 2004

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: http://bookstore.gpo.gov Phone: (202) 512–1800 Fax: (202) 512–2250

Mail: Stop SSOP, Washington, DC 20402–0001
HOUSE COMMITTEE ON ARMED SERVICES

ONE HUNDRED EIGHTH CONGRESS

DUNCAN HUNTER, California, Chairman

CURT WELDON, Pennsylvania

JOEL HEFLEY, Colorado

JIM SAXTON, New Jersey

JOHN M. MCHUGH, New York

TERRY EVERETT, Alabama

ROSCOE G. BARTLETT, Maryland

HOWARD P. ‘‘BUCK’’ MCKEON, California

MAC THORNBERRY, Texas

JOHN N. HOSTETTLER, Indiana

WALTER B. JONES, North Carolina

JIM RYUN, Kansas

JIM GIBBONS, Nevada

ROBIN HAYES, North Carolina

HEATHER WILSON, New Mexico

KEN CALVERT, California

ROB SIMMONS, Connecticut

JO ANN DAVIS, Virginia

ED SCHROCK, Virginia

W. TODD AKIN, Missouri

J. RANDY FORBES, Virginia

JEFF MILLER, Florida

JOE WILSON, South Carolina

FRANK A. LOBIONDO, New Jersey

TOM COLE, Oklahoma

JEB BRADLEY, New Hampshire

ROB BISHOP, Utah

MICHAEL TURNER, Ohio

JOHN KLINE, Minnesota

CANDICE S. MILLER, Michigan

PHIL GINGREY, Georgia

MIKE ROGERS, Alabama

TRENT FRANKS, Arizona

IKE SKELTON, Missouri

JOHN SPRATT, South Carolina

SOLOMON P. ORTIZ, Texas

LANE EVANS, Illinois

GENE TAYLOR, Mississippi

NEIL ABERCROMBIE, Hawaii

MARTY MEEHAN, Massachusetts

SILVESTRE REYES, Texas

VIC SNYDER, Arkansas

JIM TURNER, Texas

ADAM SMITH, Washington

LORETTA SANCHEZ, California

MIKE MCINTYRE, North Carolina

CIRO D. RODRIGUEZ, Texas

ELLEN O. TAUSCHER, California

ROBERT A. BRADY, Pennsylvania

BARON P. HILL, Indiana

JOHN B. LARSON, Connecticut

SUSAN A. DAVIS, California

JAMES R. LANGEVIN, Rhode Island

STEVE ISRAEL, New York

RICK LARSEN, Washington

JIM COOPER, Tennessee

JIM MARSHALL, Georgia

KENDRICK B. MEEK, Florida

MADELEINE Z. BORDALLO, Guam

RODNEY ALEXANDER, Louisiana

TIM RYAN, Ohio

ROBERT S. RANGEL, Staff Director

(ii)
iii

SUMMARY OF CONTENTS

Page

A. Title 32, United States Code—National Guard .................. 1

B. Title 37, United States Code—Pay and Allowances of the

Uniformed Services ................................................................. 47

C. Weapons Programs and Limitations ..................................... 235

D. War and National Defense .................................................... 453

E. Base Realignment and Closure (BRAC) and Real Property

Issues ........................................................................................ 775

F. Environmental Restoration and Conservation ..................... 895

G. Selected Personnel Matters ................................................... 937

H. Family and Spouse Provisions .............................................. 1003

I. Defense Industrial Base, Economic Conversion and Transition, and Workforce and Depot Issues ................................... 1093

J. Additional Matters .................................................................. 1149
(iv)

For changes after the closing date of this publication (December 31, 2003) to provisions of title 32 or 37, United States Code,

or other provisions of law contained in this publication that are

also set forth in the United States Code, see the United States

Code Classification Tables published by the Office of the Law Revision Counsel of the House of Representatives at http://

uscode.house.gov/uscct.htm.
v

CONTENTS

Page

Preface ...................................................................................................................... xiii

A. TITLE 32—NATIONAL GUARD .................................................................... 1

Chapter 1. Organization .................................................................................. 7

Chapter 3. Personnel ........................................................................................ 18

Chapter 5. Training .......................................................................................... 28

Chapter 7. Service, Supply, and Procurement ............................................... 36

B. TITLE 37—PAY AND ALLOWANCES OF THE UNIFORMED

SERVICES ............................................................................................................ 47

Chapter 1. Definitions ...................................................................................... 57

Chapter 3. Basic Pay ........................................................................................ 60

Chapter 5. Special and Incentive Pays ........................................................... 73

Chapter 7. Allowances ...................................................................................... 143

Chapter 9. Leave .............................................................................................. 202

Chapter 10. Payments to Missing Persons ..................................................... 206

Chapter 11. Payments to Mentally Incompetent Persons ............................. 216

Chapter 13. Allotments and Assignments of Pay .......................................... 218

Chapter 15. Prohibitions and Penalties .......................................................... 220

Chapter 17. Miscellaneous Rights and Benefits ............................................ 221

Chapter 19. Administration ............................................................................. 225

C. WEAPONS PROGRAMS AND LIMITATIONS: ............................................... 235

1. BALLISTIC MISSILE DEFENSE (including provisions from the

following laws):

a. National Defense Authorization Act for Fiscal Year 2002 ......... 237

b. Floyd D. Spence National Defense Authorization Act for Fiscal

Year 2001 ........................................................................................ 241

c. National Defense Authorization Act for Fiscal Year 2000 .......... 244

d. National Missile Defense Act of 1999 .......................................... 248

e. Restrictions and Requirements Relating to Ballistic Missile

Defense (Section 2705 of the Foreign Affairs Reform and Restructuring Act of 1998) ................................................................. 249

f. Restructuring of Acquisition Strategy for THAAD System (Section 236 of Public Law 105–261) ................................................... 250

g. National Defense Authorization Act for Fiscal Year 1998 ......... 251

h. National Defense Authorization Act for Fiscal Year 1997 ......... 254

i. Ballistic Missile Defense Act of 1995 ............................................ 254

j. National Defense Authorization Act for Fiscal Year 1995 .......... 259

k. National Defense Authorization Act for Fiscal Year 1994 ......... 260

l. Theater Missile Defense Initiative (Section 231 of Public Law

102–484) .......................................................................................... 262

m. National Defense Authorization Act for Fiscal Year 1991 ........ 263

n. National Defense Authorization Act for Fiscal Years 1988

and 1989 .......................................................................................... 264
Page

vi

C. WEAPONS PROGRAMS AND LIMITATIONS—Continued

2. PROVISIONS RELATED TO CHEMICAL AND BIOLOGICAL

WEAPONS (including provisions from the following laws):

a. Management of Program for Destruction of Existing Stockpile

of Lethal Chemical Agents and Munitions (Section 141 of Public Law 107–314) ............................................................................. 269

b. Alternative Technologies for Destruction of Assembled Chemical Weapons (Section 142 of Public Law 105–261) ..................... 269

c. Destruction of Existing Stockpiles—Protection of Environment

(Section 152 of Public Law 104–106) ............................................ 272

d. Transportation of Chemical Munitions (Section 143 of Public

Law 103–337) .................................................................................. 274

e. Chemical and Biological Weapons Defense (Title XVII of Public

Law 103–160) .................................................................................. 275

f. National Defense Authorization Act for Fiscal Year 1993 .......... 279

g. Destruction of Existing Stockpile of Lethal Chemical Agents

and Munitions (Section 1412 of Public Law 99–145) .................. 281

h. Limitation on Procurement of Binary Chemical Weapons (Section 1233 of Public Law 98–94) ..................................................... 285

i. Section 409 of the Act of November 19, 1969 (50 U.S.C. 1511

et seq.) ............................................................................................. 286

j. Chemical Weapons Convention Implementation Act of 1998 ..... 288

3. ARMS CONTROL MATTERS AND NUCLEAR NONPROLIFERATION MATTERS (including provisions from the following laws):

a. Plan for Securing Nuclear Weapons of the Former Soviet

Union (Section 1205 of Public Law 107–107) ............................... 315

b. Revised Nuclear Posture Review (Section 1041 of Public Law

106–398) .......................................................................................... 316

c. Transmission of Reports on Arms Control Developments (Section 1502 of Public Law 105–261) ................................................. 317

d. National Defense Authorization Act for Fiscal Year 1998 ......... 317

e. Report on Counterproliferation Activities and Programs (Section 1503 of Public Law 103–337) ................................................. 323

f. National Defense Authorization Act for Fiscal Year 1994 .......... 324

g. National Defense Authorization Act for Fiscal Year 1993 (including Weapons of Mass Destruction Control Act of 1992 and

Iran-Iraq Arms Non-Proliferation Act of 1992) ............................ 328

h. National Defense Authorization Act for Fiscal Years 1990

and 1991 .......................................................................................... 339

4. EXPORT CONTROL MATTERS (including provisions from the

following laws):

a. Arms Export Control Act ............................................................... 342

b. Landmine Export Moratorium (Section 1365 of Public Law

102–484) .......................................................................................... 423

c. Export Controls and Reporting Requirements Regarding High

Performance Computers (Sections 1211–1215 of Public Law

105–85) ............................................................................................ 425

d. Satellite Export Controls (Subtitle B of title XV of Public

Law 105–261) .................................................................................. 429

e. Release of Export Information and Nuclear Export Reporting

(Sections 1522 and 1523 of Public Law 105–261) ........................ 435

f. Proliferation and Export Control Provisions of Title XIV of

Public Law 106–65 ......................................................................... 437

g. Review of Export Protections for Military Superiority Resources (Section 1211 of Public Law 108–136 .............................. 446
Page

vii

C. WEAPONS PROGRAMS AND LIMITATIONS—Continued

5. NAVY MINE COUNTERMEASURES PROGRAMS (Section 216

of Public Law 102–190) ......................................................................... 447

6. HIGH ENERGY LASER PROGRAMS (Subtitle D of title II of

Public Law 106–398) ............................................................................. 449

D. WAR AND NATIONAL DEFENSE: .................................................................. 453

1. NATIONAL SECURITY ACT OF 1947 ............................................... 455

2. WAR POWERS RESOLUTION AND AUTHORIZATION FOR USE

OF MILITARY FORCE AGAINST IRAQ RESOLUTION OF 2002:

a. War Powers Resolution ................................................................. 493

b. Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107–243) ................................................ 498

3. NATIONAL EMERGENCIES ACT ..................................................... 500

4. MILITARY SELECTIVE SERVICE ACT (Including Proclamation

of the President Regarding Registration) ............................................ 504

5. HOMELAND SECURITY AND DEFENSE AGAINST WEAPONS

OF MASS DESTRUCTION (including provisions from the following

laws):

a. Defense Biomedical Countermeasures (Title XVI of Public Law

108–136) .......................................................................................... 545

b. Bob Stump National Defense Authorization Act for Fiscal

Year 2003 ........................................................................................ 549

c. National Bio-Weapons Defense Analysis Center (Section 1708

of Public Law 107–296) .................................................................. 552

d. Chemical Warfare Defense (Section 247 of Public Law 107–

261) .................................................................................................. 552

e. Defense Against Weapons of Mass Destruction Act of 1998 ...... 554

f. Annual Report on Threat Posed to the United States by Weapons of Mass Destruction (Section 234 of Public Law 105–85) .... 556

g. Defense Against Weapons of Mass Destruction Act of 1996 ...... 558

h. Combatting Proliferation of Weapons of Mass Destruction Act

of 1996 ............................................................................................. 572

6. NATIONAL DEFENSE STOCKPILE AND NAVAL PETROLEUM

RESERVE (including provisions from the following laws):

a. Strategic and Critical Materials Stock Piling Act ....................... 579

b. Executive Order 12626—National Defense Stockpile Manager . 590

c. Annual Defense Authorization and Appropriations Acts ............ 591

d. Sale of Naval Petroleum Reserve Numbered 1 ........................... 608

e. Disposal of Other Naval Petroleum Reserves .............................. 615

7. RELATIONS WITH NATO COUNTRIES AND OTHER NATIONS

(including provisions relating to Cooperative Threat Reduction with

States of the Former Soviet Union):

a. Annual Report on NATO Prague Capabilities Commitment

and NATO Response Force (Section 1231 of Public Law 108–

136) .................................................................................................. 623

b. Title XIII of the National Defense Authorization Act for Fiscal

Year 2004 ........................................................................................ 625

c. Title XIII of the Bob Stump National Defense Authorization

Act for Fiscal Year 2003 ................................................................. 631

d. Transfer of Department of Defense’s Cooperative Threat Reduction Program (Section 3151 of Public Law 107–314) ............. 632

e. Floyd D. Spence National Defense Authorization Act for Fiscal

Year 2001 ........................................................................................ 634

f. National Defense Authorization Act for Fiscal Year 2000 .......... 645
Page

viii

D. WAR AND NATIONAL DEFENSE—Continued

7. RELATIONS WITH NATO COUNTRIES AND OTHER NATIONS

(including provisions relating to Cooperative Threat Reduction with

States of the Former Soviet Union)—Continued

g. Strom Thurmond National Defense Authorization Act for

Fiscal Year 1999 ............................................................................. 655

h. National Defense Authorization Act for Fiscal Year 1997 ......... 659

i. National Defense Authorization Act for Fiscal Year 1996 .......... 661

j. National Defense Authorization Act for Fiscal Year 1995 .......... 664

k.Cooperative Threat Reduction Act of 1983 (Title XII of Public

Law 103–160) .................................................................................. 666

l. FREEDOM Support Act (Public Law 102–511) ........................... 672

m. Soviet Nuclear Threat Reduction Act of 1991 (Title II of

Public Law 102–228) ...................................................................... 681

n. National Defense Authorization Act for Fiscal Years 1992

and 1993 .......................................................................................... 684

o. Contributions by Japan to the Support of United States Forces

in Japan, Including Permanent Ceiling on U.S. Deployment

(Section 8105 of Public Law 101–511 and Section 1455 of Public Law 101–510) ............................................................................. 685

p. National Defense Authorization Act for Fiscal Year 1991 ......... 687

q. Department of Defense Appropriations Act, 1989, Including

Permanent Ceiling on U.S. Deployment in Japan and Korea .... 688

r. Department of Defense Authorization Act, 1985, Including Permanent Ceiling on U.S. Deployment in NATO Countries ........... 690

s. Assignment of Military Personnel for Overseas Management

of Foreign Assistance Programs (Section 515 of Foreign Assistance Act of 1961) ............................................................................ 692

8. SEALIFT AND SHIPBUILDING PROGRAMS (including provisions from the following laws):

a. National Defense Authorization Act for Fiscal Year 1994 ......... 694

b. National Defense Authorization Act for Fiscal Year 1993 ......... 696

c. National Defense Authorization Act for Fiscal Year 1991 .......... 699

9. DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES

(including provisions from the following laws):

a. National Defense Authorization Act for Fiscal Year 2004 ......... 702

b. Department of Defense Appropriations Act, 2004 ....................... 703

c. National Defense Authorization Act for Fiscal Year 2000 .......... 704

d. National Defense Authorization Act for Fiscal Year 1998 ......... 706

e. National Defense Authorization Act for Fiscal Year 1997 .......... 710

f. National Defense Authorization Act for Fiscal Year 1995 .......... 712

g. National Defense Authorization Act for Fiscal Year 1993 ......... 714

h. National Defense Authorization Act for Fiscal Year 1991 ......... 716

10. SPOILS OF WAR ACT OF 1994 ........................................................ 719

11. DEFENSE PRODUCTION ACT OF 1950 ......................................... 721

12. SPECIAL ACCESS PROGRAMS (Section 1152 of Public Law

103–160) ................................................................................................. 772

E. BASE REALIGNMENT AND CLOSURE (BRAC) AND REAL PROPERTY

ISSUES: ................................................................................................................ 775

1. DEFENSE BASE CLOSURE AND REALIGNMENT ACT OF

1990 ......................................................................................................... 777

2. 1988 BASE REALIGNMENT AND CLOSURE ACT (title II of

the Defense Authorization Amendments and Base Closure and Realignment Act) ........................................................................................ 823
Page

ix

E. BASE REALIGNMENT AND CLOSURE (BRAC) AND REAL PROPERTY

ISSUES—Continued

3. HOMEOWNERS ASSISTANCE PROGRAM (Section 1013 of the

Demonstration Cities and Metropolitan Development Act of 1966

(42 U.S.C. 3374)) .................................................................................... 840

4. MISCELLANEOUS BASE REALIGNMENT AND CLOSURE

PROVISIONS (including provisions from the following laws):

a. Consideration of Surge Requirements in 2005 Round of Base

Realignments and Closures (Section 2822 of Public Law 108–

136) .................................................................................................. 846

b. Military Construction Authorization Act for Fiscal Year 1998 .. 846

c. Government Rental of Facilities Located on Closed Military

Installations (Section 2814 of Public Law 103–337) .................... 850

d. Military Construction Authorization Act for Fiscal Year 1994

(including Base Closure Community Assistance) ........................ 850

e. Disposition of Facilities of Depository Institutions (Section

2825 of Public Law 102–190) ......................................................... 855

5. USE OF SURPLUS PROPERTY TO ASSIST HOMELESS (including the following laws):

a. Section 501 of the McKinney-Vento Homeless Assistance Act

(42 U.S.C. 11411) ............................................................................ 857

b. Section 2(e) of the Base Closure Community Redevelopment

and Homeless Assistance Act of 1994 ........................................... 862

6. ARMED FORCES RETIREMENT HOME (including the following

laws):

a. Armed Forces Retirement Home Act of 1991 .............................. 865

b. Disposal of District of Columbia Tract (Section 1053 of Public

Law 104–201) .................................................................................. 879

7. PURCHASE OF PUBLIC WORKS, UTILITY, AND OTHER MUNICIPAL SERVICES AT CERTAIN CALIFORNIA INSTALLATIONS (Section 343 OF Public Law 108–136) .................................... 881

8. DEMONSTRATION PROJECT FOR UNIFORM FUNDING OF

MORALE, WELFARE, AND RECREATION ACTIVITIES AT

CERTAIN MILITARY INSTALLATIONS (Section 335 of Public

Law 104–106) ......................................................................................... 882

9. PROJECTS TO IMPROVE OPERATION OF MILITARY INSTALLATIONS ................................................................................................

a. Brooks Air Force Base Efficiency Project (Section 136 of Division A of Public Law 106–246) ...................................................... 884

b. Pilot Programs for Operation and Maintenance of Military

Installations (Sections 2813 and 2814 of Public Law 107–107) .. 888

10. IDENTIFICATION OF REQUIREMENTS TO REDUCE BACKLOG IN MAINTENANCE AND REPAIR OF DEFENSE FACILITIES (Section 374 of Public Law 106–398) ......................................... 892

F. ENVIRONMENTAL RESTORATION AND CONSERVATION: ..................... 895

1. SELECTED ENVIRONMENTAL PROVISIONS FROM ANNUAL

DEFENSE AUTHORIZATION ACTS (including provisions from

the following laws):

a. National Defense Authorization Act for Fiscal Year 2004 ......... 897

b. National Defense Authorization Act for Fiscal Year 2002 ......... 903

c. Strom Thurmond National Defense Authorization Act for

Fiscal Year 1999 ............................................................................. 906

d. Pilot Program for Sale of Air Pollution Emission Reductions

Incentives (Section 351 of Public Law 105–85) ............................ 908
Page

x

F. ENVIRONMENTAL RESTORATION AND CONSERVATION—Continued

1. SELECTED ENVIRONMENTAL PROVISIONS FROM ANNUAL

DEFENSE AUTHORIZATION ACTS (including provisions from

the following laws)—Continued

e. Environmental Education and Training Program for Defense

Personnel (Section 328 of Public Law 103–337) .......................... 909

f. National Defense Authorization Act for Fiscal Year 1993 .......... 909

2. SIKES ACT (Title I) .............................................................................. 917

3. SECTION 120 OF THE COMPREHENSIVE ENVIRONMENTAL

RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980

(42 U.S.C. 9620) ..................................................................................... 924

4. WAIVER OF SOVEREIGN IMMUNITY UNDER SOLID WASTE

DISPOSAL ACT (Section 6001; 42 U.S.C. 6961) ................................ 935

G. PERSONNEL MATTERS ................................................................................... 937

1. PROVISIONS REGARDING POWS AND MIAS (including the

following laws):

a. Sections 1082–1084 of Public Law 102–190 ................................ 939

b. Section 1031 of Public Law 103–337 ............................................ 941

c. Section 521 of Public Law 104–106 .............................................. 942

d. Section 934 of Public Law 105–85 ................................................ 943

2. MATTERS RELATING TO VOTING BY MEMBERS OF THE

UNIFORMED SERVICES:

a. Uniformed and Overseas Citizens Absentee Voting Act (Public

Law 99–410) .................................................................................... 944

b. Section 1604 of Public Law 107–107 ............................................ 950

3. NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

COMMISSIONED OFFICERS CORPS ACT OF 2002 ....................... 952

4. EDUCATIONAL SERVICES FOR MEMBERS (Section 1212 of

Public Law 99–145) ............................................................................... 966

5. RECRUITING EFFORTS:

a. Treating Persons with GED or Home School Diploma as Eligible for Enlistment in Armed Forces (Section 571 of Public

Law 105–261) .................................................................................. 968

b. Army College First Pilot Program for Delayed Entry into

Active Service in the Army (Section 573 of Public Law 106–

65) .................................................................................................... 969

c. Pilot Programs to Enhance Recruiting (Sections 561 and 564

of Public Law 106–398) .................................................................. 971

6. EXPERIMENTAL PERSONNEL PROGRAM FOR SCIENTIFIC

AND TECHNICAL PERSONNEL (Section 1101 of Public Law 105–

261) ......................................................................................................... 975

7. DEFENSE REFORM INITIATIVE ENTERPRISE PROGRAM FOR

MILITARY MANPOWER AND PERSONNEL INFORMATION

(Section 8147 of Public Law 105–262) ................................................. 978

8. TROOPS-TO-TEACHERS PROGRAM (Part C of Title II of the

Elementary and Secondary Education Act of 1965) ........................... 980

9. PILOT PROGRAM FOR REENGINEERING THE EQUAL

EMPLOYMENT OPPORTUNITY COMPLAINT PROCESS (Section

1111 of 106–398) .................................................................................... 989

10. AMERICAN SERVICEMEMBERS’ PROTECTION ACT OF 2002

(Title II of Public Law 107–206) ........................................................... 991

H. FAMILY AND SPOUSE PROVISIONS: ........................................................... 1003
Page

xi

H. FAMILY AND SPOUSE PROVISIONS—Continued

1. SPECIAL ANNUITY PROGRAMS FOR CERTAIN SURVIVING

SPOUSES NOT COVERED BY SURVIVOR BENEFIT PLAN (including the following laws):

a. Section 4 of Public Law 92–425 (Minimum Income for Certain

Widows) ........................................................................................... 1005

b. Section 5 of the Uniformed Services Survivor Benefits Amendments of 1980 .................................................................................. 1006

c. Section 653 of the National Defense Authorization Act, Fiscal

Year 1989 ........................................................................................ 1007

d. Section 635 of the National Defense Authorization Act for

Fiscal Year 1996 (Relief from Previous Overpayments) .............. 1009

e. Section 644 of the National Defense Authorization Act for

Fiscal Year 1998 (Annuities for Certain Military Surviving

Spouses) ........................................................................................... 1009

f. Section 642 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (SBP open enrollment period) . 1010

2. DEFENSE DEPENDENTS’ EDUCATION (including the following

laws):

a. Defense Dependents’ Education Act of 1978 ............................... 1013

b. Pilot Program on Private Operation of Defense Dependents’

Schools (Section 355 of Public Law 104–106) ............................... 1022

c. Defense Department Overseas Teachers Pay and Personnel

Practices Act ................................................................................... 1022

3. IMPACT AID (including provisions from the following laws):

a. Title VIII of the Elementary and Secondary Education Act

of 1965 (Impact Aid) ....................................................................... 1029

b. National Defense Authorization Act for Fiscal Year 2004 ......... 1069

c. Floyd D. Spence National Defense Authorization Act for Fiscal

Year 2001 ........................................................................................ 1070

d. National Defense Authorization Act for Fiscal Year 1993 ......... 1074

4. COORDINATION OF PERMANENT CHANGE OF STATION

MOVES WITH SCHOOL YEAR (Section 612 of Public Law 99–

661) ......................................................................................................... 1077

5. REGULATIONS REGARDING EMPLOYMENT AND VOLUNTEER WORK OF SPOUSES OF MILITARY PERSONNEL (Section

637 of Public Law 100–180) .................................................................. 1079

6. PREVENTION OF DOMESTIC VIOLENCE (including provisions

from the following laws):

a. Victims’ Advocates Programs in Department of Defense (Section 534 of Public Law 103–337) ................................................... 1081

b. Subtitle K of title V of the National Defense Authorization

Act for Fiscal Year 2000 (Public Law 106–65) ............................. 1082

7. CHILD SUPPORT AND ALIMONY OBLIGATIONS

a. Enforcement of Child Support Obligations of Members (Section

363 of Public Law 104–193) ........................................................... 1087

b. Pilot Program on Alternative Notice of Receipt of Legal Process for Garnishment of Federal Pay for Child Support and

Alimony (Section 1061 of Public Law 105–261) ........................... 1088

8. RECOGNITION OF MILITARY FAMILIES (Section 581 of Public

Law 108–136) ......................................................................................... 1091

I. DEFENSE INDUSTRIAL BASE, ECONOMIC CONVERSION AND TRANSITION, AND WORKFORCE AND DEPOT ISSUES: ...................................... 1093
Page

xii

I. DEFENSE INDUSTRIAL BASE, ECONOMIC CONVERSION AND TRANSITION, AND WORKFORCE AND DEPOT ISSUES—Continued

1. PROVISIONS FROM DEFENSE CONVERSION, REINVESTMENT, AND TRANSITION ASSISTANCE ACTS (including provisions from the following laws):

a. Defense Conversion, Reinvestment, and Transition Assistance

Amendments of 1993 ...................................................................... 1095

b. Defense Conversion, Reinvestment, and Transition Assistance

Act of 1992 ...................................................................................... 1106

c. Defense Economic Adjustment, Diversification, Conversion,

and Stabilization Act of 1990 ........................................................ 1114

2. DEFENSE EXPERIMENTAL PROGRAM TO STIMULATE COMPETITIVE RESEARCH (Section 257 of Public Law 103–337) .......... 1120

3. POLICY REGARDING PERFORMANCE OF DEPOT-LEVEL

MAINTENANCE AND REPAIR FOR THE DEPARTMENT OF

DEFENSE (Section 311 of Public Law 104–106) ................................ 1122

4. PILOT PROGRAMS FOR CONVERTED DEFENSE EMPLOYEES

(Section 1616 of Public Law 104–201) ................................................. 1127

5. PILOT PROGRAM ON SALES OF MANUFACTURED ARTICLES

AND SERVICES OF CERTAIN ARMY INDUSTRIAL FACILITIES

WITHOUT REGARD TO AVAILABILITY FROM DOMESTIC

SOURCES (Section 141 of Public Law 105–85) .................................. 1132

6. PILOT PROGRAMS FOR REVITALIZING LABORATORIES AND

TEST AND EVALUATION CENTERS OF THE DEPARTMENT

OF DEFENSE. (Section 2892 of Public Law 104–106, section 246

of Public Law 105–261, and section 245 of Public Law 106–65) ....... 1134

7. NAVY HIGHER EDUCATION PILOT PROGRAM REGARDING

ADMINISTRATION OF BUSINESS RELATIONSHIPS BETWEEN

GOVERNMENT AND PRIVATE SECTOR (Section 1108 of Public

Law 105–85) ........................................................................................... 1138

8. ARSENAL SUPPORT PROGRAM INITIATIVE (Section 343 of

Public Law 106–398) ............................................................................. 1140

9. MISCELLANEOUS WORKPLACE AND DEPOT ISSUES FROM

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL

YEAR 2004 (Public Law 108–136) ....................................................... 1143

J. MISCELLANEOUS MATTERS: ......................................................................... 1149

1. CORPORATION FOR THE PROMOTION OF RIFLE PRACTICE

AND FIREARMS SAFETY (Chapter 407 of title 36, United States

Code) ....................................................................................................... 1151

2. MISCELLANEOUS AUTHORITIES TO TRANSFER EXCESS DEFENSE PERSONAL PROPERTY:

a. Wildfire Suppression Aircraft Transfer Act of 1996 (Public

Law 104–307) .................................................................................. 1158

b. Authority to Sell Aircraft and Aircraft Parts for Use in Responding to Oil Spills (Section 740 of Public Law 106–181) ....... 1159

3. WARRANTY CLAIMS RECOVERY PILOT PROGRAM AND

FRAUD, WASTE, AND ABUSE INVESTIGATIONS (Sections 391

and 392 of Public Law 105–85) ............................................................ 1162

4. GOVERNMENT INFORMATION SECURITY REFORM (Subchapter II of Chapter 35, Title 44, United States Code) .................... 1164

5. NAVY-MARINE CORPS INTRANET (Section 814 of Public Law

106–398) ................................................................................................. 1183
(xiii)

PREFACE

Volume II of the Compilation of Defense-Related Federal Laws

contains the text of title 32, United States Code (the National

Guard), title 37, United States Code (Pay and Allowances of the

Uniformed Services), and additional provisions of law of interest to

the Committee on Armed Services of the House of Representatives

and the defense community. In the case of titles 32 and 37, United

States Code, this publication shows the current text of the titles

and a listing, after each section, of the statute that added the section to the Code and any statutes that have since amended it. The

official publication of the United States Code (prepared by the Office of the Law Revision Counsel of the House of Representatives)

and commercial publications of the Code include additional reference material after each section, including material showing the

actual textual changes made by each amendment and relevant effective date and transitional provisions. Commercial publications of

the Code also indicate relevant court decisions referring to a section of the Code.

The Committee on Armed Services of the House of Representatives also produces other publications containing defense-related

laws. One publication contains the text of title 10, United States

Code. This title of the United States Code contains the organic law

governing the Armed Forces of the United States and provides for

the organization of the Department of Defense, including the military departments and the reserve components. Title 10 was enacted into positive law by the Act of August 10, 1956 (70A Stat. 1),

as a codification of all laws then in existence that were permanent

and of general applicability to the Armed Forces. Other relevant

committee publications containing defense-related laws are ‘‘Laws

Relating to Federal Procurement’’, ‘‘Compilation of Defense HealthRelated Federal Laws’’, and ‘‘Compilation of Defense Nuclear-Related Federal Laws’’.

1

A. TITLE 32—NATIONAL GUARD

[As amended through the end of the first session of the

108th Congress, December 31, 2003]

3

1This table of chapters and the following table of sections are not part of title 32, as codified

in the United States Code, but are included for the convenience of the reader.

TABLE OF CHAPTERS OF TITLE 32 1

TITLE 32, UNITED STATES CODE

NATIONAL GUARD

Chap. Sec.

1. Organization .................................................................... 101

3. Personnel ......................................................................... 301

5. Training ........................................................................... 501

7. Service, Supply, and Procurement ................................ 701

TABLE OF SECTIONS OF TITLE 32

CHAPTER 1—ORGANIZATION

Sec.

101. Definitions.

102. General policy.

103. Branches and organizations.

104. Units: location; organization; command.

105. Inspection.

106. Annual appropriations.

107. Availability of appropriations.

108. Forfeiture of Federal benefits.

109. Maintenance of other troops.

110. Regulations.

111. Suspension of certain provisions of this title.

112. Drug interdiction and counter-drug activities.

113. Federal financial assistance for support of additional duties assigned to the

Army National Guard.

114. Funeral honors functions at funerals for veterans.

115. Funeral honors duty performed as a Federal function.

CHAPTER 3—PERSONNEL

Sec.

301. Federal recognition of enlisted members.

302. Enlistments, reenlistments, and extensions.

303. Active and inactive enlistments and transfers.

304. Enlistment oath.

305. Federal recognition of commissioned officers: persons eligible.

307. Federal recognition of officers: examination; certificate of eligibility.

308. Federal recognition of officers: temporary recognition.

309. Federal recognition of National Guard officers: officers promoted to fill

vacancies.
TABLE OF SECTIONS OF TITLE 32 4

310. Federal recognition of National Guard officers: automatic recognition.

312. Appointment oath.

313. Appointments and enlistments: age limitations.

314. Adjutants general.

315. Detail of regular members of Army and Air Force to duty with National

Guard.

316. Detail of members of Army National Guard for rifle instruction of civilians.

317. Command during joint exercises with Federal troops.

[318 to 321. Repealed.]

322. Discharge of enlisted members.

323. Withdrawal of Federal recognition.

324. Discharge of officers; termination of appointment.

325. Relief from National Guard duty when ordered to active duty.

326. Courts-martial of National Guard not in Federal service: composition,

jurisdiction, and procedures.

327. Courts-martial of National Guard not in Federal service: convening authority.

CHAPTER 5—TRAINING

Sec.

501. Training generally.

502. Required drills and field exercises.

503. Participation in field exercises.

504. National Guard schools and small arms competitions.

505. Army and Air Force schools and field exercises.

506. Assignment and detail of members of Regular Army or Regular Air Force

for instruction of National Guard.

507. Instruction in firing; supply of ammunition.

508. Assistance for certain youth and charitable organizations.

509. National Guard Challenge Program of opportunities for civilian youth.

CHAPTER 7—SERVICE, SUPPLY, AND PROCUREMENT

Sec.

701. Uniforms, arms, and equipment to be same as Army or Air Force.

702. Issue of supplies.

703. Purchases of supplies by States from Army or Air Force.

704. Accountability: relief from upon order to active duty.

705. Purchase of uniforms and equipment by officers of National Guard from

Army or Air Force.

706. Return of arms and equipment upon relief from Federal service.

707. Use of public buildings for offices by instructors.

708. Property and fiscal officers.

709. Technicians: employment, use, status.

710. Accountability for property issued to the National Guard.

711. Disposition of obsolete or condemned property.

712. Disposition of proceeds of condemned stores issued to National Guard.

713. Official mail: free transmission.

714. Final settlement of accounts: deceased members.

715. Property loss; personal injury or death: activities under certain sections of

this title.

716. Claims for overpayment of pay and allowances, and travel and transportation allowances.
5

Chap. Sec.

1. Organization .................................................................... 101

3. Personnel ......................................................................... 301

5. Training ........................................................................... 501

7. Service, Supply, and Procurement ................................ 701

7

CHAPTER 1—ORGANIZATION

Sec.

101. Definitions.

102. General policy.

103. Branches and organizations.

104. Units: location; organization; command.

105. Inspection.

106. Annual appropriations.

107. Availability of appropriations.

108. Forfeiture of Federal benefits.

109. Maintenance of other troops.

110. Regulations.

111. Suspension of certain provisions of this title.

112. Drug interdiction and counter-drug activities.

113. Federal financial assistance for support of additional duties assigned to the

Army National Guard.

114. Funeral honors functions at funerals for veterans.

115. Funeral honors duty performed as a Federal function.

§ 101. Definitions

In addition to the definitions in sections 1–5 of title 1, the following definitions apply in this title:

(1) ‘‘Territory’’ means any Territory organized after this

title is enacted, so long as it remains a Territory. However, for

purposes of this title and other laws relating to the militia, the

National Guard, the Army National Guard of the United

States, and the Air National Guard of the United States, ‘‘Territory’’ includes Guam and the Virgin Islands.

(2) ‘‘Armed forces’’ means the Army, Navy, Air Force, Marine Corps, and Coast Guard.

(3) ‘‘National Guard’’ means the Army National Guard and

the Air National Guard.

(4) ‘‘Army National Guard’’ means that part of the organized militia of the several States and Territories, Puerto Rico

and the District of Columbia, active and inactive, that—

(A) is a land force;

(B) is trained, and has its officers appointed, under the

sixteenth clause of section 8, article I, of the Constitution;

(C) is organized, armed, and equipped wholly or partly

at Federal expense; and

(D) is federally recognized.

(5) ‘‘Army National Guard of the United States’’ means the

reserve component of the Army all of whose members are

members of the Army National Guard.

(6) ‘‘Air National Guard’’ means that part of the organized

militia of the several States and Territories, Puerto Rico and

the District of Columbia, active and inactive, that—

(A) is an air force;

(B) is trained, and has its officers appointed, under the

sixteenth clause of section 8, article I of the Constitution;
§ 102 TITLE 32—CH. 1—ORGANIZATION 8

(C) is organized, armed, and equipped wholly or partly

at Federal expense; and

(D) is federally recognized.

(7) ‘‘Air National Guard of the United States’’ means the

reserve component of the Air Force all of whose members are

members of the Air National Guard.

(8) ‘‘Officer’’ means commissioned or warrant officer.

(9) ‘‘Enlisted member’’ means a person enlisted in, or inducted, called, or conscripted into, an armed force in an enlisted grade.

(10) ‘‘Grade’’ means a step or degree, in a graduated scale

of office or military rank, that is established and designated as

a grade by law or regulation.

(11) ‘‘Rank’’ means the order of precedence among members of the armed forces.

(12) ‘‘Active duty’’ means full-time duty in the active military service of the United States. It includes such Federal duty

as full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the

military department concerned. It does not include full-time

National Guard duty.

(13) ‘‘Supplies’’ includes material, equipment, and stores of

all kinds.

(14) ‘‘Shall’’ is used in an imperative sense.

(15) ‘‘May’’ is used in a permissive sense. The words ‘‘no

person may * * *’’ mean that no person is required, authorized, or permitted to do the act prescribed.

(16) ‘‘Includes’’ means ‘‘includes but is not limited to’’.

(17) ‘‘Pay’’ includes basic pay, special pay, incentive pay,

retired pay, and equivalent pay, but does not include allowances.

(18) ‘‘Spouse’’ means husband or wife, as the case may be.

(19) ‘‘Full-time National Guard duty’’ means training or

other duty, other than inactive duty, performed by a member

of the Army National Guard of the United States or the Air

National Guard of the United States in the member’s status as

a member of the National Guard of a State or territory, the

Commonwealth of Puerto Rico, or the District of Columbia

under section 316, 502, 503, 504, or 505 of this title for which

the member is entitled to pay from the United States or for

which the member has waived pay from the United States.

(Aug. 10, 1956, ch. 1041, 70A Stat. 596; amended Sept. 2, 1958, P.L. 85–861, § 2(1), 72 Stat.

1542; June 25, 1959, P.L. 86–70, § 27, 73 Stat. 148; July 12, 1960, P.L. 86–624, § 22, 74 Stat.

417; Oct. 13, 1972, P.L. 92–492, § 2(a), 86 Stat. 810; Dec. 12, 1980, P.L. 96–513, § 507(a), 94

Stat. 2919; Dec. 24, 1980, P.L. 96–600, § 3(a), 94 Stat. 3493; Oct. 19, 1984, P.L. 98–525,

§ 414(b)(1), 98 Stat. 2519; Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), 102 Stat. 2059.)

§ 102. General policy

In accordance with the traditional military policy of the United

States, it is essential that the strength and organization of the

Army National Guard and the Air National Guard as an integral

part of the first line defenses of the United States be maintained

and assured at all times. Whenever Congress determines that more

units and organizations are needed for the national security than

are in the regular components of the ground and air forces, the
9 § 104 TITLE 32—CH. 1—ORGANIZATION

Army National Guard of the United States and the Air National

Guard of the United States, or such parts of them as are needed,

together with such units of other reserve components as are necessary for a balanced force, shall be ordered to active Federal duty

and retained as long as so needed.

(Aug. 10, 1956, ch. 1041, 70A Stat. 597.)

§ 103. Branches and organizations

The Army National Guard of each State and Territory, Puerto

Rico and the District of Columbia includes such members of the

staff corps corresponding to the staff corps of the Army as the Secretary of the Army may authorize.

(Aug. 10, 1956, ch. 1041, 70A Stat. 597; amended Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), 102

Stat. 2059.)

§ 104. Units: location; organization; command

(a) Each State or Territory and Puerto Rico and may fix the

location of the units and headquarters of its National Guard.

(b) Except as otherwise specifically provided in this title, the

organization of the Army National Guard and the composition of its

units shall be the same as those prescribed for the Army, subject,

in time of peace, to such general exceptions as the Secretary of the

Army may authorize; and the organization of the Air National

Guard and the composition of its units shall be the same as those

prescribed for the Air Force, subject, in time of peace, to such general exceptions as the Secretary of the Air Force may authorize.

(c) To secure a force the units of which when combined will

form complete higher tactical units, the President may designate

the units of the National Guard, by branch of the Army or organization of the Air Force, to be maintained in each State and Territory, Puerto Rico and the District of Columbia. However, no change

in the branch, organization, or allotment of a unit located entirely

within a State may be made without the approval of its governor.

(d) To maintain appropriate organization and to assist in training and instruction, the President may assign the National Guard

to divisions, wings, and other tactical units, and may detail commissioned officers of the National Guard or of the Regular Army

or the Regular Air Force, as the case may be, to command those

units. However, the commanding officer of a unit organized wholly

within a State or Territory, Puerto Rico or the District of Columbia

may not be displaced under this subsection.

(e) To insure prompt mobilization of the National Guard in

time of war or other emergency, the President may, in time of

peace, detail a commissioned officer of the Regular Army to perform the duties of chief of staff for each fully organized division of

the Army National Guard, and a commissioned officer of the Regular Air Force to perform the duties of the corresponding position

for each fully organized wing of the Air National Guard.

(f) Unless the President consents—

(1) an organization of the National Guard whose members

have received compensation from the United States as members of the National Guard may not be disbanded; and
§ 105 TITLE 32—CH. 1—ORGANIZATION 10

(2) the actual strength of such an organization in commissioned officers or enlisted members may not be reduced below

the minimum strength prescribed by the President.

(Aug. 10, 1956, ch. 1041, 70A Stat. 598; amended Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), (2),

102 Stat. 2059.)

§ 105. Inspection

(a) Under regulations prescribed by him, the Secretary of the

Army shall have an inspection made by inspectors general, or, if

necessary, by any other commissioned officers of the Regular Army

detailed for that purpose, to determine whether—

(1) the amount and condition of property held by the Army

National Guard are satisfactory;

(2) the Army National Guard is organized as provided in

this title;

(3) the members of the Army National Guard meet prescribed physical and other qualifications;

(4) the Army National Guard and its organization are

properly uniformed, armed, and equipped and are being

trained and instructed for active duty in the field, or for coast

defense;

(5) Army National Guard records are being kept in accordance with this title;

(6) the accounts and records of each property and fiscal officer are properly maintained; and

(7) the units of the Army National Guard meet requirements for deployment.

The Secretary of the Air Force has a similar duty with respect to

the Air National Guard.

(b) The reports of inspections under subsection (a) are the basis

for determining whether the National Guard is entitled to the issue

of military property as authorized under this title and to retain

that property; and for determining which organizations and persons constitute units and members of the National Guard; and for

determining which units of the National Guard meet deployability

standards.

(Aug. 10, 1956, ch. 1041, 70A Stat. 598; amended July 30, 1977, P.L. 95–79, § 804(a), 91 Stat.

333; Oct. 23, 1992, P.L. 102–484, § 1122, 106 Stat. 2540.)

§ 106. Annual appropriations

Sums will be appropriated annually, out of any money in the

Treasury not otherwise appropriated, for the support of the Army

National Guard and the Air National Guard, including the issue of

arms, ordnance stores, quartermaster stores, camp equipage, and

other military supplies, and for the payment of other expenses authorized by law.

(Aug. 10, 1956, ch. 1041, 70A Stat. 599.)

§ 107. Availability of appropriations

(a) Under such regulations as the Secretary concerned may

prescribe, appropriations for the National Guard are available for—

(1) the necessary expenses of members of a regular or reserve component of the Army or the Air Force traveling on

duty in connection with the National Guard;
11 § 109 TITLE 32—CH. 1—ORGANIZATION

(2) the necessary expenses of members of the Regular

Army or the Regular Air Force on duty in the National Guard

Bureau or with the Army Staff or the Air Staff, traveling to

and from annual conventions of the Enlisted Association of the

National Guard of the United States, the National Guard Association of the United States, or the Adjutants General Association;

(3) the transportation of supplies furnished to the National

Guard as permanent equipment;

(4) the office rent and necessary office expenses of officers

of a regular or reserve component of the Army or the Air Force

on duty with the National Guard;

(5) the expenses of the National Guard Bureau, including

clerical services;

(6) the promotion of rifle practice, including the acquisition, construction, maintenance, and equipment of shooting

galleries and suitable target ranges;

(7) such incidental expenses of authorized encampments,

maneuvers, and field instruction as the Secretary considers

necessary; and

(8) other expenses of the National Guard authorized by

law.

(b) The expenses of enlisted members of the Regular Army or

the Regular Air Force on duty with the National Guard shall be

paid from appropriations for the Army National Guard or the Air

National Guard, as the case may be, but not from the allotment of

a State or Territory, Puerto Rico or the District of Columbia. Payable expenses include allowances for subsistence and housing

under sections 402 and 403 of title 37 and expenses for medicine

and medical attendance.

(c) The pay and allowances for the Chief of the National Guard

Bureau and officers of the Army National Guard of the United

States or the Air National Guard of the United States called to active duty under section 12402 of title 10 shall be paid from appropriations for the pay of the Army National Guard or Air National

Guard.

(Aug. 10, 1956, ch. 1041, 70A Stat. 599; amended Sept. 11, 1967, P.L. 90–83, § 4, 81 Stat. 220;

Aug. 13, 1971, P.L. 92–119, § 1(a), 85 Stat. 340; Sept. 13, 1982, P.L. 97–258, § 2(h), 96 Stat.

1061; Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), 102 Stat. 2059; Oct. 5, 1994, P.L. 103–337,

§ 1676(a)(1), 108 Stat. 3019; Nov. 18, 1997, P.L. 105–85, § 603(d)(2)(E), 111 Stat. 1783; Nov. 24,

2003, P.L. 108–136, § 514(a), 117 Stat. 1460.)

§ 108. Forfeiture of Federal benefits

If, within a time fixed by the President, a State fails to comply

with a requirement of this title, or a regulation prescribed under

this title, the National Guard of that State is barred, in whole or

in part, as the President may prescribe, from receiving money or

any other aid, benefit, or privilege authorized by law.

(Aug. 10, 1956, ch. 1041, 70A Stat. 600; amended Oct. 5, 1994, P.L. 103–337, § 904(c), 108 Stat.

2827.)

§ 109. Maintenance of other troops

(a) In time of peace, a State or Territory, Puerto Rico, the Virgin Islands or the District of Columbia may maintain no troops

other than those of its National Guard and defense forces authorized by subsection (c).
§ 110 TITLE 32—CH. 1—ORGANIZATION 12

(b) Nothing in this title limits the right of a State or Territory,

Puerto Rico, the Virgin Islands or the District of Columbia to use

its National Guard or its defense forces authorized by subsection

(c) within its borders in time of peace, or prevents it from organizing and maintaining police or constabulary.

(c) In addition to its National Guard, if any, a State or Territory, Puerto Rico, the Virgin Islands or the District of Columbia

may, as provided by its laws, organize and maintain defense forces.

A defense force established under this section may be used within

the jurisdiction concerned, as its chief executive (or commanding

general in the case of the District of Columbia) considers necessary,

but it may not be called, ordered, or drafted into the armed forces.

(d) A member of a defense force established under subsection

(c) is not, because of that membership, exempt from service in the

armed forces, nor is he entitled to pay, allowances, subsistence,

transportation, or medical care or treatment, from funds of the

United States.

(e) A person may not become a member of a defense force established under subsection (c) if he is a member of a reserve component of the armed forces.

(Aug. 10, 1956, ch. 1041, 70A Stat. 600; amended Sept. 2, 1958, P.L. 85–861, § 2(2), 72 Stat.

1542; Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), 102 Stat. 2059.)

§ 110. Regulations

The President shall prescribe regulations, and issue orders,

necessary to organize, discipline, and govern the National Guard.

(Aug. 10, 1956, ch. 1041, 70A Stat. 600.)

§ 111. Suspension of certain provisions of this title

In time of war, or of emergency declared by Congress, the

President may suspend the operation of any provision of sections

307(e), 309, 310, and 323(d) and (e) of this title with respect to the

Army National Guard or the Air National Guard.

(Added P.L. 85–861, § 2(3), Sept. 2, 1958, 72 Stat. 1543.)

§ 112. Drug interdiction and counter-drug activities

(a) FUNDING ASSISTANCE.—The Secretary of Defense may provide funds to the Governor of a State who submits to the Secretary

a State drug interdiction and counter-drug activities plan satisfying

the requirements of subsection (c). Such funds shall be used for the

following:

(1) The pay, allowances, clothing, subsistence, gratuities,

travel, and related expenses, as authorized by State law, of

personnel of the National Guard of that State used, while not

in Federal service, for the purpose of drug interdiction and

counter-drug activities.

(2) The operation and maintenance of the equipment and

facilities of the National Guard of that State used for the purpose of drug interdiction and counter-drug activities.

(3) The procurement of services and equipment, and the

leasing of equipment, for the National Guard of that State

used for the purpose of drug interdiction and counter-drug activities. However, the use of such funds for the procurement of

equipment may not exceed $5,000 per item, unless approval for
13 § 112 TITLE 32—CH. 1—ORGANIZATION

procurement of equipment in excess of that amount is granted

in advance by the Secretary of Defense.

(b) USE OF PERSONNEL PERFORMING FULL-TIME NATIONAL

GUARD DUTY.—(1) Under regulations prescribed by the Secretary of

Defense, personnel of the National Guard of a State may, in accordance with the State drug interdiction and counter-drug activities

plan referred to in subsection (c), be ordered to perform full-time

National Guard duty under section 502(f) of this title for the purpose of carrying out drug interdiction and counter-drug activities.

(2)(A) A member of the National Guard serving on full-time

National Guard duty under orders authorized under paragraph (1)

shall participate in the training required under section 502(a) of

this title in addition to the duty performed for the purpose authorized under that paragraph. The pay, allowances, and other benefits

of the member while participating in the training shall be the same

as those to which the member is entitled while performing duty for

the purpose of carrying out drug interdiction and counter-drug activities. The member is not entitled to additional pay, allowances,

or other benefits for participation in training required under section 502(a)(1) of this title.

(B) Appropriations available for the Department of Defense for

drug interdiction and counter-drug activities may be used for paying costs associated with a member’s participation in training described in subparagraph (A). The appropriation shall be reimbursed

in full, out of appropriations available for paying those costs, for

the amounts paid. Appropriations available for paying those costs

shall be available for making the reimbursements.

(C) To ensure that the use of units and personnel of the National Guard of a State pursuant to a State drug interdiction and

counter-drug activities plan does not degrade the training and

readiness of such units and personnel, the following requirements

shall apply in determining the drug interdiction and counter-drug

activities that units and personnel of the National Guard of a State

may perform:

(i) The performance of the activities may not adversely affect the quality of that training or otherwise interfere with the

ability of a member or unit of the National Guard to perform

the military functions of the member or unit.

(ii) National Guard personnel will not degrade their military skills as a result of performing the activities.

(iii) The performance of the activities will not result in a

significant increase in the cost of training.

(iv) In the case of drug interdiction and counter-drug activities performed by a unit organized to serve as a unit, the

activities will support valid unit training requirements.

(3) A unit or member of the National Guard of a State may be

used, pursuant to a State drug interdiction and counter-drug activities plan approved by the Secretary of Defense under this section,

to provide services or other assistance (other than air transportation) to an organization eligible to receive services under section

508 of this title if—

(A) the State drug interdiction and counter-drug activities

plan specifically recognizes the organization as being eligible to

receive the services or assistance;
§ 112 TITLE 32—CH. 1—ORGANIZATION 14

(B) in the case of services, the performance of the services

meets the requirements of paragraphs (1) and (2) of subsection

(a) of section 508 of this title; and

(C) the services or assistance is authorized under subsection (b) or (c) of such section or in the State drug interdiction and counter-drug activities plan.

(c) PLAN REQUIREMENTS.—A State drug interdiction and

counter-drug activities plan shall—

(1) specify how personnel of the National Guard of that

State are to be used in drug interdiction and counter-drug activities;

(2) certify that those operations are to be conducted at a

time when the personnel involved are not in Federal service;

(3) certify that participation by National Guard personnel

in those operations is service in addition to training required

under section 502 of this title;

(4) certify that any engineer-type activities (as defined by

the Secretary of Defense) under the plan will be performed

only by units and members of the National Guard;

(5) include a certification by the Attorney General of the

State (or, in the case of a State with no position of Attorney

General, a civilian official of the State equivalent to a State attorney general) that the use of the National Guard of the State

for the activities proposed under the plan is authorized by, and

is consistent with, State law; and

(6) certify that the Governor of the State or a civilian law

enforcement official of the State designated by the Governor

has determined that any activities included in the plan that

are carried out in conjunction with Federal law enforcement

agencies serve a State law enforcement purpose.

(d) EXAMINATION OF PLAN.—(1) Before funds are provided to

the Governor of a State under this section and before members of

the National Guard of that State are ordered to full-time National

Guard duty as authorized in subsection (b), the Secretary of Defense shall examine the adequacy of the plan submitted by the

Governor under subsection (c). The plan as approved by the Secretary may provide for the use of personnel and equipment of the

National Guard of that State to assist the Immigration and Naturalization Service in the transportation of aliens who have violated

a Federal or State law prohibiting or regulating the possession,

use, or distribution of a controlled substance.

(2) Except as provided in paragraph (3), the Secretary shall

carry out paragraph (1) in consultation with the Director of National Drug Control Policy.

(3) Paragraph (2) shall not apply if—

(A) the Governor of a State submits a plan under subsection (c) that is substantially the same as a plan submitted

for that State for a previous fiscal year; and

(B) pursuant to the plan submitted for a previous fiscal

year, funds were provided to the State in accordance with subsection (a) or personnel of the National Guard of the State

were ordered to perform full-time National Guard duty in accordance with subsection (b).

(e) EXCLUSION FROM END-STRENGTH COMPUTATION.—Members

of the National Guard on active duty or full-time National Guard
15 § 112 TITLE 32—CH. 1—ORGANIZATION

duty for the purposes of administering (or during fiscal year 1993

otherwise implementing) this section shall not be counted toward

the annual end strength authorized for reserves on active duty in

support of the reserve components of the armed forces or toward

the strengths authorized in sections 12011 and 12012 of title 10.

(f) END STRENGTH LIMITATION.—(1) Except as provided in

paragraph (2), at the end of a fiscal year there may not be more

than 4000 members of the National Guard—

(A) on full-time National Guard duty under section 502(f)

of this title to perform drug interdiction or counter-drug activities pursuant to an order to duty for a period of more than 180

days; or

(B) on duty under State authority to perform drug interdiction or counter-drug activities pursuant to an order to duty for

a period of more than 180 days with State pay and allowances

being reimbursed with funds provided under subsection (a)(1).

(2) The Secretary of Defense may increase the end strength authorized under paragraph (1) by not more than 20 percent for any

fiscal year if the Secretary determines that such an increase is necessary in the national security interests of the United States.

(g) ANNUAL REPORT.—The Secretary of Defense shall submit to

Congress an annual report regarding assistance provided and activities carried out under this section during the preceding fiscal

year. The report shall include the following:

(1) The number of members of the National Guard excluded under subsection (e) from the computation of end

strengths.

(2) A description of the drug interdiction and counter-drug

activities conducted under State drug interdiction and counterdrug activities plans referred to in subsection (c) with funds

provided under this section.

(3) An accounting of the amount of funds provided to each

State.

(4) A description of the effect on military training and

readiness of using units and personnel of the National Guard

to perform activities under the State drug interdiction and

counter-drug activities plans.

(h) STATUTORY CONSTRUCTION.—Nothing in this section shall

be construed as a limitation on the authority of any unit of the National Guard of a State, when such unit is not in Federal service,

to perform law enforcement functions authorized to be performed

by the National Guard by the laws of the State concerned.

(i) DEFINITIONS.—For purposes of this section:

(1) The term ‘‘drug interdiction and counter-drug activities’’, with respect to the National Guard of a State, means the

use of National Guard personnel in drug interdiction and

counter-drug law enforcement activities, including drug demand reduction activities, authorized by the law of the State

and requested by the Governor of the State.

(2) The term ‘‘Governor of a State’’ means, in the case of

the District of Columbia, the Commanding General of the National Guard of the District of Columbia.

(3) The term ‘‘State’’ means each of the several States, the

District of Columbia, the Commonwealth of Puerto Rico, or a

territory or possession of the United States.
§ 113 TITLE 32—CH. 1—ORGANIZATION 16

(Added P.L. 101-189, § 1207(a)(1), Nov. 29, 1989, 103 Stat. 1564; amended P.L. 102–25, § 703,

April 6, 1991, 105 Stat. 118; P.L. 102–396, § 9099A, Oct 6, 1992, 106 Stat. 1926; P.L. 104–106,

§ 1021, Feb. 10, 1996, 110 Stat. 426; Nov. 18, 1997, P.L. 105–85, § 1031, 111 Stat. 1880; P.L.

105–261, § 1022, Oct. 16, 1998, 112 Stat. 2120; P.L. 106–65, § 1021, Oct. 5, 1999, 113 Stat. 746.)

§ 113. Federal financial assistance for support of additional

duties assigned to the Army National Guard

(a) AUTHORITY.—The Secretary of the Army may provide financial assistance to a State to support activities carried out by the

Army National Guard of the State in the performance of duties

that the Secretary has assigned, with the consent of the Chief of

the National Guard Bureau, to the Army National Guard of the

State. The Secretary shall determine the amount of the assistance

that is appropriate for the purpose.

(b) COVERED ACTIVITIES.—(1) Except as provided in paragraph

(2), financial assistance may be provided for the performance of an

activity by the Army National Guard under subsection (a) only if—

(A) the activity is carried out in the performance of a responsibility of the Secretary of the Army under paragraph (6),

(10), or (11) of section 3013(b) of title 10; and

(B) the Army National Guard was selected to perform the

activity under competitive procedures that permit all qualified

public-sector and private-sector sources to submit offers and be

considered for selection to perform the activity on the basis of

the offers.

(2) Paragraph (1)(B) does not apply to an activity that, on October 17, 1998, was performed for the Federal Government by employees of the Federal Government or employees of a State.

(c) DISBURSEMENT THROUGH NATIONAL GUARD BUREAU.—The

Secretary of the Army shall disburse any contribution under this

section through the Chief of the National Guard Bureau.

(d) AVAILABILITY OF FUNDS.—Funds appropriated for the Army

for a fiscal year are available for providing financial assistance

under this section in support of activities carried out by the Army

National Guard during that fiscal year.

(Added P.L. 105-85, § 386(a), Nov. 18, 1997, 111 Stat. 1712; amended P.L. 105–261, § 375(a), Oct.

16, 1998, 112 Stat. 1992; P.L. 106–65, § 1066(d)(4), Oct. 5, 1999, 113 Stat. 773.)

§ 114. Funeral honors functions at funerals for veterans

Subject to such regulations and restrictions as may be prescribed by the Secretary concerned, the performance of funeral honors functions by members of the National Guard at funerals for

veterans of the armed forces may be treated by the Secretary concerned as a Federal function for which appropriated funds may be

used. Any such performance of funeral honors functions at such a

funeral may not be considered to be a period of drill or training,

but may be performed as funeral honors duty under section 115 of

this title.

(Added P.L. 105-85, § 517(a), Nov. 18, 1997, 111 Stat. 1733; amended P.L. 105–261, § 567(d), Oct.

16, 1998, 112 Stat. 2031; P.L. 106–65, §§ 578(g)(1), 578(k)(3)(A), Oct. 5, 1999, 113 Stat. 627, 631.)

§ 115. Funeral honors duty performed as a Federal function

(a) ORDER TO DUTY.—A member of the Army National Guard

of the United States or the Air National Guard of the United

States may be ordered to funeral honors duty, with the consent of

the member, to prepare for or perform funeral honors functions at
17 § 115 TITLE 32—CH. 1—ORGANIZATION

the funeral of a veteran under section 1491 of title 10. However,

a member of the Army National Guard of the United States or the

Air National Guard of the United States may not be ordered to perform funeral honors functions under this section without the consent of the Governor or other appropriate authority of the State

concerned. Performance of funeral honors duty by such a member

not on active duty or full-time National Guard duty shall be treated as inactive-duty training (including with respect to travel to and

from such duty) for purposes of any provision of law other than sections 206 and 435 of title 37.

(b) SERVICE CREDIT.—A member ordered to funeral honors

duty under this section shall be required to perform a minimum of

two hours of such duty in order to receive—

(1) service credit under section 12732(a)(2)(E) of title 10;

and

(2) as directed by the Secretary concerned, either—

(A) the allowance under section 435 of title 37; or

(B) compensation under section 206 of title 37.

(c) REIMBURSABLE EXPENSES.—A member who performs funeral honors duty under this section may be reimbursed for travel

and transportation expenses incurred in conjunction with such duty

as authorized under chapter 7 of title 37 if such duty is performed

at a location 50 miles or more from the member’s residence.

(d) REGULATIONS.—The exercise of authority under subsection

(a) is subject to regulations prescribed by the Secretary of Defense.

(Added P.L. 106–65, § 578(g)(2), Oct. 5, 1999, 113 Stat. 627; amended P.L. 106–398, § 1

(§ 575(a)(1)), Oct. 30, 2000, 114 Stat. 1654A–138; P.L. 107–107, § 562(b), Dec. 28, 2001, 115 Stat.

1119.)
18

CHAPTER 3—PERSONNEL

Sec.

301. Federal recognition of enlisted members.

302. Enlistments, reenlistments, and extensions.

303. Active and inactive enlistments and transfers.

304. Enlistment oath.

305. Federal recognition of commissioned officers: persons eligible.

307. Federal recognition of officers: examination; certificate of eligibility.

308. Federal recognition of officers: temporary recognition.

309. Federal recognition of National Guard officers: officers promoted to fill

vacancies.

310. Federal recognition of National Guard officers: automatic recognition.

312. Appointment oath.

313. Appointments and enlistments: age limitations.

314. Adjutants general.

315. Detail of regular members of Army and Air Force to duty with National

Guard.

316. Detail of members of Army National Guard for rifle instruction of civilians.

317. Command during joint exercises with Federal troops.

[318 to 321. Repealed.]

322. Discharge of enlisted members.

323. Withdrawal of Federal recognition.

324. Discharge of officers; termination of appointment.

325. Relief from National Guard duty when ordered to active duty.

326. Courts-martial of National Guard not in Federal service: composition,

jurisdiction, and procedures.

327. Courts-martial of National Guard not in Federal service: convening authority.

§ 301. Federal recognition of enlisted members

To be eligible for Federal recognition as an enlisted member of

the National Guard, a person must have the qualifications prescribed by the Secretary concerned for the grade, branch, position,

and type of unit or organization involved. He becomes federally recognized upon enlisting in a federally recognized unit or organization of the National Guard.

(Aug. 10, 1956, ch. 1041, 70A Stat. 601.)

§ 302. Enlistments, reenlistments, and extensions

(a) Under regulations to be prescribed by the Secretary concerned, original enlistments in the National Guard may be accepted for—

(1) any specified term, not less than three years, for persons who have not served in an armed force; or

(2) any specified term, not less than one year, for persons

who have served in any armed force.

(b) Under regulations to be prescribed by the Secretary concerned, reenlistment in the National Guard may be accepted for

any specified period, or, if the person last served in one of the highest five enlisted grades, for an unspecified period.

(c) Enlistments or reenlistments in the National Guard may be

extended—
19 § 304 TITLE 32—CH. 3—PERSONNEL

(1) under regulations to be prescribed by the Secretary

concerned, at the request of the member, for any period not

less than six months; or

(2) by proclamation of the President, if Congress declares

an emergency, until six months after termination of that emergency.

(Aug. 10, 1956, ch. 1041, 70A Stat. 601; amended Oct. 4, 1961, P.L. 87–378, § 5(1), 75 Stat. 808.)

§ 303. Active and inactive enlistments and transfers

(a) Under regulations to be prescribed by the Secretary of the

Army, a person qualified for enlistment in the active Army National Guard may be enlisted in the inactive Army National Guard

for a single term of one or three years. Under regulations prescribed by the Secretary of the Air Force, a person qualified for enlistment in the active Air National Guard may be enlisted in the

inactive Air National Guard for a single term of one or three years.

(b) Under such regulations as the Secretary of the Army may

prescribe, an enlisted member of the active Army National Guard,

not formerly enlisted in the inactive Army National Guard, may be

transferred to the inactive Army National Guard. Under such regulations as the Secretary of the Air Force may prescribe, an enlisted

member of the active Air National Guard, not formerly enlisted in

the inactive Air National Guard, may be transferred to the inactive

Air National Guard. Under such regulations as the Secretary concerned may prescribe, a person enlisted in or transferred to the inactive Army National Guard or the inactive Air National Guard

may be transferred to the active Army National Guard or the active Air National Guard, as the case may be.

(c) In time of peace, no enlisted member may be required to

serve for a period longer than that for which he enlisted in the active or inactive National Guard.

(Aug. 10, 1956, ch. 1041, 70A Stat. 601; amended Sept. 7, 1962, P.L. 87–649, § 14e(1), 76 Stat.

502; Dec. 12, 1980, P.L. 96–513, § 515(2), 94 Stat. 2937.)

§ 304. Enlistment oath

Each person enlisting in the National Guard shall sign an enlistment contract and subscribe to the following oath:

‘‘I do hereby acknowledge to have voluntarily enlisted this

day of , 19, in the National Guard of the State of for a period of

year(s) under the conditions prescribed by law, unless

sooner discharged by proper authority.

‘‘I, , do solemnly swear (or affirm)

that I will support and defend the Constitution of the United

States and of the State of against all enemies, foreign and domestic; that I will bear true faith and allegiance to them; and that I will obey the orders of the President of the United States and the Governor of 

and the orders of the officers appointed over me, according to

law and regulations. So help me God.’’

The oath may be taken before any officer of the National Guard of

the State or Territory, or of Puerto Rico or the District of Columbia, as the case may be, or before any other person authorized by
§ 305 TITLE 32—CH. 3—PERSONNEL 20

the law of the jurisdiction concerned to administer oaths of enlistment in the National Guard.

(Aug. 10, 1956, ch. 1041, 70A Stat. 602; amended Oct. 5, 1962, P.L. 87–751, § 2, 76 Stat. 748;

Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), 102 Stat. 2059.)

§ 305. Federal recognition of commissioned officers: persons

eligible

(a) The following categories are eligible for Federal recognition

as commissioned officers of the National Guard:

(1) Members of the National Guard.

(2) Members of the Army, Navy, Air Force, or Marine

Corps.

(3) Former officers of the Army, Navy, Air Force, or Marine Corps.

(4) Former enlisted members of the Army, Navy, Air Force,

or Marine Corps who were discharged honorably or under honorable conditions.

(5) Graduates of the United States Military Academy, the

United States Naval Academy, or the United States Air Force

Academy.

(6) Graduates of a school, college, university, or officer’s

training camp who received military instruction under the supervision of a commissioned officer of the Regular Army or the

Regular Air Force, and whose fitness for appointment has been

certified by that officer.

(7) Civilians who are specially qualified for duty in a technical or staff branch or organization.

(b) To be eligible for Federal recognition under this section

with a view to serving as a nurse, a person must be a graduate of

a hospital or university training school and a registered nurse.

(Aug. 10, 1956, ch. 1041, 70A Stat. 602; amended Sept. 2, 1958, P.L. 85–861, § 2(5), 72 Stat.

1543; Nov. 8, 1967, P.L. 90–130, § 2(1), 81 Stat. 383.)

§ 307. Federal recognition of officers: examination; certificate of eligibility

(a) To be eligible for Federal recognition as an officer of the

National Guard, a person must—

(1) receive an appointment with a view to filling a vacancy

in a federally recognized unit or organization of the National

Guard;

(2) have the qualifications prescribed by the Secretary concerned for the grade, branch, position, and type of unit or organization involved; and

(3) except as provided in subsections (d) and (e) of this section, pass an examination for physical, moral, and professional

fitness to be prescribed by the President, and subscribe to the

oath of office prescribed by section 312 of this title.

(b) The examination prescribed by subsection (a)—

(1) shall be conducted, for the Army National Guard, by a

board of three commissioned officers designated by the Secretary of the Army from members of the Regular Army or the

Army National Guard of the United States, or both, and for the

Air National Guard, by a board of three commissioned officers

designated by the Secretary of the Air Force from members of
21 § 308 TITLE 32—CH. 3—PERSONNEL

the Regular Air Force or the Air National Guard of the United

States, or both; and

(2) may be held before original appointment or promotion.

(c) If such a board finds a person qualified, the Chief of the National Guard Bureau may issue to him a certificate of eligibility for

Federal recognition for the office for which he was found qualified.

If he is originally appointed or promoted within two years to that

office, he is entitled to Federal recognition without further examination, except as to physical condition.

(d) Subject to subsection (a)(1) and (2) and to such physical examination as may be prescribed, Federal recognition shall be extended to each officer of the Army Reserve who has qualified for

appointment as an officer of the Army National Guard in his reserve grade. Similarly, Federal recognition shall be extended to

each officer of the Air Force Reserve who has qualified for appointment as an officer of the Air National Guard. Federal recognition

extended under this subsection is effective from the date of appointment in the Army National Guard or the Air National Guard,

as the case may be.

(e) Subject to subsection (a)(1) and (2), Federal recognition

shall be extended to each officer of the Air Force Reserve who is

appointed in a commissioned grade in the Air National Guard to

fill a vacancy, if on the date on which he is appointed his reserve

grade is the same as the grade in which he is appointed or his

name is on a recommended list for promotion to that reserve grade.

(f) Federal recognition extended under subsection (d) or (e) is

effective from the date of appointment in the Army National Guard

or the Air National Guard, as the case may be.

(Aug. 10, 1956, ch. 1041, 70A Stat. 602; amended Sept. 2, 1958, P.L. 85–861, § 2(6), 72 Stat.

1543; Oct. 13, 1972, P.L. 92–492, § 2(b), 86 Stat. 810; Dec. 16, 1980, P.L. 96–535, 94 Stat. 3165;

Oct. 5, 1994, P.L. 103–337, § 1676(a)(2), 108 Stat. 3019.)

§ 308. Federal recognition of officers: temporary recognition

(a) The Secretary of the Army may authorize the extension of

temporary Federal recognition as an officer of the Army National

Guard to any person who has passed the examination prescribed

in section 307(b) of this title, pending his appointment as a reserve

officer of the Army. The Secretary of the Air Force may do likewise

for a person who has passed that examination pending his appointment as a reserve officer of the Air Force. Temporary recognition

so extended may be withdrawn at any time. If not sooner withdrawn or replaced by permanent recognition upon appointment as

a reserve officer in the same grade, it terminates six months after

its effective date.

(b) To be eligible for temporary Federal recognition under subsection (a), a person must take an oath that during the period of

temporary recognition he will perform his Federal duties as if he

had been appointed as a reserve officer of the Army or the Air

Force, as the case may be.

(Aug. 10, 1956, ch. 1041, 70A Stat. 603.)
§ 309 TITLE 32—CH. 3—PERSONNEL 22

§ 309. Federal recognition of National Guard officers: officers promoted to fill vacancies

Each officer of the National Guard who is promoted to fill a vacancy in a federally recognized unit of the National Guard, and

who has been on the reserve active-status list or the active-duty

list of the Army or the Air Force for at least one year and has completed the minimum years of service in grade specified in section

14303 of title 10, shall be examined for Federal recognition in the

grade to which the officer is promoted.

(Added P.L. 85–861, § 2(7), Sept. 1958, 72 Stat. 1543; amended P.L. 103–337, § 1630(1), Oct. 5,

1994, 108 Stat. 2963.)

§ 310. Federal recognition of National Guard officers: automatic recognition

(a) Notwithstanding sections 307 and 309 of this title, if a second lieutenant of the National Guard is promoted to the grade of

first lieutenant to fill a vacancy in a federally recognized unit in

the National Guard, Federal recognition is automatically extended

to that officer in the grade of first lieutenant, effective as of the

date on which that officer has completed the service in the grade

specified in section 14303(a)(1) of title 10 and has met such other

requirements as prescribed by the Secretary concerned under section 14308(b) of that title, if the officer has remained in an active

status since the officer was so recommended.

(b) Notwithstanding sections 307 and 309 of this title, if an officer of the Army Reserve in a reserve grade above second lieutenant is appointed in the next higher grade in the Army National

Guard to fill a vacancy in a federally recognized unit thereof, Federal recognition is automatically extended to him in the grade in

which he is so appointed in the Army National Guard, if he has

been recommended for promotion to the grade concerned under section 3366, 3367, 3370, or 3383 of title 10 and has remained in an

active status since he was so recommended. The extension of Federal recognition under this subsection is effective as of the date

when the officer is appointed in the Army National Guard.

(Added P.L. 85–861, § 2(7), Sept. 1958, 72 Stat. 1544; amended P.L. 103–337, § 1630(1), Oct. 5,

1994, 108 Stat. 2964.)

§ 312. Appointment oath

Each person who is appointed as an officer of the National

Guard shall subscribe to the following oath:

‘‘I, , do solemnly swear (or affirm) that I will

support and defend the Constitution of the United States and

the Constitution of the State of against all enemies,

foreign and domestic; that I will bear true faith and allegiance

to the same; that I will obey the orders of the President of the

United States and of the Governor of the State of ,

that I make this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully

discharge the duties of the office of in the National

Guard of the State of upon which I am about to

enter, so help me God.’’

(Aug. 10, 1956, ch. 1041, 70A Stat. 603.)
23 § 315 TITLE 32—CH. 3—PERSONNEL

§ 313. Appointments and enlistments: age limitations

(a) To be eligible for original enlistment in the National Guard,

a person must be at least 17 years of age and under 45, or under

64 years of age and a former member of the Regular Army, Regular

Navy, Regular Air Force, or Regular Marine Corps. To be eligible

for reenlistment, a person must be under 64 years of age.

(b) To be eligible for appointment as an officer of the National

Guard, a person must—

(1) be a citizen of the United States; and

(2) be at least 18 years of age and under 64.

(Aug. 10, 1956, ch. 1041, 70A Stat. 604; amended Sept. 2, 1958, P.L. 85–861, § 2(9), 72 Stat.

1544; Nov. 8, 1967, P.L. 90–130, § 2(2), 81 Stat. 383.)

§ 314. Adjutants general

(a) There shall be an adjutant general in each State and Territory, Puerto Rico and the District of Columbia. He shall perform

the duties prescribed by the laws of that jurisdiction.

(b) The President shall appoint the adjutant general of the District of Columbia and prescribe his grade and qualifications.

(c) The President may detail as adjutant general of the District

of Columbia any retired commissioned officer of the Regular Army

or the Regular Air Force recommended for that detail by the commanding general of the District of Columbia National Guard. An

officer detailed under this subsection is entitled to the basic pay

and allowances of his grade.

(d) The adjutant general of each State and Territory, Puerto

Rico and the District of Columbia, and officers of the National

Guard, shall make such returns and reports as the Secretary of the

Army or the Secretary of the Air Force may prescribe, and shall

make those returns and reports to the Secretary concerned or to

any officer designated by him.

(Aug. 10, 1956, ch. 1041, 70A Stat. 604; amended Sept. 2, 1958, P.L. 85–894, 72 Stat. 1713; Sept.

29, 1988, P.L. 100–456, § 1234(b)(1), (5), 102 Stat. 2059; Nov. 5, 1990, P.L. 101-510, § 1322(b),

104 Stat. 1672; Dec. 5, 1991, P.L. 102-190, § 553, 105 Stat. 1371.)

§ 315. Detail of regular members of Army and Air Force to

duty with National Guard

(a) The Secretary of the Army shall detail commissioned officers of the Regular Army to duty with the Army National Guard

of each State and Territory, Puerto Rico and the District of Columbia. The Secretary of the Air Force shall detail commissioned officers of the Regular Air Force to duty with the Air National Guard

of each State and Territory, Puerto Rico and the District of Columbia. With the permission of the President, an officer so detailed

may accept a commission in the Army National Guard or the Air

National Guard, as the case may be, terminable in the President’s

discretion, without prejudicing his rank and without vacating his

regular appointment.

(b) The Secretary of the Army may detail enlisted members of

the Regular Army for duty with the Army National Guard of each

State and Territory, Puerto Rico and the District of Columbia. The

Secretary of the Air Force may detail enlisted members of the Regular Air Force for duty with the Air National Guard of each State

and Territory, Puerto Rico and the District of Columbia.
§ 316 TITLE 32—CH. 3—PERSONNEL 24

(Aug. 10, 1956, ch. 1041, 70A Stat. 604; amended Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), 102

Stat. 2059.)

§ 316. Detail of members of Army National Guard for rifle instruction of civilians

The President may detail officers and noncommissioned officers

of the Army National Guard to duty as instructors at rifle ranges

for the training of civilians in the use of military arms.

(Aug. 10, 1956, ch. 1041, 70A Stat. 605.)

§ 317. Command during joint exercises with Federal troops

When any part of the National Guard that is not in Federal

service participates in an encampment, maneuver, or other exercise

for instruction, together with troops in Federal service, the command of the post, air base, or other place where it is held, and of

the troops in Federal service on duty there, remains with the officers in Federal service who command that place and the Federal

troops on duty there, without regard to the rank of the officers of

the National Guard not in Federal service who are temporarily participating in the exercise.

(Aug. 10, 1956, ch. 1041, 70A Stat. 605.)

[§ 318 through 321. Repealed. P.L. 99–661, § 604(f)(2)(A), Nov.

14, 1986, 100 Stat. 3878]

§ 322. Discharge of enlisted members

(a) An enlisted member of the National Guard shall be discharged when—

(1) he becomes 64 years of age; or

(2) his Federal recognition is withdrawn.

(b) An enlisted member who is discharged from the National

Guard is entitled to a discharge certificate similar in form and classification to the corresponding certificate prescribed for members of

the Regular Army or the Regular Air Force, as the case may be.

(c) In time of peace, an enlisted member of the National Guard

may be discharged before his enlistment expires, under such regulations as may be prescribed by the Secretary of the Army or the

Secretary of the Air Force, as the case may be.

(Aug. 10, 1956, ch. 1041, 70A Stat. 606.)

§ 323. Withdrawal of Federal recognition

(a) Whenever a member of the National Guard ceases to have

the qualifications prescribed under section 301 of this title or

ceases to be a member of a federally recognized unit or organization of the National Guard, his Federal recognition shall be withdrawn.

(b) Under regulations to be prescribed by the President, the capacity and general fitness of an officer of the National Guard for

continued Federal recognition may be investigated at any time by

an efficiency board composed of commissioned officers of—

(1) the Regular Army or the Army National Guard of the

United States, or both, who out-rank him and who are detailed

by the Secretary of the Army, if he is a member of the Army

National Guard; or
25 § 325 TITLE 32—CH. 3—PERSONNEL

(2) the Regular Air Force or the Air National Guard of the

United States, or both, who outrank him and who are detailed

by the Secretary of the Air Force, if he is a member of the Air

National Guard.

If the findings of the board are unfavorable to the officer and are

approved by the President, his Federal recognition shall be withdrawn.

(c) If a member of the Army National Guard of the United

States or the Air National Guard of the United States is transferred to the Army Reserve or the Air Force Reserve, as the case

may be, under section 12105, 12213(a), or 12214(a) of title 10, his

Federal recognition is withdrawn.

(d) The Federal recognition of a reserve commissioned officer of

the Army or the Air Force who is—

(1) federally recognized as an officer of the National

Guard; and

(2) subject to involuntary transfer to the Retired Reserve,

transfer to an inactive status list, or discharge under chapter

1407, 1409, or 1411 of title 10;

shall, if not sooner withdrawn, be withdrawn on the date of such

involuntary transfer or discharge.

(Aug. 10, 1956, ch. 1041, 70A Stat. 607; amended Sept. 2, 1958, P.L. 85–861, §§ 2(11), 33(c)(2),

72 Stat. 1546, 1567; Oct. 5, 1994, P.L. 103–337, §§ 1630(2), 1676(a)(3), 108 Stat. 2964, 3019.)

§ 324. Discharge of officers; termination of appointment

(a) An officer of the National Guard shall be discharged

when—

(1) he becomes 64 years of age; or

(2) his Federal recognition is withdrawn.

The official who would be authorized to appoint him shall give him

a discharge certificate.

(b) Subject to subsection (a), the appointment of an officer of

the National Guard may be terminated or vacated as provided by

the laws of the State or Territory of whose National Guard he is

a member, or by the laws of Puerto Rico or the District of Columbia, if he is a member of its National Guard.

(Aug. 10, 1956, ch. 1041, 70A Stat. 607; amended Sept. 29, 1988, P.L. 100–456, § 1234(b)(6), 102

Stat. 2059.)

§ 325. Relief from National Guard duty when ordered to

active duty

(a) RELIEF REQUIRED.—(1) Except as provided in paragraph (2),

each member of the Army National Guard of the United States or

the Air National Guard of the United States who is ordered to active duty is relieved from duty in the National Guard of his State

or Territory, or of Puerto Rico or the District of Columbia, as the

case may be, from the effective date of his order to active duty until

he is relieved from that duty.

(2) An officer of the Army National Guard of the United States

or the Air National Guard of the United States is not relieved from

duty in the National Guard of his State or Territory, or of Puerto

Rico or the District of Columbia, under paragraph (1) while serving

on active duty in command of a National Guard unit if—
§ 326 TITLE 32—CH. 3—PERSONNEL 26

(A) the President authorizes such service in both duty

statuses; and

(B) the Governor of his State or Territory or Puerto Rico,

or the commanding general of the District of Columbia National Guard, as the case may be, consents to such service in

both duty statuses.

(b) RETURN TO STATE STATUS.—So far as practicable, members,

organizations, and units of the Army National Guard of the United

States or the Air National Guard of the United States ordered to

active duty shall be returned to their National Guard status upon

relief from that duty.

(Aug. 10, 1956, ch. 1041, 70A Stat. 607; amended Sept. 29, 1988, P.L. 100–456, § 1234(b)(6), 102

Stat. 2059; Nov. 24, 2003, P.L. 108–136, § 516, 117 Stat. 1461.)

§ 326. Courts-martial of National Guard not in Federal service: composition, jurisdiction, and procedures

In the National Guard not in Federal service, there are general, special, and summary courts-martial constituted like similar

courts of the Army and the Air Force. They have the jurisdiction

and powers, except as to punishments, and shall follow the forms

and procedures, provided for those courts. Punishments shall be as

provided by the laws of the respective States and Territories, Puerto Rico, and the District of Columbia.

(Aug. 10, 1956, ch. 1041, 70A Stat. 608; amended Dec. 2, 2002, P.L. 107–314, § 512(a), 116 Stat.

2537.)

§ 327. Courts-martial of National Guard not in Federal service: convening authority

(a) In the National Guard not in Federal service, general, special, and summary courts-martial may be convened as provided by

the laws of the respective States and Territories, Puerto Rico, and

the District of Columbia.

(b) In the National Guard not in Federal service—

(1) general courts-martial may be convened by the President;

(2) special courts-martial may be convened—

(A) by the commanding officer of a garrison, fort, post,

camp, air base, auxiliary air base, or other place where

members of the National Guard are on duty; or

(B) by the commanding officer of a division, brigade,

regiment, wing, group, detached battalion, separate squadron, or other detached command; and

(3) summary courts-martial may be convened—

(A) by the commanding officer of a garrison, fort, post,

camp, air base, auxiliary air base, or other place where

members of the National Guard are on duty; or

(B) by the commanding officer of a division, brigade,

regiment, wing, group, detached battalion, detached squadron, detached company, or other detachment.

(c) The convening authorities provided under subsection (b) are

in addition to the convening authorities provided under subsection

(a).

(Aug. 10, 1956, ch. 1041, 70A Stat. 608; amended Sept. 29, 1988, P.L. 100–456, § 1234(b)(4), 102

Stat. 2059; Dec. 2, 2002, P.L. 107–314, § 512(b), 116 Stat. 2537.)
27 § 328 to 333 TITLE 32—CH. 3—PERSONNEL

[§ 328 through 333. Repealed. P.L. 107–314, § 512(c), Dec. 2,

2002, 116 Stat. 2537]
28

CHAPTER 5—TRAINING

Sec.

501. Training generally.

502. Required drills and field exercises.

503. Participation in field exercises.

504. National Guard schools and small arms competitions.

505. Army and Air Force schools and field exercises.

506. Assignment and detail of members of Regular Army or Regular Air Force

for instruction of National Guard.

507. Instruction in firing; supply of ammunition.

508. Assistance for certain youth and charitable organizations.

509. National Guard Challenge Program of opportunities for civilian youth.

§ 501. Training generally

(a) The discipline, including training, of the Army National

Guard shall conform to that of the Army. The discipline, including

training, of the Air National Guard shall conform to that of the Air

Force.

(b) The training of the National Guard shall be conducted by

the several States and Territories, Puerto Rico and the District of

Columbia in conformity with this title.

(Aug. 10, 1956, ch. 1041, 70A Stat. 609; amended Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), 102

Stat. 2059.)

§ 502. Required drills and field exercises

(a) Under regulations to be prescribed by the Secretary of the

Army or the Secretary of the Air Force, as the case may be, each

company, battery, squadron, and detachment of the National

Guard, unless excused by the Secretary concerned, shall—

(1) assemble for drill and instruction, including indoor target practice, at least 48 times each year; and

(2) participate in training at encampments, maneuvers,

outdoor target practice, or other exercises, at least 15 days

each year.

However, no member of such unit who has served on active duty

for one year or longer shall be required to participate in such training if the first day of such training period falls during the last one

hundred and twenty days of his required membership in the National Guard.

(b) An assembly for drill and instruction may consist of a single ordered formation of a company, battery, squadron, or detachment, or, when authorized by the Secretary concerned, a series of

ordered formations of parts of those organizations. However, to

have a series of formations credited as an assembly for drill and

instruction, all parts of the unit must be included in the series

within 90 consecutive days.

(c) The total attendance at the series of formations constituting

an assembly shall be counted as the attendance at that assembly

for the required period. No member may be counted more than
29 § 503 TITLE 32—CH. 5—TRAINING

once or receive credit for more than one required period of attendance, regardless of the number of formations that he attends during the series constituting the assembly for the required period.

(d) No organization may receive credit for an assembly for drill

or indoor target practice unless—

(1) the number of members present equals or exceeds the

minimum number prescribed by the President;

(2) the period of military duty or instruction for which a

member is credited is at least one and one-half hours; and

(3) the training is of the type prescribed by the Secretary

concerned.

(e) An appropriately rated member of the National Guard who

performs an aerial flight under competent orders may receive credit for attending drill for the purposes of this section, if the flight

prevented him from attending a regularly scheduled drill.

(f) Under regulations to be prescribed by the Secretary of the

Army or Secretary of the Air Force, as the case may be, a member

of the National Guard may—

(1) without his consent, but with the pay and allowances

provided by law; or

(2) with his consent, either with or without pay and allowances;

be ordered to perform training or other duty in addition to that

prescribed under subsection (a). Duty without pay shall be considered for all purposes as if it were duty with pay.

(Aug. 10, 1956, ch. 1041, 70A Stat. 610; amended Oct. 3, 1964, P.L. 88–621, § 1(1), 78 Stat. 999;

Dec. 1, 1967, P.L. 90–168, § 4, 81 Stat. 526; Nov. 17, 1971, P.L. 92–156, § 303(b), 85 Stat. 425;

Nov. 30, 1993, P.L. 103–160, § 524(b), 107 Stat. 1657.)

§ 503. Participation in field exercises

(a)(1) Under such regulations as the President may prescribe,

the Secretary of the Army and the Secretary of the Air Force, as

the case may be, may provide for the participation of the National

Guard in encampments, maneuvers, outdoor target practice, or

other exercises for field or coast-defense instruction, independently

of or in conjunction with the Army or the Air Force, or both.

(2) Paragraph (1) includes authority to provide for participation of the National Guard in conjunction with the Army or the Air

Force, or both, in joint exercises for instruction to prepare the National Guard for response to civil emergencies and disasters.

(b) Amounts necessary for the pay, subsistence, transportation,

and other proper expenses of any part of the National Guard of a

State or Territory, Puerto Rico or the District of Columbia participating in an exercise under subsection (a) may be set aside from

funds allocated to it from appropriations for field or coast-defense

instruction.

(c) Members of the National Guard participating in an exercise

under subsection (a) may, after being mustered, be paid for the period beginning with the date of leaving home and ending with the

date of return, as determined in advance. If otherwise correct, such

a payment passes to the credit of the disbursing officer.

(Aug. 10, 1956, ch. 1041, 70A Stat. 610; amended Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), 102

Stat. 2059; P.L. 104–106, § 517, Feb. 10, 1996, 110 Stat. 309.)
§ 504 TITLE 32—CH. 5—TRAINING 30

§ 504. National Guard schools and small arms competitions

(a) Under regulations to be prescribed by the Secretary of the

Army or Secretary of the Air Force, as the case may be, members

of the National Guard may—

(1) attend schools conducted by the Army or the Air Force,

as appropriate;

(2) conduct or attend schools conducted by the National

Guard; or

(3) participate in small arms competitions.

(b) Activities authorized under subsection (a) for members of

the National Guard of a State or territory, Puerto Rico or the District of Columbia may be held inside or outside its boundaries.

(Aug. 10, 1956, ch. 1041, 70A Stat. 611; amended Oct. 3, 1964, P.L. 88–621, § 1(2), 78 Stat. 999;

Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), 102 Stat. 2059.)

§ 505. Army and Air Force schools and field exercises

Under such regulations as the President may prescribe and

upon the recommendation of the governor of any State or Territory,

Puerto Rico, or of the commanding general of the National Guard

of the District of Columbia, the Secretary of the Army may authorize a limited number of members of its Army National Guard to—

(1) attend any service school except the United States Military Academy, and to pursue a regular course of study at the

school; or

(2) be attached to an organization of the branch of the

Army corresponding to the organization of the Army National

Guard to which the member belongs, for routine practical instruction at or near an Army post during field training or other

outdoor exercise.

Similarly, the Secretary of the Air Force may authorize a limited

number of members of the Air National Guard to—

(1) attend any service school except the United States Air

Force Academy, and to pursue a regular course of study at the

school; or

(2) be attached to an organization of the Air Force corresponding to the organization of the Air National Guard to

which the member belongs, for routine practical instruction at

an air base during field training or other outdoor exercise.

(Aug. 10, 1956, ch. 1041, 70A Stat. 611; amended Sept. 29, 1988, P.L. 100–456, § 1234(b)(4), 102

Stat. 2059.)

§ 506. Assignment and detail of members of Regular Army or

Regular Air Force for instruction of National

Guard

(a) The President shall assign for instruction of the National

Guard such members of the Regular Army or the Regular Air Force

as he considers necessary.

(b) The Secretary of the Army may detail members of the Regular Army to attend an encampment, maneuver, or other exercise,

for field or coast-defense instruction of the Army National Guard.

Similarly, the Secretary of the Air Force may detail members of the

Regular Air Force to attend exercises for field or coast-defense instruction of the Air National Guard. Members so detailed shall in-
31 § 508 TITLE 32—CH. 5—TRAINING

struct the members of the National Guard at the exercise, as directed by the Secretary concerned, or as requested by the governor

or commanding officer of the National Guard there assembled.

(Aug. 10, 1956, ch. 1041, 70A Stat. 611.)

§ 507. Instruction in firing; supply of ammunition

Ammunition for instruction in firing and for target practice

may be furnished, in such amounts as may be prescribed by the

Secretary of the Army or the Secretary of the Air Force, as the case

may be, to units of the National Guard encamped at a post, camp,

or air base. The instruction shall be under the direction of a commissioned officer selected for that purpose by the proper military

commander.

(Aug. 10, 1956, ch. 1041, 70A Stat. 612.)

§ 508. Assistance for certain youth and charitable organizations

(a) AUTHORITY TO PROVIDE SERVICES.—Members and units of

the National Guard may provide the services described in subsection (b) to an eligible organization in conjunction with training

required under this chapter in any case in which—

(1) the provision of such services does not adversely affect

the quality of that training or otherwise interfere with the ability of a member or unit of the National Guard to perform the

military functions of the member or unit;

(2) the services to be provided are not commercially available, or any commercial entity that would otherwise provide

such services has approved, in writing, the provision of such

services by the National Guard;

(3) National Guard personnel will enhance their military

skills as a result of providing such services; and

(4) the provision of the services will not result in a significant increase in the cost of the training.

(b) AUTHORIZED SERVICES.—The services authorized to be provided under subsection (a) are as follows:

(1) Ground transportation.

(2) Air transportation in support of Special Olympics.

(3) Administrative support services.

(4) Technical training services.

(5) Emergency medical assistance and services.

(6) Communications services.

(c) OTHER AUTHORIZED ASSISTANCE.—Facilities and equipment

of the National Guard, including military property of the United

States issued to the National Guard and General Services Administration vehicles leased to the National Guard, and General Services

Administration vehicles leased to the Department of Defense, may

be used in connection with providing services to any eligible organization under this section.

(d) ELIGIBLE ORGANIZATIONS.—The organizations eligible to receive services under this section are as follows:

(1) The Boy Scouts of America.

(2) The Girl Scouts of America.

(3) The Boys Clubs of America.

(4) The Girls Clubs of America.
§ 509 TITLE 32—CH. 5—TRAINING 32

(5) The Young Men’s Christian Association.

(6) The Young Women’s Christian Association.

(7) The Civil Air Patrol.

(8) The United States Olympic Committee.

(9) The Special Olympics.

(10) The Campfire Boys.

(11) The Campfire Girls.

(12) The 4–H Club.

(13) The Police Athletic League.

(14) Any other youth or charitable organization designated

by the Secretary of Defense.

(Added P.L. 103–337, § 385, Oct. 5, 1994, 108 Stat. 2741.)

§ 509. National Guard Challenge Program of opportunities

for civilian youth

(a) PROGRAM AUTHORITY AND PURPOSE.—The Secretary of Defense may use the National Guard to conduct a civilian youth opportunities program, to be known as the ‘‘National Guard Challenge Program’’, which shall consist of at least a 22-week residential program and a 12-month post-residential mentoring period.

The National Guard Challenge Program shall seek to improve life

skills and employment potential of participants by providing military-based training and supervised work experience, together with

the core program components of assisting participants to receive a

high school diploma or its equivalent, leadership development, promoting fellowship and community service, developing life coping

skills and job skills, and improving physical fitness and health and

hygiene.

(b) CONDUCT OF THE PROGRAM.—(1) The Secretary of Defense

shall provide for the conduct of the National Guard Challenge Program in such States as the Secretary considers to be appropriate.

(2) The Secretary shall carry out the National Guard Challenge

Program using—

(A) funds appropriated directly to the Secretary of Defense

for the program, except that the amount of funds appropriated

directly to the Secretary and expended for the program in fiscal year 2001 or 2002 may not exceed $62,500,000; and

(B) nondefense funds made available or transferred to the

Secretary of Defense by other Federal agencies to support the

program.

(3) Federal funds made available or transferred to the Secretary of Defense under paragraph (2)(B) by other Federal agencies

to support the National Guard Challenge Program may be expended for the program in excess of the fiscal year limitation specified in paragraph (2)(A).

(4) The Secretary of Defense shall remain the executive agent

to carry out the National Guard Challenge Program regardless of

the source of funds for the program or any transfer of jurisdiction

over the program within the executive branch. As provided in subsection (a), the Secretary may use the National Guard to conduct

the program.

(c) PROGRAM AGREEMENTS.—(1) To carry out the National

Guard Challenge Program in a State, the Secretary of Defense

shall enter into an agreement with the Governor of the State or,
33 § 509 TITLE 32—CH. 5—TRAINING

in the case of the District of Columbia, with the commanding general of the District of Columbia National Guard, under which the

Governor or the commanding general will establish, organize, and

administer the National Guard Challenge Program in the State.

(2) The agreement may provide for the Secretary to provide

funds to the State for civilian personnel costs attributable to the

use of civilian employees of the National Guard in the conduct of

the National Guard Challenge Program.

(d) MATCHING FUNDS REQUIRED.—The amount of assistance

provided under this section to a State program of the National

Guard Challenge Program may not exceed—

(1) for fiscal year 1998, 75 percent of the costs of operating

the State program during that year;

(2) for fiscal year 1999, 70 percent of the costs of operating

the State program during that year;

(3) for fiscal year 2000, 65 percent of the costs of operating

the State program during that year; and

(4) for fiscal year 2001 and each subsequent fiscal year, 60

percent of the costs of operating the State program during that

year.

(e) PERSONS ELIGIBLE TO PARTICIPATE IN PROGRAM.—A school

dropout from secondary school shall be eligible to participate in the

National Guard Challenge Program. The Secretary of Defense shall

prescribe the standards and procedures for selecting participants

from among school dropouts.

(f) AUTHORIZED BENEFITS FOR PARTICIPANTS.—(1) To the extent

provided in an agreement entered into in accordance with subsection (c) and subject to the approval of the Secretary of Defense,

a person selected for training in the National Guard Challenge Program may receive the following benefits in connection with that

training:

(A) Allowances for travel expenses, personal expenses, and

other expenses.

(B) Quarters.

(C) Subsistence.

(D) Transportation.

(E) Equipment.

(F) Clothing.

(G) Recreational services and supplies.

(H) Other services.

(I) Subject to paragraph (2), a temporary stipend upon the

successful completion of the training, as characterized in accordance with procedures provided in the agreement.

(2) In the case of a person selected for training in the National

Guard Challenge Program who afterwards becomes a member of

the Civilian Community Corps under subtitle E of title I of the National and Community Service Act of 1990 (42 U.S.C. 12611 et

seq.), the person may not receive a temporary stipend under paragraph (1)(I) while the person is a member of that Corps. The person may receive the temporary stipend after completing service in

the Corps unless the person elects to receive benefits provided

under subsection (f) or (g) of section 158 of such Act (42 U.S.C.

12618).
§ 509 TITLE 32—CH. 5—TRAINING 34

(g) PROGRAM PERSONNEL.—(1) Personnel of the National Guard

of a State in which the National Guard Challenge Program is conducted may serve on full-time National Guard duty for the purpose

of providing command, administrative, training, or supporting services for the program. For the performance of those services, any

such personnel may be ordered to duty under section 502(f) of this

title for not longer than the period of the program.

(2) A Governor participating in the National Guard Challenge

Program and the commanding general of the District of Columbia

National Guard (if the District of Columbia National Guard is participating in the program) may procure by contract the temporary

full time services of such civilian personnel as may be necessary to

augment National Guard personnel in carrying out the National

Guard Challenge Program in that State.

(3) Civilian employees of the National Guard performing services for the National Guard Challenge Program and contractor personnel performing such services may be required, when appropriate

to achieve the purposes of the program, to be members of the National Guard and to wear the military uniform.

(h) EQUIPMENT AND FACILITIES.—(1) Equipment and facilities

of the National Guard, including military property of the United

States issued to the National Guard, may be used in carrying out

the National Guard Challenge Program.

(2) Activities under the National Guard Challenge Program

shall be considered noncombat activities of the National Guard for

purposes of section 710 of this title.

(i) STATUS OF PARTICIPANTS.—(1) A person receiving training

under the National Guard Challenge Program shall be considered

an employee of the United States for the purposes of the following

provisions of law:

(A) Subchapter I of chapter 81 of title 5 (relating to compensation of Federal employees for work injuries).

(B) Section 1346(b) and chapter 171 of title 28 and any

other provision of law relating to the liability of the United

States for tortious conduct of employees of the United States.

(2) In the application of the provisions of law referred to in

paragraph (1)(A) to a person referred to in paragraph (1)—

(A) the person shall not be considered to be in the performance of duty while the person is not at the assigned location

of training or other activity or duty authorized in accordance

with a program agreement referred to in subsection (c), except

when the person is traveling to or from that location or is on

pass from that training or other activity or duty;

(B) the person’s monthly rate of pay shall be deemed to be

the minimum rate of pay provided for grade GS–2 of the General Schedule under section 5332 of title 5; and

(C) the entitlement of a person to receive compensation for

a disability shall begin on the day following the date on which

the person’s participation in the National Guard Challenge

Program is terminated.

(3) A person referred to in paragraph (1) may not be considered

an employee of the United States for any purpose other than a purpose set forth in that paragraph.
35 § 509 TITLE 32—CH. 5—TRAINING

(j) SUPPLEMENTAL RESOURCES.—To carry out the National

Guard Challenge Program in a State, the Governor of the State or,

in the case of the District of Columbia, the commanding general of

the District of Columbia National Guard may supplement funds

made available under the program out of other resources (including

gifts) available to the Governor or the commanding general. The

Governor or the commanding general may accept, use, and dispose

of gifts or donations of money, other property, or services for the

National Guard Challenge Program.

(k) REPORT.—Within 90 days after the end of each fiscal year,

the Secretary of Defense shall submit to Congress a report on the

design, conduct, and effectiveness of the National Guard Challenge

Program during the preceding fiscal year. In preparing the report,

the Secretary shall coordinate with the Governor of each State in

which the National Guard Challenge Program is carried out and,

if the program is carried out in the District of Columbia, with the

commanding general of the District of Columbia National Guard.

(l) DEFINITIONS.—In this section:

(1) The term ‘‘State’’ includes the Commonwealth of Puerto

Rico, the territories, and the District of Columbia.

(2) The term ‘‘school dropout’’ means an individual who is

no longer attending any school and who has not received a secondary school diploma or a certificate from a program of

equivalency for such a diploma.

(m) REGULATIONS.—The Secretary of Defense shall prescribe

regulations to carry out the National Guard Challenge Program.

The regulations shall address at a minimum the following:

(1) The terms to be included in the program agreements

required by subsection (c).

(2) The qualifications for persons to participate in the program, as required by subsection (e).

(3) The benefits authorized for program participants, as required by subsection (f ).

(4) The status of National Guard personnel assigned to

duty in support of the program under subsection (g).

(5) The conditions for the use of National Guard facilities

and equipment to carry out the program, as required by subsection (h).

(6) The status of program participants, as described in subsection (i).

(7) The procedures to be used by the Secretary when communicating with States about the program.

(Added P.L. 105–85, § 1076(a), Nov. 18, 1997, 111 Stat. 1911; amended P.L. 106–65, § 579(a),

(b), Oct. 5, 1999, 113 Stat. 631; P.L. 106–246, Div. B (§ 120), July 13, 2000, 114 Stat. 533; P.L.

106–398, § 1 (§ 577(a)–(c)), Oct. 30, 2000, 114 Stat. 1654A–140; P.L. 107–107, § 596(a), Dec. 28,

2001, 115 Stat. 1127; P.L. 107–314, § 1062(g)(1), Dec. 2, 2002, 116 Stat. 2651.)
36

CHAPTER 7—SERVICE, SUPPLY, AND PROCUREMENT

Sec.

701. Uniforms, arms, and equipment to be same as Army or Air Force.

702. Issue of supplies.

703. Purchases of supplies by States from Army or Air Force.

704. Accountability: relief from upon order to active duty.

705. Purchase of uniforms and equipment by officers of National Guard from

Army or Air Force.

706. Return of arms and equipment upon relief from Federal service.

707. Use of public buildings for offices by instructors.

708. Property and fiscal officers.

709. Technicians: employment, use, status.

710. Accountability for property issued to the National Guard.

711. Disposition of obsolete or condemned property.

712. Disposition of proceeds of condemned stores issued to National Guard.

713. Official mail: free transmission.

714. Final settlement of accounts: deceased members.

715. Property loss; personal injury or death: activities under certain sections of

this title.

716. Claims for overpayment of pay and allowances, and travel and transportation allowances.

§ 701. Uniforms, arms, and equipment to be same as Army or

Air Force

So far as practicable, the same types of uniforms, arms, and

equipment as are issued to the Army shall be issued to the Army

National Guard, and the same types of uniforms, arms, and equipment as are issued to the Air Force shall be issued to the Air National Guard.

(Aug. 10, 1956, ch. 1041, 70A Stat. 612.)

§ 702. Issue of supplies

(a) Under such regulations as the President may prescribe, the

Secretary of the Army and the Secretary of the Air Force may buy

or manufacture and, upon requisition of the governor of any State

or Territory, Puerto Rico or the commanding general of the National Guard of the District of Columbia, issue to its Army National

Guard and Air National Guard, respectively, the supplies necessary

to uniform, arm, and equip that Army National Guard or Air National Guard for field duty.

(b) Whenever the Secretary concerned is satisfied that the

Army National Guard or the Air National Guard, as the case may

be, of any State or Territory, Puerto Rico or the District of Columbia is properly organized, armed, and equipped for field duty, funds

allotted to that jurisdiction for its Army National Guard or Air National Guard may be used to buy any article issued by the Army

or the Air Force, as the case may be.

(c) Under such regulations as the President may prescribe, the

issue of new types of equipment, small arms, or field guns to the

National Guard of any State or Territory, Puerto Rico or the Dis-
37 § 705 TITLE 32—CH. 7—SERVICE, SUPPLY, AND PROCUREMENT

trict of Columbia shall be without charge against appropriations for

the National Guard.

(d) No property may be issued to the National Guard of a State

or Territory, Puerto Rico or the District of Columbia, unless that

jurisdiction makes provision, satisfactory to the Secretary concerned, for its protection and care.

(Aug. 10, 1956, ch. 1041, 70A Stat. 612; amended Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), (4),

102 Stat. 2059.)

§ 703. Purchases of supplies by States from Army or Air

Force

(a) Subject to the approval of the Secretary of the Army, any

State or Territory, Puerto Rico or the District of Columbia may buy

from the Department of the Army, for its National Guard or the

officers thereof, supplies and military publications furnished to the

Army, in addition to other supplies issued to its Army National

Guard. On the same basis, it may buy similar property from the

Department of the Air Force. A purchase under this subsection

shall be for cash, at cost plus transportation.

(b) In time of actual or threatened war, the United States may

requisition for military use any property bought under subsection

(a). Credit for the return in kind of property so requisitioned shall

be given to the State or Territory, Puerto Rico or the District of Columbia from which it is received.

(c) Proceeds of sales by the Department of the Army and the

Department of the Air Force under this section shall be credited to

the appropriations from which the property was purchased, shall

not be covered into the Treasury, and may be used to replace property sold under this section.

(Aug. 10, 1956, ch. 1041, 70A Stat. 613; amended Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), 102

Stat. 2059.)

§ 704. Accountability: relief from upon order to active duty

Upon ordering any part of the Army National Guard of the

United States or the Air National Guard of the United States to

active duty, the President may, upon such terms as he may prescribe, relieve the State or Territory, Puerto Rico or the District of

Columbia, whichever is concerned, of accountability for property of

the United States previously issued to it for the use of that part.

(Aug. 10, 1956, ch. 1041, 70A Stat. 613; amended Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), 102

Stat. 2059.)

§ 705. Purchase of uniforms and equipment by officers of

National Guard from Army or Air Force

Officers of the Army National Guard not in Federal service

may buy articles of individual clothing and equipment from the Department of the Army, under such regulations as the Secretary of

the Army may prescribe. On the same basis, officers of the Air National Guard not in Federal service may buy those items from the

Department of the Air Force. Purchases under this section shall be

for cash, at average current costs, including overhead, as determined by the Secretary concerned.

(Aug. 10, 1956, ch. 1041, 70A Stat. 613.)
§ 706 TITLE 32—CH. 7—SERVICE, SUPPLY, AND PROCUREMENT 38

§ 706. Return of arms and equipment upon relief from

Federal service

So far as practicable, whenever units, organizations, or members of the National Guard are returned to their National Guard

status under section 325(b) of this title, arms and equipment that

the Secretary concerned determines are sufficient to accomplish

their peacetime mission shall be returned with them.

(Aug. 10, 1956, ch. 1041, 70A Stat. 613.)

§ 707. Use of public buildings for offices by instructors

Whenever practicable, instructors of the National Guard shall

use State armories or other public buildings for offices.

(Aug. 10, 1956, ch. 1041, 70A Stat. 614.)

§ 708. Property and fiscal officers

(a) The Governor of each State or Territory and Puerto Rico,

and the commanding general of the National Guard of the District

of Columbia, shall appoint, designate or detail, subject to the approval of the Secretary of the Army and the Secretary of the Air

Force, a qualified commissioned officer of the National Guard of

that jurisdiction who is also a commissioned officer of the Army

National Guard of the United States or the Air National Guard of

the United States, as the case may be, to be the property and fiscal

officer of that jurisdiction. If the officer is not on active duty, the

President may order him to active duty, with his consent, to serve

as a property and fiscal officer.

(b) Each property and fiscal officer shall—

(1) receipt and account for all funds and property of the

United States in the possession of the National Guard for

which he is property and fiscal officer; and

(2) make returns and reports concerning those funds and

that property, as required by the Secretary concerned.

(c) When he ceases to hold that assignment, a property and fiscal officer resumes his status as an officer of the National Guard.

(d) The Secretaries shall prescribe a maximum grade, commensurate with the functions and responsibilities of the office, but not

above colonel, for the property and fiscal officer of the United

States for the National Guard of each State or Territory, Puerto

Rico and the District of Columbia.

(e) The Secretary of the Army and the Secretary of the Air

Force shall prescribe joint regulations necessary to carry out subsections (a)–(d).

(f) A property and fiscal officer may intrust money to an officer

of the National Guard to make disbursements as his agent. Both

the officer to whom money is intrusted, and the property and disbursing officer intrusting the money to him, are pecuniarily responsible for that money to the United States. The agent officer is subject, for misconduct as an agent, to the liabilities and penalties prescribed by law in like cases for the property and fiscal officer for

whom he is acting.

(Aug. 10, 1956, ch. 1041, 70A Stat. 614; amended June 6, 1972, P.L. 92–310, § 207, 86 Stat. 203;

July 30, 1977, P.L. 95–79, § 804(b), 91 Stat. 333; Dec. 12, 1980, P.L. 96–513, § 515(4), 94 Stat.

2937; Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), 102 Stat. 2059; Nov. 29, 1989, P.L. 101-189,

§ 653(g), 103 Stat. 1463.)
39 § 709 TITLE 32—CH. 7—SERVICE, SUPPLY, AND PROCUREMENT

§ 709. Technicians: employment, use, status

(a) Under regulations prescribed by the Secretary of the Army

or the Secretary of the Air Force, as the case may be, and subject

to subsections (b) and (c), persons may be employed as technicians

in—

(1) the administration and training of the National Guard;

and

(2) the maintenance and repair of supplies issued to the

National Guard or the armed forces.

(b) Except as authorized in subsection (c), a person employed

under subsection (a) must meet each of the following requirements:

(1) Be a military technician (dual status) as defined in section 10216(a) of title 10.

(2) Be a member of the National Guard.

(3) Hold the military grade specified by the Secretary concerned for that position.

(4) While performing duties as a military technician (dual

status), wear the uniform appropriate for the member’s grade

and component of the armed forces.

(c)(1) A person may be employed under subsection (a) as a nondual status technician (as defined by section 10217 of title 10) if

the technician position occupied by the person has been designated

by the Secretary concerned to be filled only by a non-dual status

technician.

(2) The total number of non-dual status technicians in the National Guard is specified in section 10217(c)(2) of title 10.

(d) The Secretary concerned shall designate the adjutants general referred to in section 314 of this title to employ and administer

the technicians authorized by this section.

(e) A technician employed under subsection (a) is an employee

of the Department of the Army or the Department of the Air Force,

as the case may be, and an employee of the United States. However, a position authorized by this section is outside the competitive service if the technician employed in that position is required

under subsection (b) to be a member of the National Guard.

(f) Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned—

(1) a person employed under subsection (a) who is a military technician (dual status) and otherwise subject to the requirements of subsection (b) who—

(A) is separated from the National Guard or ceases to

hold the military grade specified by the Secretary concerned for that position shall be promptly separated from

military technician (dual status) employment by the adjutant general of the jurisdiction concerned; and

(B) fails to meet the military security standards established by the Secretary concerned for a member of a reserve component under his jurisdiction may be separated

from employment as a military technician (dual status)

and concurrently discharged from the National Guard by

the adjutant general of the jurisdiction concerned;
§ 710 TITLE 32—CH. 7—SERVICE, SUPPLY, AND PROCUREMENT 40

(2) a technician may, at any time, be separated from his

technician employment for cause by the adjutant general of the

jurisdiction concerned;

(3) a reduction in force, removal, or an adverse action involving discharge from technician employment, suspension,

furlough without pay, or reduction in rank or compensation

shall be accomplished by the adjutant general of the jurisdiction concerned;

(4) a right of appeal which may exist with respect to paragraph (1), (2), or (3) shall not extend beyond the adjutant general of the jurisdiction concerned; and

(5) a technician shall be notified in writing of the termination of his employment as a technician and, unless the technician is serving under a temporary appointment, is serving in

a trial or probationary period, or has voluntarily ceased to be

a member of the National Guard when such membership is a

condition of employment, such notification shall be given at

least 30 days before the termination date of such employment.

(g) Sections 2108, 3502, 7511, and 7512 of title 5 do not apply

to a person employed under this section.

(h) Notwithstanding sections 5544(a) and 6101(a) of title 5 or

any other provision of law, the Secretary concerned may prescribe

the hours of duty for technicians. Notwithstanding sections 5542

and 5543 of title 5 or any other provision of law, such technicians

shall be granted an amount of compensatory time off from their

scheduled tour of duty equal to the amount of any time spent by

them in irregular or overtime work, and shall not be entitled to

compensation for such work.

(i) The Secretary concerned may not prescribe for purposes of

eligibility for Federal recognition under section 301 of this title a

qualification applicable to technicians employed under subsection

(a) that is not applicable pursuant to that section to the other

members of the National Guard in the same grade, branch, position, and type of unit or organization involved.

(Aug. 10, 1956, ch. 1041, 70A Stat. 614; amended Sept. 13, 1961, P.L. 87–224, § 2, 75 Stat. 496;

Aug. 13, 1968, P.L. 90–486, § 2(1), 82 Stat. 755; Aug. 13, 1971, P.L. 92–119, § 2, 85 Stat. 340;

Dec. 12, 1980, P.L. 96–513, § 515(5)-(7), 94 Stat. 2937; Nov. 30, 1993, P.L. 103–160, §§ 523(a),

524(c), (d), 107 Stat. 1656, 1657; Oct. 5, 1994, P.L. 103–337, §§ 1070(b)(2), 1070(d)(5), 108 Stat.

2856, 2858; P.L. 104–106, § 1038(a), Feb. 10, 1996, 110 Stat. 432; Nov. 18, 1997, P.L. 105–85,

§ 522(c), 111 Stat. 107; P.L. 106–65, § 524, Oct. 5, 1999, 113 Stat. 599.)

§ 710. Accountability for property issued to the National

Guard

(a) All military property issued by the United States to the National Guard remains the property of the United States.

(b) The Secretary of the Army shall prescribe regulations for

accounting for property issued by the United States to the Army

National Guard and for the fixing of responsibility for that property. The Secretary of the Air Force shall prescribe regulations for

accounting for property issued by the United States to the Air National Guard and for the fixing of responsibility for that property.

So far as practicable, regulations prescribed under this section

shall be uniform among the components of each service.

(c) Under regulations prescribed by the Secretary concerned

under subsection (b), liability for the value of property issued by
41 § 710 TITLE 32—CH. 7—SERVICE, SUPPLY, AND PROCUREMENT

the United States to the National Guard that is lost, damaged, or

destroyed may be charged (1) to a member of the Army National

Guard or the Air National Guard when in similar circumstances a

member of the Army or Air Force serving on active duty would be

so charged, or (2) to a State or Territory, Puerto Rico or the District of Columbia when the property is lost, damaged, or destroyed

incident to duty directed pursuant to the laws of, and in support

of the authorities of, such jurisdiction. Liability charged to a member of the Army National Guard or the Air National Guard shall

be paid out of pay due to the member for duties performed as a

member of the National Guard, unless the Secretary concerned

shall for good cause remit or cancel that liability. Liability charged

to a State or Territory, Puerto Rico or the District of Columbia

shall be paid from its funds or from any other non-Federal funds.

(d) If property surveyed under this section is found to be unserviceable or unsuitable, the Secretary concerned or his designated representative shall direct its disposition by sale or otherwise. The proceeds of the following under this subsection shall be

deposited in the Treasury under section 4(b)(22) of the Permanent

Appropriation Repeal Act, 1934.

(1) A sale.

(2) A stoppage against a member of the National Guard.

(3) A collection from a person, or from a State or Territory,

Puerto Rico or the District of Columbia, to reimburse the

United States for the loss or destruction of, or damage to, the

property.

(e) If a State or Territory, Puerto Rico or the District of Columbia, whichever is concerned, neglects or refuses to pay for the loss

or destruction of, or damage to, property charged against it under

subsection (c), the Secretary concerned may bar it from receiving

any part of appropriations for the Army National Guard or the Air

National Guard, as the case may be, until the payment is made.

(f)(1) Instead of the procedure prescribed by subsections (b), (c),

and (d), property issued to the National Guard that becomes unserviceable through fair wear and tear in service may, under regulations to be prescribed by the Secretary concerned, be sold or otherwise disposed of after an inspection, and a finding of

unserviceability because of that wear and tear, by a commissioned

officer designated by the Secretary. The State or Territory, Puerto

Rico or the District of Columbia, whichever is concerned, is relieved

of accountability for that property.

(2) In designating an officer to conduct inspections and make

findings for purposes of paragraph (1), the Secretary concerned

shall designate—

(A) in the case of the Army National Guard, a commissioned officer of the Regular Army or a commissioned officer of

the Army National Guard who is also a commissioned officer

of the Army National Guard of the United States; and

(B) in the case of the Air National Guard, a commissioned

officer of the Regular Air Force or a commissioned officer of the

Air National Guard who is also a commissioned officer of the

Air National Guard of the United States.

(Aug. 10, 1956, ch. 1041, 70A Stat. 615; amended Sept. 2, 1958, P.L. 85–861, § 33(c)(3), 72 Stat.

1567; Aug. 8, 1980, P.L. 96–328, § 1(a), (b)(1), 94 Stat. 1027; Dec. 12, 1980, P.L. 96–513, § 515(8),
§ 711 TITLE 32—CH. 7—SERVICE, SUPPLY, AND PROCUREMENT 42

94 Stat. 2937; Sept. 13, 1982, P.L. 97–258, § 3(h)(2), 96 Stat. 1065; Sept. 29, 1988, P.L. 100–

456, § 1234(b)(1), 102 Stat. 2059; Nov. 30, 1993, P.L. 103–160, § 524(e), 107 Stat. 1657.)

§ 711. Disposition of obsolete or condemned property

Each State and Territory, Puerto Rico and the District of Columbia shall, upon receiving new property issued to its National

Guard to replace obsolete or condemned issues of property, return

the replaced property to the Department of the Army or the Department of the Air Force, as the case may be, or otherwise dispose

of it, as the Secretary concerned directs. No money credit may be

allowed for property disposed of under this section.

(Aug. 10, 1956, ch. 1041, 70A Stat. 616; amended Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), 102

Stat. 2059.)

§ 712. Disposition of proceeds of condemned stores issued to

National Guard

The following shall be covered into the Treasury:

(1) The proceeds from sales of condemned stores issued to

the National Guard of a State or Territory, Puerto Rico or the

District of Columbia, and not charged against its allotment.

(2) The net proceeds from collections made from any person to reimburse the United States for the loss or destruction

of, or damage to, property described in clause (1).

(3) Stoppage against members of the National Guard for

the loss or destruction of, or damage to, property described in

clause (1).

(Aug. 10, 1956, ch. 1041, 70A Stat. 616; amended Sept. 29, 1988, P.L. 100–456, § 1234(b)(1), 102

Stat. 2059.)

§ 713. Official mail: free transmission

Units and headquarters of the National Guard, whether or not

in Federal service, have the same privilege of free mailing of official matter as the Department of Defense.

(Aug. 10, 1956, ch. 1041, 70A Stat. 617.)

§ 714. Final settlement of accounts: deceased members

(a) In the settlement of the accounts of a member of the National Guard who dies after December 31, 1955, an amount due

from the armed force of which he was a member shall be paid to

the person highest on the following list living on the date of death:

(1) Beneficiary designated by him in writing to receive

such an amount, if the designation is received, before the deceased member’s death, at the place named in regulations to

be prescribed by the Secretary concerned.

(2) Surviving spouse.

(3) Children and their descendants, by representation.

(4) Father and mother in equal parts or, if either is dead,

the survivor.

(5) Legal representative.

(6) Person entitled under the law of the domicile of the deceased member.

(b) Designations and changes of designation of beneficiaries

under subsection (a)(1) are subject to regulations to be prescribed

by the Secretary concerned. So far as practicable, these regulations
43 § 715 TITLE 32—CH. 7—SERVICE, SUPPLY, AND PROCUREMENT

shall be uniform with those prescribed for the armed forces under

section 2771(b) of title 10.

(c) Under such regulations as the Secretary concerned may

prescribe, payments under subsection (a) shall be made by the Department of the Army or the Department of the Air Force, as the

case may be.

(Added P.L. 85–861, § 2(12), Sept. 2, 1958, 72 Stat. 1546; amended P.L. 87–46, § 1, June 16,

1961, 75 Stat. 92; P.L. 104–316, § 202(q), Oct. 19, 1996, 110 Stat. 3844.)

§ 715. Property loss; personal injury or death: activities

under certain sections of this title

(a) Under such regulations as the Secretary of the Army or

Secretary of the Air Force may prescribe, he or, subject to appeal

to him, the Judge Advocate General of the armed force under his

jurisdiction, if designated by him, may settle and pay in an amount

not more than $100,000 a claim against the United States for—

(1) damage to, or loss of, real property, including damage

or loss incident to use and occupancy;

(2) damage to, or loss of, personal property, including property bailed to the United States or the National Guard and including registered or insured mail damaged, lost, or destroyed

by a criminal act while in the possession of the National

Guard; or

(3) personal injury or death; either caused by a member of

the Army National Guard or the Air National Guard, as the

case may be, while engaged in training or duty under section

316, 502, 503, 504, or 505 of this title or any other provision

of law for which he is entitled to pay under section 206 of title

37, or for which he has waived that pay, and acting within the

scope of his employment; or otherwise incident to noncombat

activities of the Army National Guard or the Air National

Guard, as the case may be, under one of those sections.

(b) A claim may be allowed under subsection (a) only if—

(1) it is presented in writing within two years after it accrues, except that if the claim accrues in time of war or armed

conflict or if such a war or armed conflict intervenes within

two years after it accrues, and if good cause is shown, the

claim may be presented not later than two years after the war

or armed conflict is terminated;

(2) it is not covered by section 2734 of title 10 or section

2672 of title 28;

(3) it is not for personal injury or death of such a member

or a person employed under section 709 of this title, whose injury or death is incident to his service;

(4) the damage to, or loss of, property, or the personal injury or death, was not caused wholly or partly by a negligent

or wrongful act of the claimant, his agent, or his employee, or,

if so caused, allowed only to the extent that the law of the

place where the act or omission complained of occurred would

permit recovery from a private individual under like circumstances; and

(5) it is substantiated as prescribed in regulations of the

Secretary concerned.
§ 716 TITLE 32—CH. 7—SERVICE, SUPPLY, AND PROCUREMENT 44

For the purposes of clause (1), the dates of the beginning and end

of an armed conflict are the dates established by concurrent resolution of Congress or by a determination of the President.

(c) Payment may not be made under this section for reimbursement for medical, hospital, or burial services furnished at the expense of the United States or of any State or the District of Columbia or Puerto Rico.

(d) If the Secretary concerned considers that a claim in excess

of $100,000 is meritorious, and the claim otherwise is payable

under this section, the Secretary may pay the claimant $100,000

and report any meritorious amount in excess of $100,000 to the

Secretary of the Treasury for payment under section 1304 of title

31.

(e) Except as provided in subsection (d), no claim may be paid

under this section unless the amount tendered is accepted by the

claimant in full satisfaction.

(f) Under regulations prescribed by the Secretary concerned, an

officer or employee under the jurisdiction of the Secretary may settle a claim that otherwise would be payable under this section in

an amount not to exceed $25,000. A decision of the officer or employee who makes a final settlement decision under this section

may be appealed by the claimant to the Secretary concerned or an

officer or employee designated by the Secretary for that purpose.

(g) Notwithstanding any other provision of law, the settlement

of a claim under this section is final and conclusive.

(h) In this section, ‘‘settle’’ means consider, ascertain, adjust,

determine, and dispose of a claim, whether by full or partial allowance or disallowance.

(Added P.L. 86–740, § 1(1), Sept. 13, 1960, 74 Stat. 878; amended P.L. 87–649, § 8(b), Sept. 7,

1962, 76 Stat. 495; P.L. 90–486, § 2(3), Aug. 13, 1968, 82 Stat. 756; P.L. 90–525, § 6, Sept. 26,

1968, 82 Stat. 878; P.L. 91–312, § 3, July 8, 1970, 84 Stat. 412; P.L. 92–445, Sept. 29, 1972,

86 Stat. 745; P.L. 93–336, § 3, July 8, 1974, 88 Stat. 292; P.L. 98–564, § 4, Oct. 30, 1984, 98

Stat. 2919; P.L. 104–316, § 202(r), Oct. 19, 1996, 110 Stat. 3844.)

§ 716. Claims for overpayment of pay and allowances, and

travel and transportation allowances

(a) A claim of the United States against a person arising out

of an erroneous payment of any pay or allowances made before, on,

or after October 2, 1972, or arising out of an erroneous payment

of travel and transportation allowances, to or on behalf of a member or former member of the National Guard, the collection of

which would be against equity and good conscience and not in the

best interest of the United States, may be waived in whole or in

part by—

(1) the Director of the Office of Management and Budget;

or

(2) the Secretary concerned, as defined in section 101(5) of

title 37, when—

(A) the claim is in an amount aggregating not more

than $1,500; and

(B) the waiver is made in accordance with standards

which the Director of the Office of Management and Budget shall prescribe.
45 § 716 TITLE 32—CH. 7—SERVICE, SUPPLY, AND PROCUREMENT

(b) The Director of the Office of Management and Budget or

the Secretary concerned, as the case may be, may not exercise his

authority under this section to waive any claim—

(1) if, in his opinion, there exists, in connection with the

claim, an indication of fraud, misrepresentation, fault, or lack

of good faith on the part of the member or any other person

having an interest in obtaining a waiver of the claim; or

(2) if application for waiver is received in his office after

the expiration of three years immediately following the date on

which the erroneous payment was discovered.

(c) A person who has repaid to the United States all or part

of the amount of a claim, with respect to which a waiver is granted

under this section, is entitled, to the extent of the waiver, to refund, by the department concerned at the time of the erroneous

payment, of the amount repaid to the United States, if he applies

to that department for that refund within two years following the

effective date of the waiver. The Secretary concerned shall pay

from current applicable appropriations that refund in accordance

with this section.

(d) In the audit and settlement of accounts of any accountable

officer or official, full credit shall be given for any amounts with respect to which collection by the United States is waived under this

section.

(e) An erroneous payment, the collection of which is waived

under this section, is considered a valid payment for all purposes.

(f) This section does not affect any authority under any other

law to litigate, settle, compromise, or waive any claim of the United

States.

(Added P.L. 92–453, § 2(1), Oct. 2, 1972, 86 Stat. 759; amended P.L. 96–513, § 515(9), Dec. 12,

1980, 94 Stat. 2937; P.L. 99–224, § 3(a), Dec. 28, 1985, 99 Stat. 1742; P.L. 102-190, § 657(c), Dec.

5, 1991, 105 Stat. 1393; P.L. 104–316; P.L. 104–316, § 116, Oct. 19, 1996, 110 Stat. 3835.)

47

B. TITLE 37—PAY AND ALLOWANCES OF THE

UNIFORMED SERVICES

[As amended through the end of the first session of the

108th Congress, December 31, 2003]

49

1This table of chapters and the following table of sections are not part of title 37, as codified

in the United States Code, but are included for the convenience of the reader.

TABLE OF CHAPTERS OF TITLE 37 1

TITLE 37, UNITED STATES CODE

PAY AND ALLOWANCES OF THE UNIFORMED

SERVICES

Chap. Sec.

1. Definitions ....................................................................... 101

3. Basic Pay ......................................................................... 201

5. Special and Incentive Pays ............................................ 301

7. Allowances ....................................................................... 401

9. Leave ................................................................................ 501

10. Payments to Missing Persons ........................................ 551

11. Payments to Mentally Incompetent Persons ................ 601

13. Allotments and Assignments of Pay .............................. 701

15. Prohibitions and Penalties ............................................. 801

17. Miscellaneous Rights and Benefits ................................ 901

19. Administration ................................................................ 1001

TABLE OF SECTIONS OF TITLE 37

CHAPTER 1—DEFINITIONS

Sec.

101. Definitions.

CHAPTER 3—BASIC PAY

Sec.

201. Pay grades: assignment to; general rules.

202. Pay grade: retired Coast Guard rear admirals (lower half).

203. Rates.

204. Entitlement.

205. Computation: service creditable.

206. Reserves; members of National Guard: inactive-duty training.

207. Band leaders.

[208. Repealed.]

209. Members of precommissioning programs.

210. Pay of senior enlisted members during terminal leave and while hospitalized.

211. Participation in Thrift Savings Plan.
TABLE OF SECTIONS OF TITLE 37 50

CHAPTER 5—SPECIAL AND INCENTIVE PAYS

Sec.

301. Incentive pay: hazardous duty.

301a. Incentive pay: aviation career.

301b. Special pay: aviation career officers extending period of active duty.

301c. Incentive pay: submarine duty.

301d. Multiyear retention bonus: medical officers of the armed forces.

301e. Multiyear retention bonus: dental officers of the armed forces.

302. Special pay: medical officers of the armed forces.

302a. Special pay: optometrists.

302b. Special pay: dental officers of the armed forces.

302c. Special pay: psychologists and nonphysician health care providers.

302d. Special pay: accession bonus for registered nurses.

302e. Special pay: nurse anesthetists.

302f. Special pay: reserve, recalled, or retained health care officers.

302g. Special pay: Selected Reserve health care professionals in critically short

wartime specialties.

302h. Special pay: accession bonus for dental officers.

302i. Special pay: pharmacy officers.

302j. Special pay: accession bonus for pharmacy officers.

303. Special pay: veterinarians.

303a. Special pay: health professionals; general provisions.

303b. Waiver of board certification requirements.

304. Special pay: diving duty.

305. Special pay: hardship duty pay.

305a. Special pay: career sea pay.

305b. Special pay: service as member of Weapons of Mass Destruction Civil Support Team.

306. Special pay: officers holding positions of unusual responsibility and of

critical nature.

306a. Special pay: members assigned to international military headquarters.

307. Special pay: special duty assignment pay for enlisted members.

307a. Special pay: assignment incentive pay.

308. Special pay: reenlistment bonus.

[308a. Repealed.]

308b. Special pay: reenlistment bonus for members of the Selected Reserve.

308c. Special pay: bonus for enlistment in the Selected Reserve.

308d. Special pay: enlisted members of the Selected Reserve assigned to certain

high priority units.

308e. Special pay: bonus for reserve affiliation agreement.

[308f. Repealed.]

308g. Special pay: bonus for enlistment in elements of the Ready Reserve other

than the Selected Reserve.

308h. Special pay: bonus for reenlistment, or voluntary extension of enlistment in

elements of the Ready Reserve other than the Selected Reserve.

308i. Special pay: prior service enlistment bonus.

309. Special pay: enlistment bonus.

310. Special pay: duty subject to hostile fire or imminent danger.

[311. Repealed.]

312. Special pay: nuclear-qualified officers extending period of active duty.

312a. Special pay: nuclear-trained and qualified enlistment members.

312b. Special pay: nuclear career accession bonus.

312c. Special pay: nuclear career annual incentive bonus.

[313. Repealed.]

314. Special pay or bonus: qualified members extending duty at designated locations overseas.

315. Special pay: engineering and scientific career continuation pay.

316. Special pay: foreign language proficiency pay.

316a. Waiver of certification requirement.

317. Special pay: officers in critical acquisition positions extending period of

active duty.

318. Special pay: special warfare officers extending period of active duty.

319. Special pay: surface warfare officer continuation pay.

320. Incentive pay: career enlisted flyers.

321. Special pay: judge advocate continuation pay.

322. Special pay: 15-year career status bonus for members entering service on

or after August 1, 1986.
51 TABLE OF SECTIONS OF TITLE 37

323. Special pay: retention incentives for members qualified in a critical military

skill.

324. Special pay: accession bonus for new officers in critical skills.

325. Incentive bonus: savings plan for education expenses and other contingencies.

326. Incentive bonus: conversion to military occupational specialty to ease personnel shortage.

CHAPTER 7—ALLOWANCES

Sec.

401. Definitions.

402. Basic allowance for subsistence.

402a. Supplemental subsistence allowance for low-income members with dependents.

403. Basic allowance for housing.

403b. Cost-of-living allowance in the continental United States.

404. Travel and transportation allowances: general.

404a. Travel and transportation allowances: temporary lodging expenses.

404b. Travel and transportation allowances: lodging expenses at temporary duty

location for members on authorized leave.

405. Travel and transportation allowances: per diem while on duty outside the

United States or in Hawaii or Alaska.

405a. Travel and transportation allowances: departure allowances.

406. Travel and transportation allowances: dependents; baggage and household

effects.

406a. Travel and transportation allowances: authorized for travel performed

under orders that are canceled, revoked, or modified.

406b. Travel and transportation allowances: members of the uniformed services

attached to a ship overhauling or inactivating.

406c. Travel and Transportation allowances: members assigned to a vessel under

construction.

407. Travel and transportation allowances: dislocation allowance.

408. Travel and transportation allowances: travel within limits of duty station.

409. Travel and transportation allowances: house trailers and mobile homes.

410. Travel and transportation allowances: miscellaneous categories.

411. Travel and transportation allowances: administrative provisions.

411a. Travel and transportation allowances: travel performed in connection with

convalescent leave.

411b. Travel and transportation allowances: travel performed in connection with

leave between consecutive overseas tours.

411c. Travel and transportation allowances: travel performed in connection with

rest and recuperative leave from certain stations in foreign countries.

411d. Travel and transportation allowances: transportation incident to personal

emergencies for certain members and dependents.

411e. Travel and transportation allowances: transportation incident to certain

emergencies for members performing temporary duty.

411f. Travel and transportation allowances: transportation for survivors of deceased member to attend the member’s burial ceremonies.

411g. Travel and transportation allowances: transportation incident to voluntary

extensions of overseas tours of duty.

411h. Travel and transportation allowances: transportation of family members

incident to the serious illness or injury of members.

411i. Travel and transportation allowances: parking expenses.

412. Appropriations for travel: may not be used for attendance at certain

meetings.

413. Chairman and Vice Chairman of the Joint Chiefs of Staff.

414. Personal money allowance.

415. Uniform allowance: officers; initial allowance.

416. Uniform allowance: officers; additional allowances.

417. Uniform allowance: officers; general provisions.

418. Clothing allowance: enlisted members.

419. Civilian clothing allowance.

420. Allowances while participating in international sports.

421. Allowances: no increase while dependent is entitled to basic pay.

422. Cadets and midshipmen.

423. Validity of allowance payments based on purported marriages.

424. Band leaders.
TABLE OF SECTIONS OF TITLE 37 52

425. United States Navy Band; United States Marine Corps Band: allowances

while on concert tour.

[426. Repealed.]

427. Family separation allowance.

428. Allowance for recruiting expenses.

429. Travel and transportation allowances: minor dependent schooling.

430. Travel and transportation: dependent children of members stationed

overseas.

431. Benefits for certain members assigned to the Defense Intelligence Agency.

432. Travel and transportation: members escorting certain dependents.

433. Allowance for muster duty.

434. Subsistence reimbursement relating to escorts of foreign arms control

inspection teams.

435. Funeral honors duty: allowance.

436. High-deployment allowance: lengthy or numerous deployments; frequent

mobilizations.

CHAPTER 9—LEAVE

Sec.

501. Payments for unused accrued leave.

502. Absences due to sickness, wounds, and certain other causes.

503. Absence without leave or over leave.

504. Cadets and midshipmen: chapter does not apply to.

CHAPTER 10—PAYMENTS TO MISSING PERSONS

Sec.

551. Definitions.

552. Pay and allowances: continuance while in a missing status; limitations.

553. Allotments: continuance, suspension, initiation, resumption, or increase

while in a missing status; limitations.

554. Travel and transportation: dependents; household and personal effects;

trailers; additional movements; motor vehicles; sale of bulky items;

claims for proceeds; appropriation chargeable.

555. Secretarial review.

556. Secretarial determinations.

557. Settlement of accounts.

558. Income tax deferment.

559. Benefits for members held as captives.

CHAPTER 11—PAYMENTS TO MENTALLY INCOMPETENT PERSONS

Sec.

601. Applicability.

602. Payments: designation of person to receive amounts due.

603. Regulations.

604. Determination of Secretary final.

CHAPTER 13—ALLOTMENTS AND ASSIGNMENTS OF PAY

Sec.

701. Members of the Army, Navy, Air Force, and Marine Corps; contract

surgeons.

[702. Repealed.]

703. Allotments: members of Coast Guard.

704. Allotments: officers of Public Health Service.

[705. Repealed.]

706. Allotments: commissioned officers of the National Oceanic and Atmospheric

Administration.

707. Allotments: members of the National Guard.

CHAPTER 15—PROHIBITIONS AND PENALTIES

Sec.

[801. Repealed.]

802. Forfeiture of pay during absence from duty due to disease from intemperate

use of alcohol or drugs.

803. Commissioned officers of Army or Air Force: forfeiture of pay when dropped

from rolls.

[804. Repealed.]

[805. Repealed.]
53 TABLE OF SECTIONS OF TITLE 37

CHAPTER 17—MISCELLANEOUS RIGHTS AND BENEFITS

Sec.

901. Wartime pay of officer of armed force exercising command higher than his

grade.

902. Pay of crews of wrecked or lost naval vessels.

903. Retired members recalled to active duty; former members.

[904. Repealed.]

905. Reserve officers of the Navy or Marine Corps not on the active-duty list:

effective date of pay or allowances.

906. Extension of enlistment: effect on pay and allowances.

907. Enlisted members and warrant officers appointed as officers: pay and

allowances stabilized.

908. Employment of reserves and retired members by foreign governments.

909. Special and incentive pay: payment at unreduced rates during suspension

of personnel laws.

CHAPTER 19—ADMINISTRATION

Sec.

1001. Regulations relating to pay and allowances.

1002. Additional training or duty without pay: Reserves and members of National

Guard.

1003. Assimilation of pay and allowances.

1004. Computation of pay and allowances for month or part of month.

1005. Army and Air Force: prompt payments required.

1006. Advance payments.

1007. Deductions from pay.

1008. Presidential recommendations concerning adjustments and changes in pay

and allowances.

1009. Adjustments of monthly basic pay.

1010. Commissioned officers: promotions; effective date for pay and allowances.

1011. Mess operations: reimbursement of expenses.

1012. Disbursement and accounting: pay of enlisted members of the National

Guard.

1013. Payment of compensation for victims of terrorism.

1014. Payment date for pay and allowances.

1015. Annual report on effects of recruitment and retention initiatives

55

Chap.

Sec.

1. Definitions ....................................................................... 101

3. Basic Pay ......................................................................... 201

5. Special and Incentive Pays ............................................ 301

7. Allowances ....................................................................... 401

9. Leave ................................................................................ 501

10. Payments to Missing Persons ........................................ 551

11. Payments to Mentally Incompetent Persons ................ 601

13. Allotments and Assignments of Pay .............................. 701

15. Prohibitions and Penalties ............................................. 801

17. Miscellaneous Rights and Benefits ................................ 901

19. Administration ................................................................ 1001

57

CHAPTER 1—DEFINITIONS

Sec.

101. Definitions.

§ 101. Definitions

In addition to the definitions in sections 1–5 of title 1, the following definitions apply in this title:

(1)(A) The term ‘‘United States’’, in a geographical sense,

means the States and the District of Columbia.

(B) The term ‘‘continental United States’’ means the 48

contiguous States and the District of Columbia.

(2) The term ‘‘possessions’’ includes Guam, American

Samoa, and the guano islands.

(3) The term ‘‘uniformed services’’ means the Army, Navy,

Air Force, Marine Corps, Coast Guard, National Oceanic and

Atmospheric Administration, and Public Health Service;

(4) The term ‘‘armed forces’’ means the Army, Navy, Air

Force, Marine Corps, and Coast Guard.

(5) The term ‘‘Secretary concerned’’ means—

(A) the Secretary of the Army, with respect to matters

concerning the Army;

(B) the Secretary of the Navy, with respect to matters

concerning the Navy, the Marine Corps, and the Coast

Guard when it is operating as a service in the Navy;

(C) the Secretary of the Air Force, with respect to matters concerning the Air Force;

(D) the Secretary of Homeland Security, with respect

to matters concerning the Coast Guard when it is not operating as a service in the Navy;

(E) the Secretary of Commerce, with respect to matters concerning the National Oceanic and Atmospheric Administration; and

(F) the Secretary of Health and Human Services, with

respect to matters concerning the Public Health Service.

(6) The term ‘‘National Guard’’ means the Army National

Guard and the Air National Guard.

(7) The term ‘‘Army National Guard’’ means that part of

the organized militia of the several States, Puerto Rico, Guam,

the Canal Zone, the Virgin Islands, and the District of Columbia, active and inactive, that—

(A) is a land force;

(B) is trained, and has its officers appointed, under the

sixteenth clause of section 8, article I, of the Constitution;

(C) is organized, armed, and equipped wholly or partly

at Federal expense; and

(D) is federally recognized.
§ 101 TITLE 37—CH. 1—DEFINITIONS 58

(8) The term ‘‘Army National Guard of the United States’’

means the reserve component of the Army all of whose members are members of the Army National Guard.

(9) The term ‘‘Air National Guard’’ means that part of the

organized military of the several States, Puerto Rico, Guam,

the Canal Zone, the Virgin Islands, and the District of Columbia, active and inactive that—

(A) is an air force;

(B) is trained, and has its officers appointed, under the

sixteenth clause of section 8, article I, of the Constitution;

(C) is organized, armed, and equipped wholly or partly

at Federal expense; and

(D) is federally recognized.

(10) The term ‘‘Air National Guard of the United States’’

means the reserve component of the Air Force all of whose

members are members of the Air National Guard.

(11) The term ‘‘officer’’ means commissioned or warrant officer.

(12) The term ‘‘commissioned officer’’ includes a commissioned warrant officer.

(13) The term ‘‘warrant officer’’ means a person who holds

a commission or warrant in a warrant officer grade.

(14) The term ‘‘enlisted member’’ means a person in an enlisted grade.

(15) The term ‘‘grade’’ means a step or degree in a graduated scale of office or rank, that is established and designated

as a grade by law or regulation.

(16) The term ‘‘rank’’ means the order of precedence among

members of the uniformed services.

(17) The term ‘‘rating’’ means the name (such as ‘‘boatswain’s mate’’) prescribed for members of a uniformed service

in an occupational field. ‘‘rate’’ means the name (such as ‘‘chief

boatswain’s mate’’) prescribed for members in the same rating

or other category who are in the same grade (such as chief

petty officer or seaman apprentice).

(18) The term ‘‘active duty’’ means full-time duty in the active service of a uniformed service, and includes full-time training duty, annual training duty, full-time National Guard duty,

and attendance, while in the active service, at a school designated as a service school by law or by the Secretary concerned.

(19) The term ‘‘active duty for a period of more than 30

days’’ means active duty under a call or order that does not

specify a period of 30 days or less.

(20) The term ‘‘active service’’ means service on active

duty.

(21) The term ‘‘pay’’ includes basic pay, special pay, retainer pay, incentive pay, retired pay, and equivalent pay, but

does not include allowances.

(22) The term ‘‘inactive-duty training’’ means—

(A) duty prescribed for members of a reserve component by the Secretary concerned under section 206 of this

title or any other law; and

(B) special additional duties authorized for members of

a reserve component by an authority designated by the
59 § 101 TITLE 37—CH. 1—DEFINITIONS

Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or

maintenance activities of the units to which they are assigned;

and includes those duties when performed by members of a reserve component in their status as members of the National

Guard, but (except as provided in section 206(d)(2) of this title)

does not include work or study in connection with a correspondence course of a uniformed service.

(23) The term ‘‘member’’ means a person appointed or enlisted in, or conscripted into, a uniformed service.

(24) The term ‘‘reserve component’’ means—

(A) the Army National Guard of the United States;

(B) the Army Reserve;

(C) the Naval Reserve;

(D) the Marine Corps Reserve;

(E) the Air National Guard of the United States;

(F) the Air Force Reserve;

(G) the Coast Guard Reserve; or

(H) the Reserve Corps of the Public Health Service.

(25) The term ‘‘regular compensation’’ or ‘‘regular military

compensation (RMC)’’ means the total of the following elements that a member of a uniformed service accrues or receives, directly or indirectly, in cash or in kind every payday:

basic pay, basic allowance for housing, basic allowance for subsistence, and Federal tax advantage accruing to the aforementioned allowances because they are not subject to Federal income tax.

(26) The term ‘‘contingency operation’’ has the meaning

given that term in section 101 of title 10.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 451; amended P.L. 89–718, § 49(a)(1), Nov. 2, 1966, 80 Stat.

1121; P.L. 90–623, § 3(1), Oct. 22, 1968, 82 Stat. 1314; P.L. 92–492, § 3, Oct. 13, 1972, 86 Stat.

810; P.L. 93–419, § 1, Sept. 19, 1974, 88 Stat. 1152; P.L. 96–513, §§ 506(1), 516(1), Dec. 12, 1980,

94 Stat. 2918, 2937; P.L. 96–579, § 11, Dec. 23, 1980, 94 Stat. 3368; P.L. 96–600, § 3(b), Dec.

24, 1980, 94 Stat. 3494; P.L. 98–525, § 414(c), Oct. 19, 1984, 98 Stat. 2520; P.L. 100–26, § 8(e)(1),

Apr. 21, 1987, 101 Stat. 286; P.L. 100–456, § 1233(f)(2), Sept. 29, 1988, 102 Stat. 2058; P.L. 102–

190, § 631(b), Dec. 5, 1991, 105 Stat. 1380; P.L. 102–484, § 1051(b)(2), Oct. 23, 1992, 106 Stat.

2499; P.L. 103–160, § 1182(c)(1), Nov. 30, 1993, 107 Stat. 1772; P.L. 105–85, § 603(d)(1)(A), Nov.

18, 1997, 111 Stat. 1782; P.L. 105–261, § 651, Oct. 16, 1998, 112 Stat. 2051; P.L. 107–107,

§ 603(b), Dec. 28, 2001, 115 Stat. 1133; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314;

P.L. 107–314, § 654(a), Dec. 2, 2002, 116 Stat. 2581.)
60

CHAPTER 3—BASIC PAY

Sec.

201. Pay grades: assignment to; general rules.

202. Pay grade: retired Coast Guard rear admirals (lower half).

203. Rates.

204. Entitlement.

205. Computation: service creditable.

206. Reserves; members of National Guard: inactive-duty training.

207. Band leaders.

[208. Repealed.]

209. Members of precommissioning programs.

210. Pay of senior enlisted members during terminal leave and while hospitalized.

211. Participation in Thrift Savings Plan.

§ 201. Pay grades: assignment to; general rules

(a) For the purpose of computing their basic pay, commissioned

officers of the uniformed services (other than commissioned warrant officers) are assigned by the grade or rank in which serving

to the following grades:

Pay grade Army, Air Force, and

Marine Corps

Navy, Coast Guard, and

National Oceanic and Atmospheric Administration

Public Health Service

O–10 ....... General ................ Admiral ...................... Assistant Secretary for Health.

O–9 ......... Lieutenant general.Vice admiral .............. Surgeon General.

O–8 ......... Major general ...... Rear admiral ............. Deputy Surgeon General. Assistant

Surgeon General having rank of

major general.

O–7 ......... Brigadier general Rear admiral (lower

half).

Assistant Surgeon General having

rank of brigadier general.

O–6 ......... Colonel ................. Captain ...................... Director grade.

O–5 ......... Lieutenant colonel.Commander ............... Senior grade.

O–4 ......... Major ................... Lieutenant Commander.Full grade.

O–3 ......... Captain ................ Lieutenant ................. Senior assistant grade.

O–2 ......... 1st lieutenant ...... Lieutenant (junior

grade).

Assistant grade.

O–1 ......... 2d lieutenant ....... Ensign ........................ Junior assistant grade.

(b) For the purpose of computing their basic pay, warrant officers of the armed forces are assigned, by the warrant officer grade

in which serving, to the following pay grades:

Pay Grade: Warrant Officer Grade:

W–5 ........................................................ Chief Warrant Officer, W–5.

W–4 ........................................................ Chief Warrant Officer, W–4.

W–3 ........................................................ Chief Warrant Officer, W–3.

W–2 ........................................................ Chief Warrant Officer, W–2.

W–1 ........................................................ Warrant Officer, W–1.

(c) Unless entitled to the basic pay of a higher pay grade, an

aviation cadet of the Navy, Air Force, Marine Corps, or Coast

Guard is entitled to monthly basic pay at the lowest rate prescribed

for pay grade E–4.
61 § 203 TITLE 37—CH. 3—BASIC PAY

(d) Unless he is entitled to the basic pay of a higher pay grade,

an aviation pilot of the Naval Reserve, Marine Corps Reserve, or

Coast Guard Reserve is entitled to monthly basic pay at the rate

prescribed for pay grade E–5.

(e) Except as provided by subsections (c) and (d), enlisted members of the uniformed services shall, for the purpose of computing

their basic pay, be distributed by the Secretary concerned in the

various enlisted pay grades set forth in section 203 of this title.

However, except as provided by section 307 of this title an enlisted

member may not be placed in pay grade E–8 or E–9 until he has

completed at least 8 years or 10 years, respectively, of enlisted

service computed under section 205 of this title.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 453; amended P.L. 88–132, § 3(a), Oct. 2, 1963, 77 Stat.

212; P.L. 89–718, § 49(a)(1), Nov. 2, 1966, 80 Stat. 1121; P.L. 91–278, § 3(1), June 12, 1970, 84

Stat. 306; P.L. 95–79, § 302(a)(1), July 30, 1977, 91 Stat. 326; P.L. 96–76, § 313(a), Sept. 29,

1979, 93 Stat. 586; P.L. 96–513, §§ 506(3), 516(2), Dec. 12, 1980, 94 Stat. 2918, 2937; P.L. 97–

86, § 405(c), Dec. 1, 1981, 95 Stat. 1106; P.L. 98–94, § 932(d), Sept. 24, 1983, 97 Stat. 650; P.L.

98–557, § 25(b)(1), Oct. 30, 1984, 98 Stat. 2872; P.L. 99–145, § 514(d)(1), Nov. 8, 1985, 99 Stat.

629; P.L. 101–502, § 5(k), Nov. 3, 1990, 104 Stat. 1289, P.L. 102–25, § 702(b)(1), April 6, 1991,

105 Stat. 117; P.L. 102–190, § 605 and 1111(b), Dec. 5, 1991, 105 Stat. 1374 and 1491.)

§ 202. Pay grade: retired Coast Guard rear admirals (lower

half)

An officer of the Coast Guard holding a permanent appointment in the grade of rear admiral (lower half) on the retired list,

and who in time of war or national emergency has served satisfactorily on active duty for two years in that grade or in a higher

grade, is entitled when on active duty to the basic pay of a rear

admiral.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 454; amended P.L. 89–718, § 50, Nov. 2, 1966, 80 Stat.

1121; P.L. 90–130, § 3(1), Nov. 8, 1967, 81 Stat. 383; P.L. 90–179, § 7, Dec. 8, 1967, 81 Stat.

548; P.L. 90–623, § 3(2), Oct. 22, 1968, 82 Stat. 1314; P.L. 92–451, § 2, Oct. 2, 1972, 86 Stat.

757; P.L. 96–342, § 1004(a), Sept. 8, 1980, 94 Stat. 1120; P.L. 96–513, § 401, Dec. 12, 1980, 94

Stat. 2904; P.L. 97–417, § 3(a), Jan. 4, 1983, 96 Stat. 2087; P.L. 98–557, § 25(b)(2)(A), Oct. 30,

1984, 98 Stat. 2872; P.L. 98–145, § 514(d)(2) (A), (B), Nov. 8, 1985, 99 Stat. 629.)

§ 203. Rates

(a)(1) The rates of monthly basic pay for members of the uniformed services within each pay grade are those prescribed in accordance with section 1009 of this title or as otherwise prescribed

by law.

(2) Notwithstanding the rates of basic pay in effect at any time

as provided by law, the rates of basic pay payable for commissioned

officers in pay grades O–7 through O–10 may not exceed the

monthly equivalent of the rate of pay for level III of the Executive

Schedule, and the rates of basic pay payable for all other officers

and for enlisted members may not exceed the monthly equivalent

of the rate of pay for level V of the Executive Schedule.

(b) While serving as a permanent professor at the United

States Military Academy or the United States Air Force Academy

or as a member of the permanent commissioned teaching staff at

the United States Coast Guard Academy, an officer who has over

36 years of service computed under section 205 of this title is, in

addition to the pay and allowances to which he is otherwise entitled under this title, entitled to additional pay in the amount of

$250 a month. This additional pay may not be used in the computation of retired pay.
§ 204 TITLE 37—CH. 3—BASIC PAY 62

(c) A cadet at the United States Military Academy, the United

States Air Force Academy, or the Coast Guard Academy, or a midshipman at the United States Naval Academy, is entitled to monthly cadet pay, or midshipman pay, at the monthly rate equal to 35

percent of the basic pay of a commissioned officer in the pay grade

O–1 with less than two years of service.

(d)(1) The basic pay of a commissioned officer who is in pay

grade O–1, O–2, or O–3 and who is credited with a total of over

four years’ service described in paragraph (2) shall be computed in

the same manner as the basic pay of a commissioned officer in the

same pay grade who has been credited with over four years’ active

service as an enlisted member.

(2) Service to be taken into account for purposes of computing

basic pay under paragraph (1) is as follows:

(A) Active service as a warrant officer or as a warrant officer and an enlisted member.

(B) Service as a warrant officer, as an enlisted member, or

as a warrant officer and an enlisted member, for which at least

1,460 points have been credited to the officer for the purposes

of section 12732(a)(2) of title 10.

(e)(1) A student at the United States Military Academy Preparatory School, the United States Naval Academy Preparatory

School, or the United States Air Force Academy Preparatory School

who was selected to attend the preparatory school from civilian life

is entitled to monthly student pay at the same rate as provided for

cadets and midshipmen under subsection (c).

(2) A student at a preparatory school referred to in paragraph

(1) who, at the time of the student’s selection to attend the preparatory school, was an enlisted member of the uniformed services

on active duty for a period of more than 30 days shall continue to

receive monthly basic pay at the rate prescribed for the student’s

pay grade and years of service as an enlisted member.

(3) The monthly student pay of a student described in paragraph (1) shall be treated for purposes of the accrual charge for the

Department of Defense Military Retirement Fund established

under section 1461 of title 10 in the same manner as monthly cadet

pay or midshipman pay under subsection (c).

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 456; amended P.L. 88–132, § 2, Oct. 2, 1963, 77 Stat. 210;

P.L. 88–422, § 1, Aug. 12, 1964, 78 Stat. 395; P.L. 89–132, § 1, Aug. 21, 1965, 79 Stat. 545; P.L.

89–501, § 301, July 13, 1966, 80 Stat. 276; P.L. 90–207, § 1(1), Dec. 16, 1967, 81 Stat. 649; P.L.

91–278, § 3(2), June 12, 1970, 84 Stat. 306; P.L. 92–129, § 201, Sept. 28, 1971, 85 Stat. 355; P.L.

92–455, § 3, Oct. 2, 1972, 86 Stat. 761; P.L. 93–419, § 2, Sept. 19, 1974, 88 Stat. 1152; P.L. 95–

79, § 302(a)(2), July 30, 1977, 91 Stat. 326; P.L. 96–343, § 6(b), Sept. 8, 1980, 94 Stat. 1127; P.L.

97–60, § 102(a), Oct. 14, 1981, 95 Stat. 992; P.L. 98–94, § 902(a), Sept. 24, 1983, 97 Stat. 635;

P.L. 99–145, § 1303(b)(1), Nov. 8, 1985, 99 Stat. 740; P.L. 99–661, § 601(c), Nov. 14, 1986, 100

Stat. 3874; P.L. 100–180, § 601(c), formerly § 601(d), Dec. 4, 1987, 101 Stat. 1092; P.L. 100–202,

§ 110(b), Dec. 22, 1987, 101 Stat. 1329–436; P.L. 100–456, § 601(d), Sept. 29, 1988, 102 Stat.

1976; P.L. 101–189, § 601(c), Nov. 29, 1989, 103 Stat. 1445; P.L. 103–160, § 603(a), Nov. 30,

1993, 107 Stat. 1678; P.L. 103–337, § 601(c), Oct. 5, 1994, 108 Stat. 2779; P.L. 104–201, § 602,

Sept. 23, 1996, 110 Stat. 2540; P.L. 105–261, § 602(a), Oct. 16, 1998, 112 Stat. 2037; P.L. 106–

65, § 601(d), Oct. 5, 1999, 113 Stat. 648; P.L. 106–398, § 1 (§ 612(a)), Oct. 30, 2000, 114 Stat.

1654A–150; P.L. 107–107, § 602(a), Dec. 28, 2001, 115 Stat. 1132; P.L. 107–314, § 1062(f)(1), Dec.

2, 2002, 116 Stat. 2651; P.L. 108–136, § 603, Nov. 24, 2003, 117 Stat. 1499.)

§ 204. Entitlement

(a) The following persons are entitled to the basic pay of the

pay grade to which assigned or distributed, in accordance with

their years of service computed under section 205 of this title—
63 § 204 TITLE 37—CH. 3—BASIC PAY

1The exercises or duties referenced by the sections referred to in section 204(a)(2) include the

following: service on reserve forces policy boards and committees (10 U.S.C. 10302, 10305); duty

with the National Guard Bureau (10 U.S.C. 10502); assignment to a position in Federal service

(10 U.S.C. 12402); participation in field exercises (32 U.S. 503); participation in National Guard

schools and small arms competitions (32 U.S.C. 504); attendance at Army and Air Force schools

and field exercises (32 U.S.C. 505); and assignment of members of the Regular Army of Regular

Air Force for instruction of National Guard (32 U.S.C. 506).

(1) a member of a uniformed service who is on active duty;

and

(2) a member of a uniformed service, or a member of the

National Guard who is not a Reserve of the Army or the Air

Force, who is participating in full-time training, training duty

with pay, or other full-time duty, provided by law, including

participation in exercises or the performance of duty under section 10302, 10305, 10502, or 12402 of title 10, or section 503,

504, 505, or 506 of title 32. 1

(b) For the purposes of subsection (a), under regulations prescribed by the President, the time necessary for a member of a uniformed service who is called or ordered to active duty for a period

of more than 30 days to travel from his home to his first duty station and from his last duty station to his home, by the mode of

transportation authorized in his call or orders, is considered active

duty.

(c) A member of the National Guard who is called into Federal

service for a period of 30 days or less is entitled to basic pay from

the date when he appears at the place of company rendezvous.

However, this subsection does not authorize any expenditure before

arriving at the place of rendezvous that is not authorized by law

to be paid after arrival at that place.

(d) Full-time training, training duty with pay, or other fulltime duty performed by a member of the Army National Guard of

the United States or the Air National Guard of the United States

in his status as a member of the National Guard, is active duty for

the purposes of this section.

(e) A payment accruing under any law to a member of a uniformed service incident to his release from active duty or for his

return home incident to that release may be paid to him before his

departure from his last duty station, whether or not he actually

performs the travel involved. If a member receives a payment

under this subsection but dies before that payment would have

been made but for this subsection, no part of that payment may be

recovered by the United States.

(f) A cadet of the United States Military Academy or the

United States Air Force Academy, or a midshipman of the United

States Naval Academy, who, upon graduation from one of those

academies, is appointed as a second lieutenant of the Army or the

Air Force is entitled to the basic pay of pay grade O–1 beginning

upon the date of his graduation.

(g)(1) A member of a reserve component of a uniformed service

is entitled, to the pay and allowances provided by law or regulation

for a member of a regular component of a uniformed service of corresponding grade and length of service whenever such member is

physically disabled as the result of an injury, illness, or disease incurred or aggravated—

(A) in line of duty while performing active duty;
§ 204 TITLE 37—CH. 3—BASIC PAY 64

(B) in line of duty while performing inactive-duty training

(other than work or study in connection with a correspondence

course of an armed force or attendance in an inactive status at

an educational institution under the sponsorship of an armed

force or the Public Health Service);

(C) while traveling directly to or from such duty or training;

(D) in line of duty while remaining overnight immediately

before the commencement of inactive-duty training, or while

remaining overnight, between successive periods of inactiveduty training, at or in the vicinity of the site of the inactiveduty training; or

(E) in line of duty while—

(i) serving on funeral honors duty under section 12503

of title 10 or section 115 of title 32;

(ii) traveling to or from the place at which the duty

was to be performed; or

(iii) remaining overnight at or in the vicinity of that

place immediately before so serving, if the place is outside

reasonable commuting distance from the member’s residence.

(2) In the case of a member who receives earned income from

nonmilitary employment or self-employment performd in any

month in which the member is otherwise entitled to pay and allowances under paragraph (1), the total pay and allowances shall be

reduced by the amount of such income. In calculating earned income for the purpose of the preceding sentence, income from an income protection plan, vacation pay, or sick leave which the member

elects to receive shall be considered.

(h)(1) A member of a reserve component of a uniformed service

who is physically able to perform his military duties, is entitled,

upon request, to a portion of the monthly pay and allowances provided by law or regulation for a member of a regular component

of a uniformed service of corresponding grade and length of service

for each month for which the member demonstrates a loss of

earned income from nonmilitary employment or self-employment as

a result of an injury, illness, or disease incurred or aggravated—

(A) in line of duty while performing active duty;

(B) in line of duty while performing inactive-duty training

(other than work or study in connection with a correspondence

course of an armed force or attendance in an inactive status at

an educational institution under the sponsorship of an armed

force or the Public Health Service);

(C) while traveling directly to or from that duty or training;

(D) in line of duty while remaining overnight immediately

before the commencement of inactive-duty training, or while

remaining overnight, between successive periods of inactiveduty training, at or in the vicinity of the site of the inactiveduty training; or

(E) in line of duty while—

(i) serving on funeral honors duty under section 12503

of title 10 or section 115 of title 32;
65 § 205 TITLE 37—CH. 3—BASIC PAY

(ii) traveling to or from the place at which the duty

was to be performed; or

(iii) remaining overnight at or in the vicinity of that

place immediately before so serving, if the place is outside

reasonable commuting distance from the member’s residence.

(2) The monthly entitlement may not exceed the member’s

demonstrated loss of earned income from nonmilitary or self-employment. In calculating such loss of income, income from an income protection plan, vacation pay, or sick leave which the member

elects to receive shall be considered.

(i)(1) The total amount of pay and allowances paid under subsections (g) and (h) and compensation paid under section 206(a) of

this title for any period may not exceed the amount of pay and allowances provided by law or regulation for a member of a regular

component of a uniformed service of corresponding grade and

length of service for that period.

(2) Pay and allowances may be paid under subsection (g) or (h)

for a period of more than six months. The Secretary concerned may

extend such periods in any case if the Secretary determines that

it is in the interests of fairness and equity to do so.

(3) A member is not entitled to benefits under subsection (g)

or (h) if the injury, illness, disease, or aggravation of an injury, illness, or disease is the result of the gross negligence or misconduct

of the member.

(4) Regulations with respect to procedures for paying pay and

allowances under subsections (g) and (h) shall be prescribed—

(A) by the Secretary of Defense for the armed forces under

the jurisdiction of the Secretary; and

(B) by the Secretary of Homeland Security for the Coast

Guard when the Coast Guard is not operating as a service in

the Navy.

(j) A member of the uniformed services who is entitled to medical or dental care under section 1074a of title 10 is entitled to

travel and transportation allowances, or monetary allowance in

place thereof, for necessary travel incident to such care, and return

to his home upon discharge from treatment.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 457; amended P.L. 96–513, § 506(4), Dec. 12, 1980, 94 Stat.

2919; P.L. 98–94, § 1012(b), Sept. 24, 1983, 97 Stat. 665; P.L. 99–433, § 531(b), Oct. 1, 1986, 100

Stat. 1063; P.L. 99–661, § 604(b), Nov. 14, 1986, 100 Stat. 3875; P.L. 100–456, § 631 (a), (b),

Sept. 29, 1988, 102 Stat. 1984, 1985, P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117; P.L.

103–337, § 1676(b)(1), Oct. 5, 1994, 108 Stat. 3019; P.L. 104–106, § 702(c), Feb. 10, 1996, 110

Stat. 371; P.L. 105–85, § 513(f), Nov. 18, 1997, 111 Stat. 1732; P.L. 106–398, § 1 (§ 665(a)), Oct.

30, 2000, 114 Stat. 1654A–168; P.L. 107–107, § 513(d), Dec. 28, 2001, 115 Stat. 1093; P.L. 107–

296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314.)

§ 205. Computation: service creditable

(a) Subject to subsections (b) and (c), for the purpose of computing the basic pay of a member of a uniformed service, his years

of service are computed by adding—

(1) all periods of active service as an officer, Army field

clerk, flight officer, aviation midshipman, or enlisted member

of a uniformed service;

(2) all periods during which he was enlisted or held an appointment as an officer, Army field clerk, or flight officer of—

(A) a regular component of a uniformed service;
§ 205 TITLE 37—CH. 3—BASIC PAY 66

1 In section 205(a), the referenced provisions in title 10 relate to the computation of retired

pay of certain individuals retired for disability.

(B) the Regular Army Reserve;

(C) the Organized Militia before July 1, 1916;

(D) the National Guard;

(E) the National Guard Reserve;

(F) a reserve component of a uniformed service;

(G) the Naval Militia;

(H) the National Naval Volunteers;

(I) the Naval Reserve Force;

(J) the Army without specification of component;

(K) the Air Force without specification of component;

(L) the Marine Corps Reserve Force;

(M) the Philippine Scouts; or

(N) the Philippine Constabulary;

(3) for a commissioned officer in service on June 30, 1922

all service that was then counted in computed longevity pay

and all service as a contract surgeon serving full time;

(4) all periods during which he held an appointment as a

nurse, reserve nurse, or commissioned officer in the Army

Nurse Corps as it existed at any time before April 16, 1947,

the Navy Nurse Corps as it existed at any time before April

16, 1947, or the Public Health Service, or a reserve component

of any of them;

(5) all periods during which he was a deck officer or junior

engineer in the National Oceanic and Atmospheric Administration;

(6) all periods that, under law in effect on January 10,

1962, were authorized to be credited in computing basic pay;

and

(7) all periods while—

(A) on a temporary disability retired list, honorary retired list, or a retired list of a uniformed service;

(B) entitled to retired pay, retirement pay, or retainer

pay, from a uniformed service or the Department of Veterans Affairs, as a member of the Fleet Reserve or the

Fleet Marine Corps Reserve; or

(C) a member of the Honorary Reserve of the Officers’

Reserve Corps or the Organized Reserve Corps.

Except for any period of active service described in clause (1) and

except as provided by subsections (b), (c), and (d) of section 1402

and subsections (b), (c), and (d) of section 1402a of title 10, 1 a period of service described in clauses (2) through (7) that is performed

while on a retired list, in a retired status, or in the Fleet Reserve

or Fleet Marine Corps Reserve, may not be included to increase retired pay, retirement pay, or retainer pay. For the purpose of

clause (5), periods during which a member was a deck officer or

junior engineer in the National Oceanic and Atmospheric Administration includes periods during which a member was a deck officer

or junior engineer in the Environmental Science Services Administration or the Coast and Geodetic Survey.

(b) A period of time may not be counted more than once under

subsection (a).
67 § 206 TITLE 37—CH. 3—BASIC PAY

(c) The periods of service authorized to be counted under subsection (a) shall, under regulations prescribed by the Secretary concerned, include service performed by a member of a uniformed

service before he became 18 years of age.

(d) Notwithstanding subsection (a), a commissioned officer may

not count in computing basic pay a period of service after October

13, 1964, that the officer performed concurrently as a member of

the Senior Reserve Officers’ Training Corps, except for service that

the officer performed on or after August 1, 1979, other than for

training as an enlisted member of the Selected Reserve may be so

counted.

(e)(1) Notwithstanding subsection (a), a period of service described in paragraph (2) of a member who enlists in a reserve component may not be counted under this section.

(2) Paragraph (1) applies to the following service:

(A) Service performed while a member of a reserve component under an enlistment under section 12103(b) or 12103(d)

of title 10 before the member begins service on active duty

under such section (including a period of active duty for training) unless the member performs inactive-duty training before

beginning service on active duty or active duty for training;

(B) Service performed while a member of a reserve component under an enlistment under section 513 of title 10 (other

than a period of active duty to which the member is ordered

under chapter 1209 of title 10 or another provison of law).

(f) Notwithstanding subsection (a), the periods of service of a

commissioned officer appointed under section 12203 of title 10 after

receiving financial assistance under section 16401 of such title that

are counted under this section may not include a period of service

after January 1, 2000, that the officer performed concurrently as

an enlisted member of the Marine Corps Platoon Leaders Class

program and the Marine Corps Reserve, except that service after

that date that the officer performed before commissioning (concurrently with the period of service as a member of the Marine Corps

Platoon Leaders Class program) as an enlisted member on active

duty or as a member of the Selected Reserve may be so counted.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 458; amended P.L. 88–647, § 202(1), Oct. 13, 1964, 78 Stat.

1070; P.L. 89–718, § 49(a)(1), (b), Nov. 2, 1966, 80 Stat. 1121; P.L. 90–623, § 3(3), Oct. 22, 1968,

82 Stat. 1314; P.L. 93–545, § 2, Dec. 26, 1974, 88 Stat. 1741; P.L. 96–342, § 813(b)(3)(D), Sept.

8, 1980, 94 Stat. 1104, P.L. 96–513, § 402, § 516(3), Dec. 12, 1980, 94 Stat. 2904, 2937; P.L. 98–

525, § 607(a), Oct. 19, 1984, 98 Stat. 2538; P.L 101–189, § 501(c), Nov. 29, 1989, 103 Stat. 1435,

P.L. 102–25, § 702(b)(1) and (2), April 6, 1991, 105 Stat. 117; P.L. 102–484, § 517(b), Oct. 23,

1992, 106 Stat. 2407; P.L. 103–35, § 204(a)(1), May 31, 1993, 107 Stat. 102; P.L. 103–337,

§ 1676(b)(2), Oct. 5, 1994, 108 Stat. 3019; P.L. 104–201, § 507(b), Sept. 23, 1996, 110 Stat. 2512;

P.L. 105–85, § 1073(b), Nov. 18, 1997, 111 Stat. 1904; P.L. 106–65, § 551(c), Oct. 5, 1999, 113

Stat. 614; P.L. 106–398, § 1 (§ 533(e)), Oct. 30, 2000, 114 Stat. 1654A–111.)

§ 206. Reserves; members of National Guard: inactive-duty

training

(a) Under regulations prescribed by the Secretary concerned,

and to the extent provided for by appropriations, a member of the

National Guard or a member of a reserve component of a uniformed service who is not entitled to basic pay under section 204

of this title, is entitled to compensation, at the rate of 1⁄30 of the

basic pay authorized for a member of a uniformed service of a corresponding grade entitled to basic pay—
§ 206 TITLE 37—CH. 3—BASIC PAY 68

(1) for each regular period of instruction, or period of appropriate duty, at which the member is engaged for at least

two hours, including that performed on a Sunday or holiday;

(2) for the performance of such other equivalent training,

instruction, duty, or appropriate duties, as the Secretary may

prescribe; or

(3) for a regular period of instruction that the member is

scheduled to perform but is unable to perform because of physical disability resulting from an injury, illness, or disease incurred or aggravated—

(A) in line of duty while performing—

(i) active duty; or

(ii) inactive-duty training;

(B) while traveling directly to or from that duty or

training (unless such injury, illness, disease, or aggravation of an injury, illness, or disease is the result of the

gross negligence or misconduct of the member); or

(C) in line of duty while while remaining overnight immediately before the commencement of inactive-duty training, or remaining overnight, between successive periods of

inactive-duty training, at or in the vicinity of the site of

the inactive-duty training.

(b) The regulations prescribed under subsection (a) for each

uniformed service, the National Guard, and each of the classes of

organization of the reserve components within each uniformed

service, may be different. The Secretary concerned shall, for the

National Guard and each of the classes of organization within each

uniformed service, prescribe—

1) minimum standards that must be met before an assembly for drill or other equivalent period of training, instruction,

duty, or appropriate duties may be credited for pay purposes,

and those standards may require the presence for duty of officers and enlisted members in numbers equal to or more than

a minimum number or percentage of the unit strength for a

specified period of time with participation in a prescribed kind

of training;

(2) the maximum number of assemblies or periods of other

equivalent training, instruction, duty, or appropriate duties,

that may be counted for pay purposes in each fiscal year or in

lesser periods of time; and

(3) The minimum number of assemblies or periods of other

equivalent training, instruction, duty, or appropriate duties

that must be completed in stated periods of time before the

members of units or organizations can qualify for pay.

(c) A person enlisted in the inactive National Guard is not entitled to pay under this section.

(d)(1) Except as provided in paragraph (2), this section does not

authorize compensation for work or study performed by a member

of a reserve component in connection with correspondence courses

of a uniformed service.

(2) A member of the Selected Reserve of the Ready Reserve

may be paid compensation under this section at a rate and under

terms determined by the Secretary of Defense, but not to exceed

the rate otherwise applicable to the member under subsection (a),
69 § 209 TITLE 37—CH. 3—BASIC PAY

upon the member’s successful completion of a course of instruction

undertaken by the member using electronic-based distributed

learning methodologies to accomplish training requirements related

to unit readiness or mobilization, as directed for the member by the

Secretary concerned. The compensation may be paid regardless of

whether the course of instruction was under the direct control of

the Secretary concerned or included the presence of an instructor.

(e) A member of the National Guard or of a reserve component

of the uniformed services may not be paid under this section for

more than four periods of equivalent training, instruction, duty, or

appropriate duties performed during a fiscal year instead of the

member’s regular period of instruction or regular period of appropriate duty during that fiscal year.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 460; amended P.L. 98–525, § 1402(a), Oct. 19, 1984, 98 Stat.

2620; P.L. 99–661, § 604(c), Nov. 14, 1986, 100 Stat. 3876; P.L. 100–456, § 631(c), Sept. 29, 1988,

102 Stat. 1985; P.L. 104–106, § 702(d), Feb. 10, 1996, 110 Stat. 371; P.L. 105–85, §513(g), Nov.

18, 1997, 111 Stat. 1732; P.L. 107–107, § 603(a), Dec. 28, 2001, 115 Stat. 1133.)

§ 207. Band leaders

(a) The leader of the Army Band is entitled to the basic pay

of a captain in the Army.

(b) The leader of the United States Navy Band is entitled to

the basic pay of a lieutenant in the Navy.

(c) A member of the Marine Corps who is appointed as director

of assistant director of the United States Marine Band under section 6222 of title 10 is entitled, while serving thereunder, only to

the basic pay of an officer in the grade in which he is serving. However, his basic pay may not be less than that to which he was entitled at the time of his appointment under that section.

(d) The leader of the Naval Academy Band is entitled to the

basic pay of the grade the Secretary of the Navy prescribes. The

second leader is entitled to the basic pay of a warrant officer, W–

1.

(e) The director of the Coast Guard Band is entitled to the

basic pay of an officer in the grade in which he is serving. However, his basic pay may not be less than that to which he was entitled at the time of his appointment as director.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 460; amended P.L. 89–189, § 2, Sept. 17, 1965, 79 Stat.

820; P.L. 95–551, § 3(b)(1), Oct. 30, 1978, 92 Stat. 2069.)

ø§ 208. Repealed. P.L. 91–482, § 1(b), 84 Stat. 1082.¿

§ 209. Members of precommissioning programs

(a) SENIOR ROTC MEMBERS IN ADVANCED TRAINING.—(1) Except when on active duty, a member of the Senior Reserve Officers’

Training Corps who is selected for advanced training under section

2104 of title 10 is entitled to a monthly subsistence allowance at

a rate prescribed under paragraph (2) beginning on the day he

starts advanced training and ending upon the completion of his instruction under that section, but in no event shall any member receive such pay for more than 30 months.

(2) The Secretary of Defense shall prescribe by regulation the

monthly rates for subsistence allowances provided under this section. The rate may not be less than $250 per month, but may not

exceed $674 per month.
§ 209 TITLE 37—CH. 3—BASIC PAY 70

(3) A subsistence allowance under this section may not be considered financial assistance requiring additional service within the

meaning of the third sentence of section 6(d)(1) of the Military Selective Act (50 U.S.C App. 456(d)(1)).

(b) SENIOR ROTC MEMBERS APPOINTED IN RESERVES.—Except

when on active duty, a cadet or midshipman appointed under section 2107 of title 10 is entitled to a monthly subsistence allowance

at a rate prescribed under subsection (a). A member enrolled in the

first two years of a four-year program is entitled to receive subsistence for a maximum of twenty months. A member enrolled in the

advanced course is entitied to subsistence as prescribed for a member enrolled under section 2104 of title 10 as prescribed in subsection (a).

(c) NONSCHOLARSHIP SENIOR ROTC MEMBERS NOT IN ADVANCED TRAINING.—A member of the Selected Reserve Officers’

Training Corps who has entered into an agreement under section

2103a of title 10 is entitled to a monthly subsistence allowance at

a rate prescribed under subsection (a). That allowance may be paid

to the member by reason of such agreement for a maximum of 20

months.

(d) PAY WHILE ATTENDING TRAINING OR PRACTICE CRUISE.—

Each cadet or midshipman in the Senior Reserve Officers’ Training

Corps, while he is attending training or practice cruises under

chapter 103 of title 10 if the training or cruise is of at least four

weeks duration and must be completed before the cadet or midshipman is commissioned, and each applicant for membership in

the Senior Reserve Officers’ Training Corps, while he is attending

field training or practice cruises to satisfy the requirements of section 2104(b)(6)(B) of title 10 for admission to advanced training, is

entitled, while so attending, to pay at the rate prescribed for cadets

and midshipmen at the United States Military, Naval, and Air

Force Academies under section 203(c) of this title, except that the

rate for a cadet or midshipman who is a member of the regular

component of an armed force shall be the rate of basic pay applicable to the member under section 203 of this title.

(e) MEMBERS OF MARINE CORPS OFFICER CANDIDATE PROGRAM.—Except when serving on active duty, a member who is enrolled in a Marine Corps officer candidate program which requires

a baccalaureate degree as a prerequisite to being commissioned as

an officer and who is not enrolled in a program established under

chapter 103 of title 10 or an academy established under chapter

403, 603, or 903 of title 10 may be paid a subsistence allowance at

a monthly rate prescribed under subsection (a) for a member of the

Senior Reserve Officers’ Training Corps who is selected for advanced training under section 2104 of title 10.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 461; amended P.L. 88–647, § 202(2), Oct. 13, 1964, 78 Stat.

1070; P.L. 89–51, § 3, June 28, 1965, 79 Stat. 173; P.L. 89–718, § 51, Nov. 2, 1966, 80 Stat. 1121;

P.L. 92–171, § 1, Nov. 24, 1971, 85 Stat. 490; P.L. 95–79, § 302(a)(3) (A), (B), July 30, 1977, 91

Stat. 326; P.L. 96–342, § 811(a), Sept. 8, 1980, 94 Stat. 1098; P.L. 96–513, § 516(4), Dec. 12,

1980, 94 Stat. 2938; P.L. 96–579, § 8, Dec. 23, 1980, 94 Stat. 3368; P.L. 98–94, § 1003(a)(4), Sept.

24, 1983, 97 Stat. 656; P.L. 100–456, § 633(d), Sept. 29, 1988, 102 Stat. 1987; P.L. 101–189,

§ 653(d), Nov. 29, 1989, 103 Stat. 1462; P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117;

P.L. 103–337, § 603(a), Oct. 5, 1994, 108 Stat. 2782; P.L. 106–65, § 546(a), Oct. 5, 1999, 113 Stat.

608; P.L. 106–398, § 1 (§ 612(b),(c)), Oct. 30, 2000, 114 Stat. 1654A–150; P.L. 107–107, § 535(b),

Dec. 28, 2001, 115 Stat. 1107; P.L. 107–314, § 1062(g)(2), Dec. 2, 2002, 116 Stat. 2651; P.L. 108–

136, § 523(a), Nov. 24, 2003, 117 Stat. 1463.)
71 § 211 TITLE 37—CH. 3—BASIC PAY

§ 210. Pay of senior enlisted members during terminal leave

and while hospitalized

(a) A noncommissioned officer of an armed force who, immediately following the completion of service as the senior enlisted

member of that armed force, is placed on terminal leave pending

retirement shall be entitled, for not more than 60 days while in

such status, to the rate of basic pay authorized for the senior enlisted member of that armed force.

(b) A noncommissioned officer of an armed force who is hospitalized and who, during or immediately before such hospitalization, completed service as the senior enlisted member of that

armed force, shall continue to be entitled, for not more than 180

days while so hospitalized, to the rate of basic pay authorized for

the senior enlisted member of that armed force.

(c) In this section, the term ‘‘senior enlisted member’’ means

the following:

(1) The Sergeant Major of the Army.

(2) The Master Chief Petty Officer of the Navy.

(3) The Chief Master Sergeant of the Air Force.

(4) The Sergeant Major of the Marine Corps.

(5) The Master Chief Petty Officer of the Coast Guard.

(Added P.L. 102–190, § 606, Dec. 5, 1991, 105 Stat. 1375; amended P.L. 104–201, § 603(a), (b)(1),

Sept. 23, 1996, 110 Stat. 2540.)

§ 211. Participation in Thrift Savings Plan

(a) DEFINITION.—In this section, the term ‘member’ means—

(1) a member of the uniformed services serving on active

duty; and

(2) a member of the Ready Reserve in any pay status.

(b) AUTHORITY.—Any member may participate in the Thrift

Savings Plan in accordance with section 8440e of title 5.

(c) RULE OF CONSTRUCTION REGARDING SEPARATION.—For purposes of subchapters III and VII of chapter 84 of title 5, each of

the following actions shall, in the case of a member participating

in the Thrift Savings Plan in accordance with section 8440e of such

title, be considered a separation from Government employment:

(1) Release of the member from active duty, not followed,

before the end of the 31-day period beginning on the day following the effective date of the release, by—

(A) a resumption of active duty; or

(B) an appointment to a position covered by chapter 83

or 84 of title 5 or an equivalent retirement system, as

identified by the Executive Director (appointed by the Federal Retirement Thrift Investment Board) in regulations.

(2) Transfer of the member to inactive status, or to a retired list pursuant to any provision of title 10.

(d) AGENCY CONTRIBUTIONS FOR RETENTION IN CRITICAL SPECIALTIES.—(1) The Secretary concerned may enter into an agreement with a member to make contributions to the Thrift Savings

Fund for the benefit of the member if the member—

(A) is in a specialty designated by the Secretary as critical

to meet requirements (whether such specialty is designated as

critical to meet wartime or peacetime requirements); and
§ 211 TITLE 37—CH. 3—BASIC PAY 72

(B) commits in such agreement to continue to serve on active duty in that specialty for a period of 6 years.

(2) Under any agreement entered into with a member under

paragraph (1), the Secretary shall make contributions to the Fund

for the benefit of the member for each pay period of the 6-year period of the agreement for which the member makes a contribution

to the Fund under section 8440e of title 5 (other than under subsection (d)(2) thereof). Paragraph (2) of section 8432(c) of title 5 applies to the Secretary’s obligation to make contributions under this

paragraph, except that the reference in such paragraph (2) to contributions under paragraph (1) of such section 8432(c) does not

apply.

(Added P.L. 106–65, §§ 661(a)(1)(A), 662, Oct. 5, 1999, 113 Stat. 670, 672.)
73

CHAPTER 5—SPECIAL AND INCENTIVE PAYS 1

Sec.

301. Incentive pay: hazardous duty.

301a. Incentive pay: aviation career.

301b. Special pay: aviation career officers extending period of active duty.

301c. Incentive pay: submarine duty.

301d. Multiyear retention bonus: medical officers of the armed forces.

301e. Multiyear retention bonus: dental officers of the armed forces.

302. Special pay: medical officers of the armed forces.

302a. Special pay: optometrists.

302b. Special pay: dental officers of the armed forces.

302c. Special pay: psychologists and nonphysician health care providers.

302d. Special pay: accession bonus for registered nurses.

302e. Special pay: nurse anesthetists.

302f. Special pay: reserve, recalled, or retained health care officers.

302g. Special pay: Selected Reserve health care professionals in critically short

wartime specialties.

302h. Special pay: accession bonus for dental officers.

302i. Special pay: pharmacy officers.

302j. Special pay: accession bonus for pharmacy officers.

303. Special pay: veterinarians.

303a. Special pay: health professionals; general provisions.

303b. Waiver of board certification requirements.

304. Special pay: diving duty.

305. Special pay: hardship duty pay.

305a. Special pay: career sea pay.

305b. Special pay: service as member of Weapons of Mass Destruction Civil Support Team.

306. Special pay: officers holding positions of unusual responsibility and of

critical nature.

306a. Special pay: members assigned to international military headquarters.

307. Special pay: special duty assignment pay for enlisted members.

307a. Special pay: assignment incentive pay.

308. Special pay: reenlistment bonus.

[308a. Repealed.]

308b. Special pay: reenlistment bonus for members of the Selected Reserve.

308c. Special pay: bonus for enlistment in the Selected Reserve.

308d. Special pay: enlisted members of the Selected Reserve assigned to certain

high priority units.

308e. Special pay: bonus for reserve affiliation agreement.

[308f. Repealed.]

308g. Special pay: bonus for enlistment in elements of the Ready Reserve other

than the Selected Reserve.

308h. Special pay: bonus for reenlistment, or voluntary extension of enlistment in

elements of the Ready Reserve other than the Selected Reserve.

308i. Special pay: prior service enlistment bonus.

309. Special pay: enlistment bonus.

310. Special pay: duty subject to hostile fire or imminent danger.

[311. Repealed.]

312. Special pay: nuclear-qualified officers extending period of active duty.

312a. Special pay: nuclear-trained and qualified enlistment members.

312b. Special pay: nuclear career accession bonus.

312c. Special pay: nuclear career annual incentive bonus.

[313. Repealed.]

314. Special pay or bonus: qualified members extending duty at designated locations overseas.

315. Special pay: engineering and scientific career continuation pay.

316. Special pay: foreign language proficiency pay.
§ 301 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 74

1Section 622 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999

(Public Law 105–261; 112 Stat. 2042; 37 U.S.C. 301 note) provides as follows:

SEC. 622. RETENTION INCENTIVES INITIATIVE FOR CRITICALLY SHORT MILITARY OCCUPATIONAL SPECIALTIES.

(a) REQUIREMENT FOR NEW INCENTIVES.—The Secretary of Defense shall establish and provide

for members of the Armed Forces qualified in critically short military occupational specialties

a series of new incentives that the Secretary considers potentially effective for increasing the

rates at which those members are retained in the Armed Forces for service in such specialties.

(b) CRITICALLY SHORT MILITARY OCCUPATIONAL SPECIALTIES.—For the purposes of this section, a military occupational specialty is a critically short military occupational specialty for an

Armed Force if the number of members retained in that Armed Force in fiscal year 1998 for

service in that specialty is less than 50 percent of the number of members of that Armed Force

that were projected to be retained in that Armed Force for service in the specialty by the Secretary of the military department concerned as of October 1, 1997.

(c) INCENTIVES.—It is the sense of Congress that, among the new incentives established and

provided under this section, the Secretary of Defense should include the following incentives:

(1) Family support and leave allowances.

(2) Increased special reenlistment or retention bonuses.

(3) Repayment of educational loans.

(4) Priority of selection for assignment to preferred permanent duty station or for extension at permanent duty station.

(5) Modified leave policies.

(6) Special consideration for Government housing or additional housing allowances.

(d) RELATIONSHIP TO OTHER INCENTIVES.—Incentives provided under this section are in addition to any special pay or other benefit that is authorized under any other provision of law.

(e) REPORTS.—(1) Not later than December 1, 1998, the Secretary of Defense shall submit to

the congressional defense committees a report that identifies, for each of the Armed Forces, the

critically short military occupational specialties to which incentives under this section are to

apply.

(2) Not later than April 15, 1999, the Secretary of Defense shall submit to the congressional

defense committees a report that specifies, for each of the Armed Forces, the incentives that

are to be provided under this section.

316a. Waiver of certification requirement.

317. Special pay: officers in critical acquisition positions extending period of

active duty.

318. Special pay: special warfare officers extending period of active duty.

319. Special pay: surface warfare officer continuation pay.

320. Incentive pay: career enlisted flyers.

321. Special pay: judge advocate continuation pay.

322. Special pay: 15-year career status bonus for members entering service on

or after August 1, 1986.

323. Special pay: retention incentives for members qualified in a critical military

skill.

324. Special pay: accession bonus for new officers in critical skills.

325. Incentive bonus: savings plan for education expenses and other contingencies.

326. Incentive bonus: conversion to military occupational specialty to ease personnel shortage.

§ 301. Incentive pay: hazardous duty 1

(a) Subject to regulations prescribed by the President, a member of a uniformed service who is entitled to basic pay is also entitled to incentive pay, in the amount set forth in subsection (b) or

(c), for the performance of hazardous duty required by orders. In

this section, the term, ‘‘hazardous duty’’ means duty—

(1) involving frequent and regular participation in aerial

flight as a crew members, as determined by the Secretary concerned, except for a member who is entitled to incentive pay

under section 301a of this title;

(2) involving frequent and regular participation in aerial

flight, not as a crew member under paragraph (1);

(3) involving parachute jumping as an essential part of

military duty;

(4) involving the demolition of explosives as a primary

duty, including training for that duty;
75 § 301 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(5) inside a high- or low-pressure chamber;

(6) as a human acceleration or deceleration experimental

subject;

(7) as a human test subject in thermal stress experiments;

(8) involving frequent and regular participation in flight

operations on the flight deck of an aircraft carrier or of a ship

other than an aircraft carrier from which aircraft are launched;

(9) involving frequent and regular exposure to highly toxic

pesticides or involving laboratory work that utilizes live dangerous viruses or bacteria;

(10) involving (A) the servicing of aircraft or missiles with

highly toxic fuels or propellants, (B) the testing of aircraft or

missile systems (or components of such systems) during which

highly toxic fuels or propellants are used, or (C) the handling

of chemical munitions (or components of such munitions);

(11) involving regular participation as a member of a team

conducting visit, board, search, and seizure operations aboard

vessels in support of maritime interdiction operations;

(12) involving use of ski-equipped aircraft on the ground in

Antarctica or on the Arctic ice-pack; or

(13) involving frequent and regular participation in aerial

flight by a member who is serving as an air weapons controller

crew member (as defined by the Secretary concerned) aboard

an airborne warning and control system aircraft (as designated

by such Secretary) and who is not entitled to incentive pay

under section 301a of this title.

(b) For the performance of the hazardous duty described in

paragraph (1) of subsection (a), a member is entitled to monthly incentive pay as follows:

Pay grade: Monthly Rate

O–10 ................................................................................................................. $150

O–9 ................................................................................................................... 150

O–8 ................................................................................................................... 150

O–7 ................................................................................................................... 150

O–6 ................................................................................................................... 250

O–5 ................................................................................................................... 250

O–4 ................................................................................................................... 225

O–3 ................................................................................................................... 175

O–2 ................................................................................................................... 150

O–1 ................................................................................................................... 150

W–5 .................................................................................................................. 250

W–4 .................................................................................................................. 250

W–3 .................................................................................................................. 175

W–2 .................................................................................................................. 150

W–1 .................................................................................................................. 150

E–9 ................................................................................................................... 240

E–8 ................................................................................................................... 240

E–7 ................................................................................................................... 240

E–6 ................................................................................................................... 215

E–5 ................................................................................................................... 190

E–4 ................................................................................................................... 165

E–3 ................................................................................................................... 150

E–2 ................................................................................................................... 150

E–1 ................................................................................................................... 150

(c)(1) For the performance of hazardous duty described in paragraphs (2) through (12) of subsection (a), a member is entitled to

$150 a month. However, a member performing hazardous duty described in paragraph (3) of that subsection who also performs as an
§ 301 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 76

essential part of such duty parachute jumping in military free fall

operations involving parachute deployment by the jumper without

the use of a static line is entitled to $225 a month.

(2)(A) For the performance of hazardous duty described in

paragraph (13) of subsection (a), a member is entitled to monthly

incentive pay based upon his years of service as an air weapons

controller as follows:

Pay grade

Years of service as an air weapons controller

2 or less Over 2 Over 3 Over 4 Over 6 Over 8 Over 10

O–7 and

above ... $200 $200 $200 $200 $200 $200 $200

O–6 .......... 225 250 300 325 350 350 350

O–5 .......... 200 250 300 325 350 350 350

O–4 .......... 175 225 275 300 350 350 350

O–3 .......... 150 156 188 206 350 350 350

O–2 .......... 150 156 188 206 250 300 300

O–1 .......... 150 156 188 206 250 250 250

W–4 ......... 200 225 275 300 325 325 325

W–3 ......... 175 225 275 300 325 325 325

W–2 ......... 150 200 250 275 325 325 325

W–1 ......... 150 150 150 175 325 325 325

E–9 .......... 200 225 250 275 300 300 300

E–8 .......... 200 225 250 275 300 300 300

E–7 .......... 175 200 225 250 275 275 275

E–6 .......... 156 175 200 225 250 250 250

E–5 .......... 150 156 175 188 200 200 200

E–4 and

below ... 150 156 175 188 200 200 200

Pay grade—

Continued

Years of service as an air weapons controller—Continued

Over 12 Over 14 Over 16 Over 18 Over 20 Over 22 Over 24 Over 25

O–7 and

above ... $200 $200 $200 $200 $200 $200 $200 $150

O–6 .......... 350 350 350 350 300 250 250 225

O–5 .......... 350 350 350 350 300 250 250 225

O–4 .......... 350 350 350 350 300 250 250 225

O–3 .......... 350 350 350 300 275 250 225 200

O–2 .......... 300 300 300 275 245 210 200 180

O–1 .......... 250 250 250 245 210 200 180 150

W–4 ......... 325 325 325 325 276 250 225 200

W–3 ......... 325 325 325 325 325 250 225 200

W–2 ......... 325 325 325 325 275 250 225 200

W–1 ......... 325 325 325 325 275 250 225 200

E–9 .......... 300 300 300 300 275 230 200 200

E–8 .......... 300 300 300 300 265 230 200 200

E–7 .......... 300 300 300 300 265 230 200 200

E–6 .......... 300 300 300 300 265 230 200 200

E–5 .......... 250 250 250 250 225 200 175 150

E–4 and

below ... 200 200 200 200 175 150 150 150

(B) For purposes of this paragraph, the years of service of a

member as an air weapons controller shall be computed, under regulations prescribed by the Secretary concerned, from the date the

member begins training leading to a designation as an air weapons

controller, but there shall be excluded from such computation any

period of more than 90 days during which the member performs

primary duties other than as an air weapons controller.

(d) In time of war, the President may suspend the payment of

incentive pay for any hazardous duty described in subsection (a).

(e) A member is entitled to not more than two payments of incentive pay, authorized by this section, for a period of time during

which he qualifies for more than one payment of that pay.
77 § 301a TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(f)(1) Under regulations prescribed by the President and to the

extent provided for by appropriations, when a member of a reserve

component of a uniformed service, or of the National Guard, who

is entitled to compensation under section 206 of this title, performs,

under orders, any duty described in subsection (a) for members entitled to basic pay, he is entitled to an increase in compensation

equal to 1⁄30 of the monthly incentive pay authorized by subsection

(b) or (c), as the case may be, for the performance of that hazardous

duty by a member of a corresponding grade who is entitled to basic

pay. He is entitled to the increase for as long as he is qualified for

it, for each regular period of instruction, or period of appropriate

duty, at which he is engaged for at least two hours, including that

performed on a Sunday or holiday, or for the performance of such

other equivalent training, instruction, duty or appropriate duties,

as the Secretary may prescribe under section 206(a) of this title.

This subsection does not apply to a member who is entitled to basic

pay under section 204 of this title for the entire month.

(2)(A) If in any calendar month a member performs duty as described in paragraph (1) and while entitled to basic pay also performs hazardous duty as described in the same paragraph of subsection (a) as constitutes the predicate for his entitlement under

paragraph (1), the earned units of measuring entitlement for incentive pay under this section shall be combined. If the sum of units

determined under the preceding sentence equals or exceeds the

minimum standard prescribed by the President for entitlement to

pay specified under subsections (b) and (c) for a member of corresponding grade who is entitled to basic pay for the entire relevant month, the member shall be entitled to an increase in compensation equal to 1⁄30 of the monthly incentive pay authorized by

subsection (b) or (c) for the performance of that hazardous duty by

a member of corresponding grade who is entitled to basic pay for

the entire month.

(B) A member who qualifies for entitlement under this paragraph is entitled to the increase for each day in the relevant month

in which he is entitled to basic pay pursuant to section 204 of this

title or to compensation under section 206 of this title.

(C) In this paragraph, the term ‘‘units’’ means the significant

increments of performance prescribed as qualifying standards in

regulations promulgated by the President pursuant to this section.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 461; amended P.L. 88–132, §§ 6–8, Oct. 2, 1963, 77 Stat.

215, 216; P.L. 89–149, §§ 1–3, Aug. 28, 1965, 79 Stat. 585; P.L. 89–278, Oct. 20, 1965, 79 Stat.

1011; P.L. 89–718, § 52, Nov. 2, 1966, 80 Stat. 1121; P.L. 92–436, § 605, Sept. 26, 1972, 86 Stat.

740; P.L. 93–294, § 2(1), (2), May 31, 1974, 88 Stat. 177; P.L. 96–343, § 2(a), Sept. 8, 1980, 94

Stat. 1123; P.L. 96–513, § 516(5), Dec. 12, 1980, 94 Stat. 2938; P.L. 96–579, § 3(a)–(c), Dec. 23,

1980, 94 Stat. 3360; P.L. 97–60, § 111(a)–(c), Oct. 14, 1981, 95 Stat. 992; P.L. 98–94, § 903(a),

Sept. 24, 1983, 97 Stat. 635; P.L. 98–525, § 624(a), Oct. 19, 1984, 98 Stat. 2542; P.L. 99–145,

§§ 635(a), 647(a), § 1303(b)(2), Nov. 8, 1985, 99 Stat. 647, 648, 655, 740; P.L. 99–661, § 1342(a),

Nov. 14, 1986, 100 Stat. 3991; P.L. 100–26, § 8(d)(1), (e)(2), Apr. 21, 1987, 101 Stat. 285, 286,

P.L. 102–25, § 702(b)(1) and (2), April 6, 1991, 105 Stat. 117; P.L. 102–190, § 614 and 1111(d),

Dec. 5, 1991, 105 Stat. 1377 and 1492; P.L. 104–106, § 615, Feb. 10, 1996, 110 Stat. 361; P.L.

105–85, § 614, Nov. 18, 1997, 111 Stat. 1786; P.L. 105–261, § 614(a), Oct. 16, 1998, 112 Stat.

2039; P.L. 107–107, § 615(a), (b), Dec. 28, 2001, 115 Stat. 1136; P.L. 108–136, § 615, Nov. 24,

2003, 117 Stat. 1502.)

§ 301a. Incentive pay: aviation career

(a)(1) Subject to regulations prescribed by the President, a

member of a uniformed service who is entitled to basic pay is also

entitled to aviation career incentive pay in the amount set forth in
§ 301a TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 78

subsection (b) for the frequent and regular performance of operational or proficiency flying duty required by orders.

(2) Aviation career incentive pay shall be restricted to regular

and reserve officers who hold, or are in training leading to, an

aeronautical rating or designation and who engage and remain in

aviation service on a career basis.

(3) Under regulations prescribed by the Secretary of Defense,

the Secretary of Homeland Security with respect to the Coast

Guard when it is not operating as a service in the Navy, or the Secretary of Commerce and the Secretary of Health and Human Services with respect to members under their respective jurisdiction, an

officer (except a flight surgeon or other medical officer) who is entitled to basic pay, holds an aeronautical rating or designation, and

is qualified for aviation service under regulations prescribed by the

Secretary concerned, is entitled to continuous monthly incentive

pay in the amount set forth in subsection (b) that is applicable to

him. A flight surgeon or other medical officer who is entitled to

basic pay, holds an aeronautical rating or designation, and is qualified for aviation service under regulations prescribed by the Secretary concerned, is not entitled to continuous monthly incentive

pay but is entitled to monthly incentive pay in the amounts set

forth in subsection (b) for the frequent and regular performance of

operational flying duty.

(4) To be entitled to continuous monthly incentive pay, an officer must perform the prescribed operational flying duties (including flight training but excluding proficiency flying) for 8 of the first

12, and 12 of the first 18 years of the aviation service of the officer.

However, if an officer performs the prescribed operational flying

duties (including flight training but excluding proficiency flying) for

at least 10 but less than 12 of the first 18 years of the aviation

service of the officer, the officer will be entitled to continuous

monthly incentive pay for the first 22 years of aviation service of

the officer. Entitlement to continuous monthly incentive pay ceases

for an officer (other than a warrant officer) upon completion of 25

years of aviation service, but such an officer in a pay grade below

pay grade O–7 remains entitled to monthly incentive pay under

subsection (b)(1) for the performance of operational flying duty.

(5) If upon completion of either 12 or 18 years of aviation service it is determined that an officer has failed to perform the minimum prescribed operational flying duty requirements during the

prescribed periods of time, his entitlement to continuous monthly

incentive pay ceases. For the needs of the service, the Secretary

concerned may permit, on a case by case basis, an officer to continue to receive continuous monthly incentive pay despite the failure of the officer to perform the prescribed operational flying duty

requirements during the prescribed periods of time so long as the

officer has performed those requirements for not less than 6 years

of aviation service. The Secretary concerned may not delegate the

authority in the preceding sentence to permit the payment of incentive pay under this subsection. If at the completion of 12 years of

aviation service entitlement to continuous monthly incentive pay

ceases, entitlement to that pay may again commence at the completion of 18 years of aviation service upon completion of the minimum operational flying duty requirements, such pay to continue
79 § 301a TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

for a period of time as prescribed in accordance with this section.

However, if entitlement to continuous monthly incentive pay ceases

in the case of any officer at the completion of either 12 or 18 years

of aviation service, such officer remains entitled to monthly incentive pay for the performance of subsequent operational or proficiency flying duties up to the maximum period of time prescribed

in accordance with this section.

(6) In this section:

(A) The term ‘‘aviation service’’ means service performed

by an officer (except a flight surgeon or other medical officer)

while holding an aeronautical rating or designation or while in

training to receive an aeronautical rating or designation.

(B) The term ‘‘operational flying duty’’ means flying performed under competent orders by rated or designated members while serving in assignments in which basic flying skills

normally are maintained in the performance of assigned duties

as determined by the Secretary concerned, and flying performed by members in training that leads to the award of an

aeronautical rating or designation.

(C) The term ‘‘proficiency flying duty’’ means flying performed under competent orders by rated or designated members while serving in assignments in which such skills would

normally not be maintained in the performance of assigned duties.

(D) The term ‘‘officer’’ includes an individual enlisted, and

designated, as an aviation cadet under section 6911 of title 10.

(b)(1) A member who satisfies the requirements described in

subsection (a) is entitled to monthly incentive pay as follows:

Years of aviation service (including Monthly

flight training) as an officer: rate

2 or less ........................................................................................................... $125

Over 2 .............................................................................................................. $156

Over 3 .............................................................................................................. $188

Over 4 .............................................................................................................. $206

Over 6 .............................................................................................................. $650

Over 14 ............................................................................................................ $840

Over 22 ............................................................................................................ $585

Over 23 ............................................................................................................ $495

Over 24 ............................................................................................................ $385

Over 25 ............................................................................................................ $250

(2) An officer in a pay grade above O–6 is entitled, until the

officer completes 25 years of aviation service, to be paid at the

rates set forth in the table in paragraph (1), except that—

(A) an officer in pay grade O–7 may not be paid at a rate

greater than $200 a month; and

(B) an officer in pay grade O–8 or above may not be paid

at a rate greater than $206 a month.

(3) For a warrant officer with over 22, 23, 24, or 25 years of

aviation service who is qualified under subsection (a), the rate prescribed in the table in paragraph (1) for officers with over 14 years

of aviation service shall continue to apply to the warrant officer.

(4) An officer serving as an air battle manager who is entitled

to aviation career incentive pay under this section and who, before

becoming entitled to aviation career incentive pay, was entitled to
§ 301b TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 80

incentive pay under section 301(a)(11) of this title, shall be paid the

monthly incentive pay at the higher of the following rates:

(A) The rate otherwise applicable to the member under

this subsection.

(B) The rate at which the member was receiving incentive

pay under section 301(c)(2)(A) of this title immediately before

the member’s entitlement to aviation career incentive pay

under this section.

(c) In time of war, the President may suspend the payment of

aviation career incentive pay.

(d) Under regulations prescribed by the President and to the

extent provided for by appropriations, when a member of a reserve

component of a uniformed service, or of the National Guard, who

is entitled to compensation under section 206 of this title, performs,

under orders, duty described in subsection (a) for members entitled

to basic pay, he is entitled to an increase in compensation equal to

1⁄30 of the monthly incentive pay authorized by subsection (b) for

the performance of that duty by a member with corresponding

years of aviation service who is entitled to basic pay. Such member

is entitled to the increase for as long as he is qualified for it, for

each regular period of instruction, or period of appropriate duty, at

which he is engaged for at least two hours, including that performed on a Sunday or holiday, or for the performance of such

other equivalent training, instruction, duty or appropriate duties,

as the Secretary may prescribe under section 206(a) of this title.

This subsection does not apply to a member who is entitled to basic

pay under section 204 of this title.

(f) The Secretary of Defense shall submit annually to Congress

a report specifying for the year covered by the report—

(1) the total number of officers who were determined under

subsection (a)(5) to have failed to perform the minimum prescribed operational flying duty requirements;

(2) the number of those officers who continued to receive

continuous monthly incentive pay despite their failure to perform the minimum prescribed operational flying duty requirements and the extent to which they failed to perform those requirements; and

(3) the reasons for the exercise of the authority under the

second sentence of subsection (a)(5) in the case of each officer

specified pursuant to paragraph (2).

(Added P.L. 93–294, § 2(3), May 31, 1974, 88 Stat. 177; amended P.L. 94–273, § 3(21), Apr. 21,

1976, 90 Stat. 377; P.L. 96–343, § 2(b), Sept. 8, 1980, 94 Stat. 1124; P.L. 96–513, Title V,

§ 516(6), Dec. 12, 1980, 94 Stat. 2938; P.L. 97–60, Title I, § 112(a), (b), Oct. 14, 1981, 95 Stat.

994, 995; P.L. 99–661, Div. A, Title VI, § 632(a), Nov. 14, 1986, 100 Stat. 3883; P.L. 100–26,

§ 8(e)(3), Apr. 21, 1987, 101 Stat. 286; P.L. 101–189, § 631, Nov. 29, 1989, 103 Stat. 1449; P.L.

101–510, § 1322(c)(1), Nov. 5, 1990, 104 Stat. 1672, P.L. 102–25, § 702(b)(1) and (2), April 6,

1991, 105 Stat. 117; P.L. 104–106, § 616, Feb. 10, 1996, 110 Stat. 362; P.L. 105–85, § 615(a),

(b), Nov. 18, 1997, 111 Stat. 1787 (repealed before effective date of amendments by section

615(d) of P.L. 105–261); P.L. 105–261, § 615(a)(1), (b), (c)(1), Oct. 16, 1998, 112 Stat. 2040, 2041;

P.L. 106–65, § 614(a), Oct. 5, 1999, 113 Stat. 651; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116

Stat. 2314.)

§ 301b. Special pay: aviation career officers extending period

of active duty

(a) BONUS AUTHORIZED.—An aviation officer described in subsection (b) who, during the period beginning on January 1, 1989,

and ending on December 31, 2004, executes a written agreement to
81 § 301b TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

remain on active duty in aviation service for at least one year may,

upon the acceptance of the agreement by the Secretary concerned,

be paid a retention bonus as provided in this section.

(b) COVERED OFFICERS.—An aviation officer referred to in subsection (a) is an officer of a uniformed service who—

(1) is entitled to aviation career incentive pay under section 301a of this title;

(2) is in a pay grade below pay grade 0–7;

(3) is qualified to perform operational flying duty; and

(4) has completed any active duty service commitment incurred for undergraduate aviator training or is within one year

of completing such commitment.

(c) AMOUNT OF BONUS.—The amount of a retention bonus paid under this section may not be more than $25,000 for each year covered by the written agreement to remain on active duty.

(d) PRORATION.—The term of an agreement under subsection

(a) and the amount of the bonus under subsection (c) may be prorated as long as such agreement does not extend beyond the date

on which the officer making such agreement would complete 25

years of aviation service.

(e) PAYMENT OF BONUS.—Upon the acceptance of a written

agreement under subsection (a) by the Secretary concerned, the

total amount payable pursuant to the agreement becomes fixed and

may be paid by the Secretary in either a lump sum or installments.

(f) ADDITIONAL PAY.—A retention bonus paid under this section

is in addition to any other pay and allowances to which an officer

is entitled.

(g) REPAYMENT OF BONUS.—(1) If an officer who has entered

into a written agreement under subsection (a) and has received all

or part of a retention bonus under this section fails to complete the

total period of active duty specified in the agreement, the Secretary

concerned may require the officer to repay the United States, on

a pro rata basis and to the extent that the Secretary determines

conditions and circumstances warrant, all sums paid under this

section.

(2) An obligation to repay the United States imposed under

paragraph (1) is for all purposes a debt owed to the United States.

(3) A discharge in bankruptcy under title 11 that is entered

less than 5 years after the termination of a written agreement entered into under subsection (a) does not discharge the officer signing the agreement from a debt arising under such agreement or

under paragraph (1).

(h) REGULATIONS.—The Secretaries concerned shall prescribe

regulations to carry out this section. Regulations prescribed by the

Secretary of a military department shall be subject to the approval

of the Secretary of Defense.

(i) REPORTS.—(1) Not later than February 15 of each year, the

Secretaries concerned shall submit to the Secretary of Defense a report analyzing the effect of the provision of retention bonuses to

aviation officers during the preceding fiscal year on the retention

of qualified aviators.

(2) Not later than March 15 of each year, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Rep-
§ 301c TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 82

resentatives copies of the reports submitted to the Secretary under

paragraph (1) with regard to the preceding fiscal year, together

with such comments and recommendations as the Secretary considers appropriate.

(j) DEFINITIONS.—In this section:

(1) The term ‘‘aviation service’’ means service performed by

an officer (except a flight surgeon or other medical officer)

while holding an aeronautical rating or designation or while in

training to receive an aeronautical rating or designation.

(2) The term ‘‘operational flying duty’’ has the meaning

given such term in section 301a(a)(6)(B) of this title.

(Added P.L. 96–342, § 806(a)(1), Sept. 8, 1980, 94 Stat. 1095; amended P.L. 97–60, § 113, Oct.

14, 1981, 95 Stat. 995; P.L. 98–94, § 904(a), Sept. 24, 1983, 97 Stat. 635; P.L. 98–525, § 622(a)(1),

(2), Oct. 19, 1984, 98 Stat. 2540; P.L. 99–145, § 636, Nov. 8, 1985, 99 Stat. 648; P.L. 99–661,

§ 631(a), Nov. 14, 1986, 100 Stat. 3883; P.L. 100–180, § 622(a); Dec. 4, 1987, 101 Stat. 1100; P.L.

101–189, § 632, Nov. 29, 1989, 103 Stat. 1451; P.L. 102–190, § 612(a)(1), Dec. 5, 1991, 105 Stat.

1376; P.L. 102–484, § 612(c), § 1054(a)(1), Oct. 23, 1992, 106 Stat. 2421, 2502; Nov. 30, 1993,

P.L. 103–160, § 613(a), 107 Stat. 1681; P.L. 103–337, § 613(a), Oct. 5, 1994, 108 Stat. 2783; P.L.

104–106, §§ 613(a), 1502(b), Feb. 10, 1996, 110 Stat. 359, 506; P.L. 104–201, § 613(a), Sept. 23,

1996, 110 Stat. 2544; P.L. 105–85, § § 613(a), 616(a)–(d), Nov. 18, 1997, 111 Stat. 1786, 1787;

P.L. 105–261, §§ 613(a), 615(a)(2), (c)(2), Oct. 16, 1998, 112 Stat. 2039, 2040, 2041; P.L. 106–

65, §§ 613(a), 615(a)–(f), 1067(2), Oct. 5, 1999, 113 Stat. 650, 651, 774; P.L. 106–398, § 1

(§§ 623(a), 1087(b)(1)), Oct. 30, 2000, 114 Stat. 1654A–151, 292; P.L. 107–107, §§ 614(a), 616(a),

Dec. 28, 2001, 115 Stat. 1136; P.L. 107–314, § 614(a), Dec. 2, 2002, 116 Stat. 2568; P.L. 108–

136, § 614(a), Nov. 24, 2003, 117 Stat. 1501.)

§ 301c. Incentive pay: submarine duty

(a) ELIGIBILITY REQUIREMENTS.—(1) Subject to regulations prescribed by the President, a member of the naval service who is entitled to basic pay, and (A) holds (or is in training leading to) a submarine duty designator, (B) is in and remains in the submarine

service on a career basis, and (C) meets the requirements of paragraph (3), is entitled to continuous monthly submarine duty incentive pay in the amount prescribed pursuant to subsection (b).

(2) Subject to regulations prescribed by the President, a member of the naval service who is entitled to basic pay but is not entitled to continuous monthly submarine duty incentive pay under

paragraph (1) is entitled to submarine duty incentive pay in the

amount prescribed pursuant to subsection (b) for any period during

which such member performs frequent and regular operational submarine duty (as defined in paragraph (5)) required by orders.

(3) To be entitled to continuous monthly submarine duty incentive pay through 26 years of service (as computed under section

205 of this title, but excluding, in the case of an officer, periods as

an enlisted member before initial appointment as an officer), a

member must perform operational submarine duties for at least 6

of the first 12, and at least 10 of the first 18 years of his submarine

service. However, if a member performs the prescribed operational

submarine duties for at least 8 but less than 10 of the first 18

years of his submarine service, he is entitled to continuous monthly

submarine duty incentive pay for the first 22 years of his service

(as computed under section 205 of this title, but excluding, in the

case of an officer, periods as an enlisted member before initial appointment as an officer).

(4) If upon completion of either 12 or 18 years of submarine

service it is determined that a member has failed to perform the

minimum prescribed operational submarine duty requirements

during the prescribed periods of time, his entitlement to continuous
83 § 301c TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

monthly submarine duty incentive pay ceases. If entitlement to

continuous monthly submarine duty incentive pay ceases upon

completion of 12 years of submarine service, entitlement to that

pay may again commence upon completion of 18 years of submarine service if the minimum operational submarine duty requirements have been met, and such pay shall continue for the period of time prescribed in accordance with this section. However, if

entitlement to continuous monthly submarine duty incentive pay

ceases in the case of any member at the completion of either 12 or

18 years of submarine service or 26 years of service (as computed

under section 205 of this title, but excluding, in the case of an officer, periods as an enlisted member before initial appointment as an

officer), such member shall be entitled to that pay in the amount

prescribed pursuant to subsection (b) for the performance of subsequent operational submarine duty, or for the performance of service

as a member of a submarine operational command staff, if such

member’s duties require serving on a submarine during underway

operations.

(5) In this section:

(A) The term ‘‘operational submarine duty’’ means duty—

(i) while attached under competent orders to a submarine, while serving as an operator or crew member of an

operational submersible (including an undersea exploration or research vehicle), while undergoing training preliminary to assignment to a nuclear-powered submarine,

while undergoing rehabilitation after assignment to a nuclear-powered submarine, or, in the case of a member

qualified in submarines, while attached as a member of a

submarine operational command staff whose duties require

serving on a submarine during underway operations—

(I) during one calendar month: 48 hours, except

that hours served underway in excess of 48 as a member of a submarine operational command staff during

any of the immediately preceding five calendar months

and not already used to qualify for incentive pay may

be applied to satisfy the underway time requirements

for the current month;

(II) during any two consecutive calendar months

when the requirements of subclause (I) of this clause

have not been met: 96 hours; or

(III) during any three consecutive calendar

months when the requirements of subclause (II) of this

clause have not been met: 144 hours;

(ii) while receiving instruction to prepare for assignment to a submarine of advanced design, or

(iii) while receiving instruction to prepare for a position of increased responsibility on a submarine.

(B) The term ‘‘submarine service’’ means the service performed, under regulations prescribed by the Secretary of the

Navy, by a member, and the years of submarine service are

computed beginning with the effective date of the initial order

to perform submarine service.
§ 301d TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 84

(b) MONTHLY RATES.—The Secretary of the Navy shall prescribe the monthly rates of submarine duty incentive pay, except

that the maximum monthly rate may not exceed $1,000.

(c) EXCEPTIONS.—(1) An officer who fails of selection for assignment as an executive officer or commanding officer of a submarine

or who declines to serve in either such position may not be paid

submarine duty incentive pay except for periods during which the

officer is serving on a submarine during underway operations.

(2) An enlisted member may not be paid continuous submarine

duty incentive pay while serving ashore between submarine sea

duty assignments unless the member has a sufficient period of enlistment (including any extension of an enlistment) remaining to be

reasssigned to submarine sea duty.

(d) APPLICABILITY TO CERTAIN NAVAL RESERVE DUTY.—Under

regulations prescribed by the President and to the extent provided

for by appropriations, when a member of the Naval Reserve who

is entitled to compensation under section 206 of this title, performs,

under orders, duty on a submarine during underway operations, he

is eligible for an increase in such compensation equal to one-thirtieth of the monthly incentive pay prescribed pursuant to subsection (b) for the performance of that duty by a member of a corresponding grade and years of service who is entitled to basic pay.

Such a member is eligible for the increase for each day served, for

as long as he is qualified for it, during each regular period of appropriate duty.

(Added P.L. 96–579, § 3(d), Dec. 23, 1980, 94 Stat. 3360; amended P.L. 97–39, § 701(a), (b), Aug.

14, 1981, 95 Stat. 942; P.L. 97–60, § 114, Oct. 14, 1981, 95 Stat. 995; P.L. 99–45, § 633(a), Nov.

8, 1985, 99 Stat. 646; P.L. 100–26, § 8(e)(4), Apr. 21, 1987, 101 Stat. 286; P.L. 100–80, § 623(a),

(b), Dec. 4, 1987, 101 Stat. 1101; P.L. 100–456, § 1233(l)(1), Sept. 29, 1988, 102 Stat. 2058; P.L.

100–224, § 5(a)(2), Dec. 30, 1987, 101 Stat. 1538; P.L. 101–510, § 1322(c)(1), Nov. 5, 1990, 104

Stat. 1672, P.L. 102–25, § 702(b)(1) and (2), April 6, 1991, 105 Stat. 117; P.L. 102–190,

§ 1111(d)(2), Dec. 5, 1991, 105 Stat. 1492; P.L. 107–107, § 617(a), (b), Dec. 28, 2001, 115 Stat.

1137.)

§ 301d. Multiyear retention bonus: medical officers of the

armed forces

(a) BONUS AUTHORIZED.—(1) A medical officer described in subsection (b) who executes a written agreement to remain on active

duty for two, three, or four years after completion of any other active-duty service commitment may, upon acceptance of the written

agreement by the Secretary of the military department concerned,

be paid a retention bonus as provided in this section.

(2) The amount of a retention bonus under paragraph (1) may

not exceed $50,000 for each year covered by a four-year agreement.

The maximum yearly retention bonus for two-year and three-year

agreements shall be reduced to reflect the shorter service commitment.

(b) ELIGIBLE OFFICERS.—This section applies to an officer of

the armed forces who—

(1) is an officer of the Medical Corps of the Army or the

Navy or an officer of the Air Force designated as a medical officer;

(2) is in a pay grade below pay grade 0–7;

(3) has at least eight years of creditable service (computed

as described in section 302(g) of this title) or has completed
85 § 301e TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

any active-duty service commitment incurred for medical education and training; and

(4) has completed initial residency training (or will complete such training before September 30 of the fiscal year in

which the officer enters into an agreement under subsection

(a)).

(c) REFUNDS.—(1) Refunds shall be required, on a pro rata

basis, of sums paid under this section if the officer who has received the payment fails to complete the total period of active duty

specified in the agreement, as conditions and circumstances warrant.

(2) An obligation to reimburse the United States imposed

under paragraph (1) is for all purposes a debt owed to the United

States.

(3) A discharge in bankruptcy under title 11, United States

Code, that is entered less than five years after the termination of

an agreement under this section does not discharge the member

signing such agreement from a debt arising under such agreement

or under paragraph (1). This paragraph applies to any case commenced under title 11 after November 5, 1990.

(Added P.L. 101–510 § 611, Nov. 5, 1990, 104 Stat. 1576; amended P.L. 102–484, § 1054(a)(2),

Oct. 23, 1992, 106 Stat. 2502; P.L. 107–314, § 615(a), Dec. 2, 2002, 116 Stat. 2568.)

§ 301e. Multiyear retention bonus: dental officers of the

armed forces

(a) BONUS AUTHORIZED.—(1) A dental officer described in subsection (b) who executes a written agreement to remain on active

duty for two, three, or four years after completion of any other active-duty service commitment may, upon acceptance of the written

agreement by the Secretary of the military department concerned,

be paid a retention bonus as provided in this section.

(2) The amount of a retention bonus under paragraph (1) may not exceed $50,000 for each year covered by a four-year agreement.

The maximum yearly retention bonus for two-year and three-year

agreements shall be reduced to reflect the shorter service commitment.

(b) OFFICERS AUTOMATICALLY ELIGIBLE.—Subsection (a) applies to an officer of the armed forces who—

(1) is an officer of the Dental Corps of the Army or the

Navy or an officer of the Air Force designated as a dental officer;

(2) has a dental specialty in oral and maxillofacial surgery;

(3) is in a pay grade below pay grade O–7;

(4) has at least eight years of creditable service (computed

as described in section 302b(g) of this title) or has completed

any active-duty service commitment incurred for dental education and training; and

(5) has completed initial residency training (or will complete such training before September 30 of the fiscal year in

which the officer enters into an agreement under subsection

(a)).

(c) EXTENSION OF BONUS TO OTHER DENTAL OFFICERS.—At the

discretion of the Secretary of the military department concerned,

the Secretary may enter into a written agreement described in sub-
§ 302 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 86

section (a)(1) with a dental officer who does not have the dental

specialty specified in subsection (b)(2), and pay a retention bonus

to such an officer as provided in this section, if the officer otherwise

satisfies the eligibility requirements specified in subsection (b). The

Secretaries shall exercise the authority provided in this section in

a manner consistent with regulations prescribed by the Secretary

of Defense.

(d) REFUNDS.—(1) Refunds shall be required, on a pro rata

basis, of sums paid under this section if the officer who has received the payment fails to complete the total period of active duty

specified in the agreement, as conditions and circumstances warrant.

(2) An obligation to reimburse the United States imposed

under paragraph (1) is for all purposes a debt owed to the United

States.

(3) A discharge in bankruptcy under title 11, United States

Code, that is entered less than five years after the termination of

an agreement under this section does not discharge the member

signing such agreement from a debt arising under such agreement

or under paragraph (1). This paragraph applies to any case commenced under title 11 after the date of the enactment of the National Defense Authorization Act for Fiscal Year 1998.

(Added P.L. 105–85, § 617(a), Nov. 18, 1997, 111 Stat. 1788; amended P.L. 107–314, § 615(b),

Dec. 2, 2002, 116 Stat. 2568.)

§ 302. Special pay: medical officers of the armed forces

(a) VARIABLE, ADDITIONAL, AND BOARD CERTIFICATION SPECIAL

PAY.—(1) An officer who is an officer of the Medical Corps of the

Army or the Navy or an officer of the Air Force designated as a

medical officer and who is on active duty under a call or order to

active duty for a period of not less than one year is entitled to special pay in accordance with this subsection.

(2) An officer described in paragraph (1) who is serving in a

pay grade below pay grade O–7 is entitled to variable special pay

at the following rates:

(A) $1,200 per year, if the officer is undergoing medical internship training.

(B) $5,000 per year, if the officer has less than six years

of creditable service and is not undergoing medical internship

training.

(C) $12,000 per year, if the officer has at least six but less

than eight years of creditable service.

(D) $11,500 per year, if the officer has at least eight but

less than ten years of creditable service.

(E) $11,000 per year, if the officer has at least ten but less

than twelve years of creditable service.

(F) $10,000 per year, if the officer has at least twelve but

less than fourteen years of creditable service.

(G) $9,000 per year, if the officer has at least fourteen but

less than eighteen years of creditable service.

(H) $8,000 per year, if the officer has at least eighteen but

less than twenty-two years of creditable service.

(I) $7,000 per year, if the officer has twenty-two or more

years of creditable service.
87 § 302 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(3) An officer described in paragraph (1) who is serving in a

pay grade above pay grade O–6 is entitled to variable special pay

at the rate of $7,000 per year.

(4) Subject to subsection (c) an officer entitled to variable special pay under paragraph (2) or (3) is entitled to additional special

pay of $15,000 for any twelve-month period during which the officer is not undergoing medical internship or initial residency training.

(5) An officer who is entitled to variable special pay under

paragraph (2) or (3) and who is board certified is entitled to additional special pay at the following rates:

(A) $2,500 per year, if the officer has less than ten years

of creditable service.

(B) $3,500 per year, if the officer has at least ten but less

than twelve years of creditable service.

(C) $4,000 per year, if the officer has at least twelve but

less than fourteen years of creditable service.

(D) $5,000 per year, if the officer has at least fourteen but

less than eighteen years of creditable service.

(E) $6,000 per year, if the officer has eighteen or more

years of creditable service.

(b) INCENTIVE SPECIAL PAY.—(1) Subject to subsection (c) and

paragraph (2) and under regulations prescribed under section

303a(a) of this title, an officer who is entitled to variable special

pay under subsection (a)(2) may be paid incentive special pay for

any twelve-month period during which the officer is not undergoing

medical internship or initial residency training. The amount of incentive special pay paid to an officer under this subsection may not

exceed $50,000 for any 12-month period.

(2) An officer is not eligible for incentive special pay under

paragraph (1) unless the Secretary concerned has determined that

such officer is qualified in the medical profession.

(c) ACTIVE-DUTY AGREEMENT.—(1) An officer may not be paid

additional special pay under subsection (a)(4) or incentive special

pay under subsection (b) for any twelve-month period unless the officer first executes a written agreement under which the officer

agrees to remain on active duty for a period of not less than one

year beginning on the date the officer accepts the award of such

special pay.

(2) Under regulations prescribed by the Secretary of Defense

under section 303a(a) of this title, the Secretary of the military department concerned may terminate at any time an officer’s entitlement to the special pay authorized by subsection (a)(4) or (b)(1). If

such entitlement is terminated, the officer concerned is entitled to

be paid such special pay only for the part of the period of active

duty that he served, and he may be required to refund any amount

in excess of that entitlement.

(d) REGULATIONS.—Regulations prescribed by the Secretary of

Defense under section 303a(a) of this title shall include standards

for determining—

(1) whether an officer is undergoing medical internship or

initial residency training for purposes of subsections (a)(2)(A),

(a)(2)(B), (a)(4), and (b)(1); and
§ 302 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 88

(2) whether an officer is board certified for purposes of

subsection (a)(5).

(e) FREQUENCY OF PAYMENTS.—Special pay payable to an officer under paragraphs (2), (3), and (5) of subsection (a) shall be paid

monthly. Special pay payable to an officer under subsection (a)(4)

or (b)(1) shall be paid annually at the beginning of the twelvemonth period for which the officer is entitled to such payment.

(f) REFUND FOR PERIOD OF UNSERVED OBLIGATED SERVICE.—

An officer who voluntarily terminates service on active duty before

the end of the period for which a payment was made to such officer

under subsection (a)(4) or (b)(1) shall refund to the United States

an amount which bears the same ratio to the amount paid to such

officer as the unserved part of such period bears to the total period

for which the payment was made.

(g) DETERMINATION OF CREDITABLE SERVICE.—For purposes of

this section, creditable service of an officer is computed by adding—

(1) all periods which the officer spent in medical internship

or residency training during which the officer was not on active

duty; and

(2) all periods of active service in the Medical Corps of the

Army or Navy, as an officer of the Air Force designated as a

medical officer, or as a medical officer of the Public Health

Service.

(h) RESERVE MEDICAL OFFICERS SPECIAL PAY.—(1) A reserve

medical officer described in paragraph (2) is entitled to special pay

at the rate of $450 a month for each month of active duty, including active duty in the form of annual training, active duty for training, and active duty for special work.

(2) A reserve medical officer referred to in paragraph (1) is a

reserve officer who—

(A) is an officer of the Medical Corps of the Army or the

Navy or an officer of the Air Force designated as a medical officer; and

(B) is on active duty under a call or order to active duty

for a period of less than one year.

(i) EFFECT OF DISCHARGE IN BANKRUPTCY.—A discharge in

bankruptcy under title 11 that is entered less than 5 years after

the termination of an agreement under this section does not discharge the person signing such agreement from a debt arising

under such agreement or under subsection (c)(2) or (f). This paragraph applies to any case commenced under title 11 after September 30, 1985.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 464; amended P.L. 88–2, § 5, Mar. 28, 1963, 77 Stat. 4;

P.L. 88–132, § 4, Oct. 2, 1963, 77 Stat. 212; P.L. 89–718, § 53, Nov. 2, 1966, 80 Stat. 1122; P.L.

90–40, § 5, June 30, 1967, 81 Stat. 105; P.L. 92–129, § 104, Sept. 28, 1971, 85 Stat. 355; P.L.

93–64, § 201, July 9, 1973, 87 Stat. 149; P.L. 93–274, § 1(1), May 6, 1974, 88 Stat. 94; P.L. 96–

284, § 2(a), June 28, 1980, 94 Stat. 587; P.L. 96–513, § 415, Dec. 12, 1980, 94 Stat. 2906; P.L.

99–145, § 640, Nov. 8, 1985, 99 Stat. 652; P.L. 99–661, §§ 1342(d), 1343(b)(1), Nov. 14, 1986, 100

Stat. 3991, 3995; P.L. 100–180, § 716(a), Dec. 4, 1987, 101 Stat. 1113; P.L. 101–189, § 702, Nov.

29, 1989, 103 Stat. 1468; P.L. 101–510, § 612, Nov. 5, 1990, 104 Stat. 1577; P.L. 106–398, § 1

(§ 625(a)), Oct. 30, 2000, 114 Stat. 1654A–153; P.L. 107–314, § 615(c), Dec. 2, 2002, 116 Stat.

2568.)
89 § 302b TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

§ 302a. Special pay: optometrists

(a) REGULAR SPECIAL PAY.—Each of the following officers is entitled to special pay at the rate of $100 a month for each month

of active duty:

(1) A commissioned officer—

(A) of the Regular Army, Regular Navy, or Regular Air

Force who is designated as an optometry officer; or

(B) who is an optometry officer of the Regular Corps

of the Public Health Service.

(2) A commissioned officer—

(A) of a Reserve component of the Army, Navy, or Air

Force who is designated as an optometry officer; or

(B) who is an optometry officer of the Reserve Corps

of the Public Health Service,

who is on active duty as a result of a call or order to active

duty for a period of at least one year.

(3) A general officer of the Army or the Air Force appointed, from any of the categories named in clause (1) or (2),

in the Army, Air Force, or the National Guard, as the case may

be.

(b) RETENTION SPECIAL PAY.—(1) Under regulations prescribed

under section 303a(a) of this title, the Secretary concerned may pay

an officer described in paragraph (2) a retention special pay of not

more than $15,000 for any twelve-month period during which the

officer is not undergoing an internship or initial residency training.

(2) An officer referred to in paragraph (1) is an officer of a uniformed service who—

(A) is entitled to special pay under subsection (a);

(B) has completed any initial active-duty service commitment incurred for education and training; and

(C) is determined by the Secretary concerned to be qualified as an optometrist.

(3) An officer may not be paid retention special pay under

paragraph (1) for any twelve-month period unless the officer first

executes a written agreement under which the officer agrees to remain on active duty for a period of not less than one year beginning on the date the officer accepts the award of such special pay.

(4) The Secretary concerned may terminate at any time the eligibility of an officer to receive retention special pay under paragraph (1). If such eligibility is terminated, the officer concerned

shall receive such special pay only for the part of the period of active duty that the officer served and may be required to refund any

amount in excess of that amount.

(Added P.L. 92–129, § 202(a), Sept. 28, 1971, 85 Stat. 357; amended P.L. 93–64, § 202, July 9,

1973, 87 Stat. 149; P.L. 95–114, § 2, Sept. 30, 1977, 91 Stat. 1046; P.L. 95–485, § 801(b), Oct.

20, 1978, 92 Stat. 1619; P.L. 96–284, § 4(a), June 28, 1980, 94 Stat. 591; P.L. 100–26, § 8(d)(2),

Apr. 21, 1987, 101 Stat. 285; P.L. 101–510, § 617, Nov. 5, 1990, 104 Stat. 1578; P.L. 104–201,

§ 614(a), Sept. 23, 1996, 110 Stat. 2544; P.L. 106–398, § 1 (§ 626(a)), Oct. 30, 2000, 114 Stat.

1654A–153; P.L. 107–314, § 615(d), Dec. 2, 2002, 116 Stat. 2568.)

§ 302b. Special pay: dental officers of the armed forces

(a) VARIABLE, ADDITIONAL, AND BOARD CERTIFICATION SPECIAL

PAY.—(1) An officer who—
§ 302b TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 90

(A) is an officer of the Dental Corps of the Army or the

Navy or an officer of the Air Force designated as a dental officer; and

(B) is on active duty under a call or order to active duty

for a period of not less than one year,

is entitled to special pay in accordance with this subsection.

(2) An officer described in paragraph (1) who is serving in a

pay grade below pay grade O–7 is entitled to variable special pay

at the following rates: (A) $3,000 per year, if the officer is undergoing dental internship training or has less than three years of creditable

service.

(B) $7,000 per year, if the officer has at least three but less

than six years of creditable service and is not undergoing dental internship training. (C) $7,000 per year, if the officer has at least six but less

than eight years of creditable service. (D) $12,000 per year, if the officer has at least eight but

less than 12 years of creditable service. (E) $10,000 per year, if the officer has at least 12 but less

than 14 years of creditable service.

(F) $9,000 per year, if the officer has at least 14 but less

than 18 years of creditable service.

(G) $8,000 per year, if the officer has 18 or more years of

creditable service.

(3) An officer described in paragraph (1) who is serving in a

pay grade above pay grade O–6 is entitled to variable special pay

at the rate of $7,000 per year.

(4) Subject to subsection (b), an officer entitled to variable special pay under paragraph (2) or (3) is entitled to additional special

pay for any 12-month period during which the officer is not undergoing dental internship or residency training. Such additional special pay shall be paid at the following rates: (A) $4,000 per year, if the officer has less than three years

of creditable service.

(B) $6,000 per year, if the officer has at least three but less

than 10 years of creditable service. (C) $15,000 per year, if the officer has 10 or more years

of creditable service.

(5) An officer who is entitled to variable special pay under

paragraph (2) or (3) and who is board certified is entitled to additional special pay at the following rates: (A) $2,500 per year, if the officer has less than 10 years

of creditable service.

(B) $3,500 per year, if the officer has at least 10 but less

than 12 years of creditable service. (C) $4,000 per year, if the officer has at least 12 but less

than 14 years of creditable service. (D) $5,000 per year, if the officer has at least 14 but less

than 18 years of creditable service. (E) $6,000 per year, if the officer has 18 or more years of

creditable service.

(b) ACTIVE-DUTY AGREEMENT.—(1) An officer may not be paid

additional special pay under subsection (a)(4) for any 12-month pe-
91 § 302b TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

riod unless the officer first executes a written agreement under

which the officer agrees to remain on active duty for a period of not

less than one year beginning on the date the officer accepts the

award of such special pay.

(2) Under regulations prescribed by the Secretary of Defense

under section 303a(a) of this title, the Secretary of the military department concerned may terminate at any time an officer’s entitlement to the special pay authorized by subsection (a)(4). If such entitlement is terminated, the officer concerned is entitled to be paid

such special pay only for the part of the period on active duty that

the officer served, and the officer may be required to refund any

amount in excess of that entitlement.

(c) REGULATIONS.—Regulations prescribed by the Secretary of

Defense under section 303a(a) of this title shall include standards

for determining—

(1) whether an officer is undergoing internship or residency training for purposes of subsections (a)(2)(A), (a)(2)(B),

and (a)(4); and

(2) whether an officer is board certified for purposes of

subsection (a)(5).

(d) FREQUENCY OF PAYMENTS.—Special pay payable to an officer under paragraphs (2), (3), and (5) of subsection (a) shall be paid

monthly. Special pay payable to an officer under subsection (a)(4)

shall be paid annually at the beginning of the 12-month period for

which the officer is entitled to such payment.

(e) REFUND FOR PERIOD OF UNSERVED OBLIGATED SERVICE.—

An officer who voluntarily terminates service on active duty before

the end of the period for which a payment was made to such officer

under subsection (a)(4) shall refund to the United States an

amount which bears the same ratio to the amount paid to such officer as the unserved part of such period bears to the total period

for which the payment was made.

(f) EFFECT OF DISCHARGE IN BANKRUPTCY.—A discharge in

bankruptcy under title 11 shall not release a person from an obligation to reimburse the United States required under the terms of

an agreement described in subsection (b) if the final decree of the

discharge in bankruptcy was issued within a period of five years

after the last day of a period which such person had agreed to

serve on active duty. This subsection applies to a discharge in

bankruptcy in any proceeding which begins after September 30,

1985.

(g) DETERMINATION OF CREDITABLE SERVICE.—For purposes of

this section, creditable service of an officer is computed by adding—

(1) all periods which the officer spent in dental internship

or residency training during which the officer was not on active

duty; and

(2) all periods of active service in the Dental Corps of the

Army or Navy, as an officer of the Air Force designated as a

dental officer, or as a dental officer of the Public Health Service.

(h) RESERVE DENTAL OFFICERS SPECIAL PAY.—(1) A reserve

dental officer described in paragraph (2) is entitled to special pay

at the rate of $350 a month for each month of active duty, includ-
§ 302c TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 92

ing active duty in the form of annual training, active duty for training, and active duty for special work.

(2) A reserve dental officer referred to in paragraph (1) is a reserve officer who—

(A) is an officer of the Dental Corps of the Army or the

Navy or an officer of the Air Force designated as a dental officer; and

(B) is on active duty under a call or order to active duty

for a period of less than one year.

(Added P.L. 93–274, § 1(2), May 6, 1974, 88 Stat. 94; amended P.L. 96–284, § 4(b), June 28,

1980, 94 Stat. 591; P.L. 99–145, § 639(a), Nov. 8, 1985, 99 Stat. 649, P.L. 102–25, § 702(b)(1)

and (2), April 6, 1991, 105 Stat. 117; P.L. 104–201, § 615(a), (b), (e), Sept. 23, 1996, 110 Stat.

2544, 2547; P.L. 105–85, § 618, Nov. 18, 1997, 111 Stat. 1789.)

§ 302c. Special pay: psychologists and nonphysician health

care providers

(a) PUBLIC HEALTH SERVICE CORPS.—A member who is—

(1) an officer in the Regular or Reserve Corps of the Public

Health Service and is designated as a psychologist; and

(2) has been awarded a diploma as a Diplomate in Psychology by the American Board of Professional Psychology,

is entitled to special pay, as provided in subsection (b).

(b) RATE OF SPECIAL PAY.—The rate of special pay to which an

officer is entitled pursuant to subsection (a) shall be— (1) $2,000 per year, if the officer has less than 10 years of

creditable service; (2) $2,500 per year, if the officer has at least 10 but less

than 12 years of creditable service; (3) $3,000 per year, if the officer has at least 12 but less

than 14 years of creditable service; (4) $4,000 per year, if the officer has at least 14 but less

than 18 years of creditable service; or (5) $5,000 per year, if the officer has 18 or more years of

creditable service.

(c) ARMY, NAVY, AND AIR FORCE PSYCHOLOGISTS.—The Secretary of Defense may provide special pay at the rates specified in

subsection (b) to an officer who—

(1) is an officer in the Medical Service Corps of the Army

or Navy or a biomedical sciences officer in the Air Force;

(2) is designated as a psychologist; and

(3) has been awarded a diploma as a Diplomate in Psychology by the American Board of Professional Psychology.

(d) NONPHYSICIAN HEALTH CARE PROVIDERS.—The Secretary

concerned may authorize the payment of special pay at the rates

specified in subsection (b) to an officer who—

(1) is an officer in the Medical Services Corps of the Army

or Navy, a biomedical sciences officer in the Air Force, an officer in the Army Medical Specialist Corps, an officer of the

Nurse Corps of the Army or Navy, an officer of the Air Force

designated as a nurse, an officer of the Coast Guard or Coast

Guard Reserve designated as a physician assistant, or an officer in the Regular or Reserve Corps of the Public Health Service;

(2) is a health care provider (other than a psychologist);

(3) has a postbaccalaureate degree; and
93 § 302d TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(4) is certified by a professional board in the officer’s specialty.

(Added P.L. 100–140, § 2(a), Oct. 26, 1987, 101 Stat. 830; amended P.L. 101–189, § 704, Nov.

29, 1989, 103 Stat. 1471; P.L. 101–510, § 618, Nov. 5, 1990, 104 Stat. 1579; P.L. 102–25,

§ 702(a)(2)(A), April 6, 1991, 105 Stat. 117; P.L. 102–484, § 611, Oct. 23, 1992, 106 Stat. 2421;

P.L. 104–106, § 617, Feb. 10, 1996, 110 Stat. 362; P.L. 104–201, § 614(b), Sept. 23, 1996, 110

Stat. 2544; P.L. 106–398, § 1 (§ 627), Oct. 30, 2000, 114 Stat. 1654A–153.)

§ 302d. Special pay: accession bonus for registered nurses

(a) ACCESSION BONUS AUTHORIZED.—(1) A person who is a registered nurse and who, during the period beginning on November

29, 1989, and ending on December 31, 2004, executes a written

agreement described in subsection (c) to accept a commission as an

officer and remain on active duty for a period of not less than four

years may, upon the acceptance of the agreement by the Secretary

concerned, be paid an accession bonus in an amount determined by

the Secretary concerned.

(2) The amount of an accession bonus under paragraph (1) may

not exceed $30,000.

(b) LIMITATION ON ELIGIBILITY FOR BONUS.—A person may not

be paid a bonus under subsection (a) if—

(1) the person, in exchange for an agreement to accept an

appointment as an officer, received financial assistance from

the Department of Defense to pursue a baccalaureate degree;

or

(2) the Secretary concerned determines that the person is

not qualified to become and remain licensed as a registered

nurse.

(c) AGREEMENT.—The agreement referred to in subsection (a)

shall provide that, consistent with the needs of the uniformed service concerned, the person executing the agreement will be assigned

to duty, for the period of obligated service covered by the agreement, as an officer of the Nurse Corps of the Army or Navy, an officer of the Air Force designated as a nurse, or an officer designated

as a nurse in the commissioned corps of the Public Health Service.

(d) REPAYMENT.—(1) An officer who receives a payment under

subsection (a) and who fails to become and remain licensed as a

registered nurse during the period for which the payment is made

shall refund to the United States an amount equal to the full

amount of such payment.

(2) An officer who voluntarily terminates service on active duty

before the end of the period agreed to be served under subsection

(a) shall refund to the United States an amount that bears the

same ratio to the amount paid to the officer as the unserved part

of such period bears to the total period agreed to be served.

(3) An obligation to reimburse the United States imposed

under paragraph (1) or (2) is for all purposes a debt owed to the

United States.

(4) A discharge in bankruptcy under title 11 that is entered

less than five years after the termination of an agreement under

this section does not discharge the person signing such agreement

from a debt arising under such agreement or this subsection. This

paragraph applies to any case commenced under title 11 after November 29, 1989.
§ 302e TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 94

(Added P.L. 101–189, § 705, Nov. 29, 1989, 103 Stat. 1471; amended P.L. 101–510, §§ 613(a),

1484(d)(2), Nov. 5, 1990, 104 Stat. 1577, 1716; P.L. 102–484, § 612(g), Oct. 23, 1992, 106 Stat.

2421; P.L. 103–160, § 611(b), Nov. 30, 1993, 107 Stat. 1679; P.L. 103–337, § 612(b), Oct. 5, 1994,

108 Stat. 2783; P.L. 104–106, § 612(b), Feb. 10, 1996, 110 Stat. 359; P.L. 104–201, § 612(b), Sept.

23, 1996, 110 Stat. 2543; P.L. 105–85, § 612(b), Nov. 18, 1997, 111 Stat. 1786; P.L. 105–261,

§ 612(b), Oct. 16, 1998, 112 Stat. 2039; P.L. 106–65, § 612(b), Oct. 5, 1999, 113 Stat. 650; P.L.

106–398, § 1 (§ 622(b)), Oct. 30, 2000, 114 Stat. 1654A–151; P.L. 107–107, § 612(b), Dec. 28, 2001,

115 Stat. 1135; P.L. 107–314, §§ 612(c), 615(e), Dec. 2, 2002, 116 Stat. 2567, 2568; P.L. 108–

136, § 612(c), Nov. 24, 2003, 117 Stat. 1501.)

§ 302e. Special pay: nurse anesthetists

(a) SPECIAL PAY AUTHORIZED.—(1) An officer described in subsection (b)(1) who, during the period beginning on November 29,

1989, and ending on December 31, 2004, executes a written agreement to remain on active duty for a period of one year or more

may, upon the acceptance of the agreement by the Secretary concerned, be paid incentive special pay in an amount not to exceed

$50,000 for any 12-month period.

(2) The Secretary concerned shall determine the amount of incentive special pay to be paid to an officer under paragraph (1). In

determining that amount, the Secretary concerned shall consider

the period of obligated service provided for in the agreement under

that paragraph.

(b) COVERED OFFICERS.—(1) An officer referred to in subsection

(a) is an officer of a uniformed service who—

(A) is an officer of the Nurse Corps of the Army or Navy,

an officer of the Air Force designated as a nurse, or an officer

designated as a nurse in the commissioned corps of the Public

Health Service;

(B) is a qualified certified registered nurse anesthetist; and

(C) is on active duty under a call or order to active duty

for a period of not less than one year.

(2) The Secretary of Defense may extend the special pay authorized under subsection (a) to officers of the armed forces who

serve in a nursing specialty (other than as nurse anesthetists)

that—

(A) is designated by the Secretary of the military department concerned as critical to meet requirements (whether such

specialty is designated as critical to meet wartime or peacetime

requirements); and

(B) requires postbaccalaureate education and training.

(c) TERMINATION OF AGREEMENT.—Under regulations prescribed by the Secretary of Defense, with respect to the Army,

Navy, and Air Force, and the Secretary of Health and Human

Services, with respect to the Public Health Service, the Secretary

concerned may terminate an agreement entered into under subsection (a). Upon termination of an agreement, the entitlement of

the officer to special pay under this section and the agreed upon

commitment to active duty of the officer shall end. The officer may

be required to refund that part of the special pay corresponding to

the unserved period of active duty.

(d) PAYMENT.—Special pay payable to an officer under subsection (a) shall be paid annually at the beginning of the 12-month

period for which the officer is to receive that payment.

(e) REPAYMENT.—(1) An officer who voluntarily terminates

service on active duty before the end of the period agreed to be

served under subsection (a) shall refund to the United States an
95 § 302f TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

amount that bears the same ratio to the amount paid to the officer

as the unserved part of such period bears to the total period agreed

to be served.

(2) An obligation to reimburse the United States imposed

under paragraph (1) is for all purposes a debt owed to the United

States.

(3) A discharge in bankruptcy under title 11 that is entered

less than five years after the termination of an agreement under

this section does not discharge the person signing such agreement

from a debt arising under such agreement or this subsection. This

paragraph applies to any case commenced under title 11 after November 29, 1989.

(Added P.L. 101–189, § 706, Nov. 29, 1989, 103 Stat. 1472; amended P.L. 101–510, §§ 613(b),

614, 618(c)(1), 1484(d)(3), Nov. 5, 1990, 104 Stat. 1577, 1579, 1716; P.L. 102–25, § 702(a)(2)(B)

and (b)(1), April 6, 1991, 105 Stat. 117; P.L. 102–484, § 612(i), Oct. 23, 1992, 106 Stat. 2421;

P.L. 103–160, § 611(c), Nov. 30, 1993, 107 Stat. 1679; P.L. 103–337, § 612(c), Oct. 5, 1994, 108

Stat. 2783; P.L. 104–106, § 612(c), Feb. 10, 1996, 110 Stat. 359; P.L. 104–201, § 612(c), Sept. 23,

1996, 110 Stat. 2543; P.L. 105–85, § 612(c), Nov. 18, 1997, 111 Stat. 1786; P.L. 105–261, § 612(c),

Oct. 16, 1998, 112 Stat. 2039; P.L. 106–65, § 612(c), Oct. 5, 1999, 113 Stat. 650; P.L. 106–398,

§ 1 (§§ 622(c), 626(b)), Oct. 30, 2000, 114 Stat. 1654A–151, 153; P.L. 107–107, § 612(c), Dec. 28,

2001, 115 Stat. 1135; P.L. 107–314, §§ 612(d), 615(f), Dec. 2, 2002, 116 Stat. 2567, 2569; P.L.

108–136, § 612(d), Nov. 24, 2003, 117 Stat. 1501.)

§ 302f. Special pay: reserve, recalled, or retained health care

officers

(a) ELIGIBLE FOR SPECIAL PAY.—A health care officer described

in subsection (b) shall be eligible for special pay under section 302,

302a, 302b, 302c, 302e, or 303 of this title (whichever applies) notwithstanding any requirement in those sections that—

(1) the call or order of the officer to active duty be for a

period of not less than one year; or

(2) the officer execute a written agreement to remain on

active duty for a period of not less than one year.

(b) HEALTH CARE OFFICERS DESCRIBED.—A health care officer

referred to in subsection (a) is an officer of the armed forces who

is otherwise eligible for special pay under section 302, 302a, 302b,

302c, 302e, or 303 of this title and who—

(1) is a reserve officer on active duty (other than for training) under a call or order to active duty for a period of more

than 30 days but less than one year;

(2) is involuntarily retained on active duty under section

12305 of title 10, or is recalled to active duty under section 688

of title 10 for a period of more than 30 days; or

(3) voluntarily agrees to remain on active duty for a period

of less than one year at a time when—

(A) officers are involuntarily retained on active duty

under section 12305 of title 10; or

(B) the Secretary of Defense determines (pursuant to

regulations prescribed by the Secretary) that special circumstances justify the payment of special pay under this

section.

(c) MONTHLY PAYMENTS.—Payment of special pay pursuant to

this section may be made on a monthly basis. The officer shall refund any amount received under this section in excess of the

amount that corresponds to the actual period of active duty served

by the officer.
§ 302g TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 96

(d) SPECIAL RULE FOR RESERVE MEDICAL AND DENTAL OFFICERS.—While a reserve medical or dental officer receives a special

pay under section 302 or 302b of this title by reason of subsection

(a), the officer shall not be entitled to special pay under section

302(h) or 302b(h) of this title.

(Added P.L. 102–190, § 634(a), Dec. 5, 1991, 105 Stat. 1381; amended P.L. 104–106,

§ 1501(d)(4)(A), Feb. 10, 1996, 110 Stat. 500; P.L. 106–398, § 1 (§ 625(b)), Oct. 30, 2000, 114 Stat.

1654A–153.)

§ 302g. Special pay: Selected Reserve health care professionals in critically short wartime specialties

(a) SPECIAL PAY AUTHORIZED.—An officer of a reserve component of the armed forces described in subsection (b) who executes

a written agreement under which the officer agrees to serve in the

Selected Reserve of an armed force for a period of not less than one

year nor more than three years, beginning on the date the officer

accepts the award of special pay under this section, may be paid

special pay at an annual rate not to exceed $10,000.

(b) ELIGIBLE OFFICERS.—An officer referred to in subsection (a)

is an officer in a health care profession who is qualified in a specialty designated by regulations as a critically short wartime specialty.

(c) TIME FOR PAYMENT.—Special pay under this section shall be

paid annually at the beginning of each twelve-month period for

which the officer has agreed to serve.

(d) REFUND REQUIREMENT.—An officer who voluntarily terminates service in the Selected Reserve of an armed force before the

end of the period for which a payment was made to such officer

under this section shall refund to the United States the full

amount of the payment made for the period on which the payment

was based.

(e) INAPPLICABILITY OF DISCHARGE IN BANKRUPTCY.—A discharge in bankruptcy under title 11 that is entered less than five

years after the termination of an agreement under this section does

not discharge the person receiving special pay under the agreement

from the debt arising under the agreement.

(f) TERMINATION OF AGREEMENT AUTHORITY.—No agreement

under this section may be entered into after December 31, 2004.

(Added P.L. 104–106, § 614(a)(1), Feb. 10, 1996, 110 Stat. 360; amended P.L. 104–201, § 611(a),

Sept. 23, 1996, 110 Stat. 2543; P.L. 105–85, § 611(a), Nov. 18, 1997, 111 Stat. 1785; P.L. 105–

261, § 611, Oct. 16, 1998, 112 Stat. 2038; P.L. 106–65, § 611(a), Oct. 5, 1999, 113 Stat. 649; P.L.

106–398, § 1 (§ 621(a)), Oct. 30, 2000, 114 Stat. 1654A–151; P.L. 107–107, § 611(a), Dec. 28, 2001,

115 Stat. 1135; P.L. 107–314, § 612(e), Dec. 2, 2002, 116 Stat. 2567; P.L. 108–136, § 612(e), Nov.

24, 2003, 117 Stat. 1501.)

§ 302h. Special pay: accession bonus for dental officers

(a) ACCESSION BONUS AUTHORIZED.—(1) A person who is a

graduate of an accredited dental school and who, during the period

beginning on September 23, 1996, and ending on December 31,

2004, executes a written agreement described in subsection (c) to

accept a commission as an officer of the armed forces and remain

on active duty for a period of not less than four years may, upon

the acceptance of the agreement by the Secretary concerned, be

paid an accession bonus in an amount determined by the Secretary

concerned.
97 § 302i TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(2) The amount of an accession bonus under paragraph (1) may

not exceed $30,000.

(b) LIMITATION ON ELIGIBILN ON ELIGIBILITY FOR BONUS.—A

person may not be paid a bonus under subsection (a) if—

(1) the person, in exchange for an agreement to accept an

appointment as an officer, received financial assistance from

the Department of Defense to pursue a course of study in dentistry; or

(2) the Secretary concerned determines that the person is

not qualified to become and remain certified and licensed as a

dentist.

(c) AGREEMENT.—The agreement referred to in subsection (a)

shall provide that, consistent with the needs of the armed service

concerned, the person executing the agreement will be assigned to

duty, for the period of obligated service covered by the agreement,

as an officer of the Dental Corps of the Army or the Navy or an

officer of the Air Force designated as a dental officer.

(d) REPAYMENT.—(1) An officer who receives a payment under

subsection (a) and who fails to become and remain certified or licensed as a dentist during the period for which the payment is

made shall refund to the United States an amount equal to the full

amount of such payment.

(2) An officer who voluntarily terminates service on active duty

before the end of the period agreed to be served under subsection

(a) shall refund to the United States an amount that bears the

same ratio to the amount paid to the officer as the unserved part

of such period bears to the total period agreed to be served.

(3) An obligation to reimburse the United States imposed

under paragraph (1) or (2) is for all purposes a debt owed to the

United States.

(4) A discharge in bankruptcy under title 11 that is entered

less than five years after the termination of an agreement under

this section does not discharge the person signing such agreement

from a debt arising under such agreement or this subsection. This

paragraph applies to any case commenced under title 11 after the

date of the enactment of this section.

(Added P.L. 104–201, § 615(c)(1), Sept. 23, 1996, 110 Stat. 2545; amended P.L. 107–107, § 618,

Dec. 28, 2001, 115 Stat. 1137; P.L. 107–314, § 612(f), Dec. 2, 2002, 116 Stat. 2568; P.L. 108–

136, § 612(f), Nov. 24, 2003, 117 Stat. 1501.)

§ 302i. Special pay: pharmacy officers

(a) ARMY, NAVY, AND AIR FORCE PHARMACY OFFICERS.—Under

regulations prescribed pursuant to section 303a of this title, the

Secretary of the military department concerned may, subject to

subsection (c), pay retention special pay under this section to an officer who—

(1) is a pharmacy officer in the Medical Service Corps of

the Army or Navy or the Biomedical Sciences Corps of the Air

Force; and

(2) is on active duty under a call or order to active duty

for a period of not less than one year.

(b) PUBLIC HEALTH SERVICE CORPS.—Subject to subsection (c),

the Secretary of Health and Human Services may pay retention

special pay under this section to an officer who—
§ 302j TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 98

(1) is an officer in the Regular or Reserve Corps of the

Public Health Service and is designated as a pharmacy officer;

and

(2) is on active duty under a call or order to active duty

for a period of not less than one year.

(c) LIMITATION ON ELIGIBILITY FOR SPECIAL PAY.—Special pay

may not be paid under this section to an officer serving in a pay

grade above pay grade O–6.

(d) LIMITATION ON AMOUNT OF SPECIAL PAY.—The amount of

retention special pay paid to an officer under this section may not

exceed $15,000 for any 12-month period.

(Added P.L. 106–398, § 1 (§ 628(a)), Oct. 30, 2000, 114 Stat. 1654A–154; amended P.L. 107–

314(g), § 615, Dec. 2, 2002, 116 Stat. 2569.)

§ 302j. Special pay: accession bonus for pharmacy officers

(a) ACCESSION BONUS AUTHORIZED.—A person who is a graduate of an accredited pharmacy school and who, during the period

beginning on the date of the enactment of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 and ending

on September 30, 2004, executes a written agreement described in

subsection (d) to accept a commission as an officer of a uniformed

service and remain on active duty for a period of not less than 4

years may, upon acceptance of the agreement by the Secretary concerned, be paid an accession bonus in an amount determined by the

Secretary concerned.

(b) LIMITATION ON AMOUNT OF BONUS.—The amount of an accession bonus under subsection (a) may not exceed $30,000.

(c) LIMITATION ON ELIGIBILITY FOR BONUS.—A person may not

be paid a bonus under subsection (a) if—

(1) the person, in exchange for an agreement to accept an

appointment as a warrant or commissioned officer, received financial assistance from the Department of Defense or the Department of Health and Human Services to pursue a course of

study in pharmacy; or

(2) the Secretary concerned determines that the person is

not qualified to become and remain licensed as a pharmacist.

(d) AGREEMENT.—The agreement referred to in subsection (a)

shall provide that, consistent with the needs of the uniformed service concerned, the person executing the agreement shall be assigned to duty, for the period of obligated service covered by the

agreement, as a pharmacy officer in the Medical Service Corps of

the Army or Navy, a biomedical sciences officer in the Air Force

designated as a pharmacy officer, or a pharmacy officer of the Public Health Service.

(e) REPAYMENT.—(1) An officer who receives a payment under

subsection (a) and who fails to become and remain licensed as a

pharmacist during the period for which the payment is made shall

refund to the United States an amount equal to the full amount

of such payment.

(2) An officer who voluntarily terminates service on active duty

before the end of the period agreed to be served under subsection

(a) shall refund to the United States an amount that bears the

same ratio to the amount paid to the officer as the unserved part

of such period bears to the total period agreed to be served.
99 § 303 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(3) An obligation to reimburse the United States under paragraph (1) or (2) is for all purposes a debt owed to the United

States.

(4) A discharge in bankruptcy under title 11 that is entered

less than 5 years after the termination of an agreement under this

section does not discharge the person signing such agreement from

a debt arising under such agreement or this subsection. This paragraph applies to any case commenced under title 11 after the date

of the enactment of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001.

(Added P.L. 106–398, § 1 (§ 628(a)), Oct. 30, 2000, 114 Stat. 1654A–154; amended P.L. 107–314,

§ 1062(c)(1), Dec. 2, 2002, 116 Stat. 2650.)

§ 303. Special pay: veterinarians

(a) MONTHY SPECIAL PAY.—Each of the following officers is en- titled to special pay at the rate of $100 a month for each month

of active duty:

(1) A commissioned officer—

(A) of the Regular Army who is in the Veterinary

Corps;

(B) of the Regular Air Force who is an officer in the

Biomedical Sciences Corps and holds a degree in veterinary medicine; or

(C) who is a veterinary officer of the Regular Corps of

the Public Health Service.

(2) A commissioned officer—

(A) of a reserve component of the Army who is in the

Veterinary Corps of the Army;

(B) of a reserve component of the Air Force, of the

Army or the Air Force without specification of component,

or of the National Guard, who—

(i) is designated as a veterinary officer; or

(ii) is an officer in the Biomedical Sciences Corps

of the Air Force and holds a degree in veterinary medicine; or

(C) who is a veterinary officer of the Reserve Corps of

the Public Health Service,

who is on active duty as a result of a call or order to active

duty for a period of at least one year.

(3) A general officer of the Army or the Air Force appointed, from any of the categories named in clause (1) or (2),

in the Army, the Air Force, or the National Guard, as the case

may be.

(b) ADDITIONAL SPECIAL PAY FOR BOARD CERTIFICATION.—A

commissioned officer entitled to special pay under subsection (a)

who has been certified as a Diplomate in a specialty recognized by

the American Veterinarian Medical Association is entitled to special pay (in addition to the special pay under subsection (a)) at the

same rate as is provided under section 302c(b) of this title for an

officer referred to in that section who has the same number of

years of creditable service as the commissioned officer.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 465; amended P.L. 88–2, § 5, Mar. 28, 1963, 77 Stat. 4;

P.L. 90–40, § 5, June 30, 1967, 81 Stat. 105; P.L. 92–129, § 104, Sept. 28, 1971, 85 Stat. 355;

P.L. 93–64, § 203, July 9, 1973, 87 Stat. 149; P.L. 95–114, § 3, Sept. 30, 1977, 91 Stat. 1046;

P.L. 95–485, § 801(b), Oct. 20, 1978, 92 Stat. 1619; P.L. 96–284, § 4(c), June 28, 1980, 94 Stat.
§ 303a TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 100

591; P.L. 100–26, § 8(d)(3), Apr. 21, 1987, 101 Stat. 285; P.L. 100–180, § 1232, Dec. 4, 1987, 101

Stat. 1161, P.L. 102–25, § 702(b)(2), April 6, 1991, 105 Stat. 117; P.L. 106–65, § 616(a), Oct. 5,

1999, 113 Stat. 652; P.L. 106–398, § 1 (§ 629), Oct. 30, 2000, 114 Stat. 1654A–155.)

§ 303a. Special pay: health professionals; general provisions

(a) The Secretary of Defense, with respect to the Army, Navy,

and Air Force, and the Secretary of Health and Human Services,

with respect to the Public Health Service, shall prescribe regulations for the administration of sections 301d, 302 through 302j, and

303 of this title.

(b)(1) Except as provided in paragraph (2) or as otherwise provided under a provision of this chapter, a commissioned officer in

the Regular or Reserve Corps of the Public Health Service is entitled to special pay under a provision of this chapter in the same

amounts, and under the same terms and conditions, as a commissioned officer of the armed forces is entitled to special pay under

that provision.

(2) A commissioned medical officer in the Regular or Reserve

Corps of the Public Health Service (other than an officer serving

in the Indian Health Service) may not receive additional special

pay under section 302(a)(4) of this title for any period during which

the officer is providing obligated service under the following provisions of law:

(A) Section 338B of the Public Health Service Act (42

U.S.C. 254l–1).

(B) Section 225(e) of the Public Health Service Act, as that

section was in effect before October 1, 1977.

(C) Section 752 of the Public Health Service Act, as that

section was in effect between October 1, 1977, and August 13,

1981.

(c) Special pay authorized under sections 301d, 302 through

302j, and 303 of this title is in addition to any other pay or allowance to which an officer is entitled. The amount of special pay to

which an officer is entitled under any of such sections may not be

included in computing the amount of any increase in pay authorized by any other provision of this title or in computing retired pay,

separation pay, severance pay, or readjustment pay.

(d) The Secretary of Defense shall conduct a review every two

years of the special pay for health professionals authorized by sections 301d, 302 through 302j, and 303 of this title.

(Added P.L. 96–284, § 5(a), June 28, 1980, 94 Stat. 592; amended P.L. 96–513, § 506(6), Dec. 12,

1980, 94 Stat. 2919; P.L. 100–140, § 2(b)(1), Oct. 26, 1987, 101 Stat. 831; P.L. 101–189, §§ 705(b),

706(b), Nov. 29, 1989, 103 Stat. 1472, 1473; P.L. 101–510, §§ 611(d), 1484(c), 1322(c)(2), Nov.

5, 1990, 104 Stat. 1577, 1672, 1716; P.L. 102–484, § 1054(a)(3), Oct. 23, 1992, 106 Stat. 2502;

P.L. 104–106, § 614(b), Feb. 10, 1996, 110 Stat. 361; P.L. 104–201, § 615(c)(3), Sept. 23, 1996,

110 Stat. 2546; P.L. 106–398, § 1 (§§ 628(b), 634), Oct. 30, 2000, 114 Stat. 1654A–155, 159.)

§ 303b. Waiver of board certification requirements

(a) CERTIFICATION INTERRUPTED BY CONTINGENCY OPERATION.—A member of the armed forces described in subsection (b)

who completes the board certification or recertification requirements specified in section 302(a)(5), 302b(a)(5), 302c(c)(3), or

302c(d)(4) of this title before the end of the period established for

the member in subsection (c) shall be paid special pay under the

applicable section for active duty performed during the period beginning on the date on which the member was assigned to duty in
101 § 304 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

support of a contingency operation and ending on the date of that

certification or recertification if the Secretary of Defense determines that the member was unable to schedule or complete that

certification or recertification earlier because of that duty.

(b) ELIGIBLE MEMBERS DESCRIBED.—A member of the armed

forces referred to in subsection (a) is a member who—

(1) is a medical or dental officer or a nonphysician health

care provider;

(2) has completed any required residency training; and

(3) was, except for the board certification requirement, otherwise eligible for special pay under section 302(a)(5),

302b(a)(5), 302c(c)(3), or 302c(d)(4) of this title during a duty

assignment in support of a contingency operation.

(c) PERIOD FOR CERTIFICATION.—The period referred to in subsection (a) for completion of board certification or recertification requirements with respect to a member of the armed forces is the

180-day period (extended for such additional time as the Secretary

of Defense determines to be appropriate) beginning on the date on

which the member is released from the duty to which the member

was assigned in support of a contingency operation.

(Added P.L. 102–190, § 635(a), Dec. 5, 1991, 105 Stat. 1382.)

§ 304. Special pay: diving duty

(a) Under regulations prescribed by the Secretary concerned, a

member of a uniformed service who is entitled to basic pay is entitled to special pay, in the amount set forth in subsection (b), for

periods during which the member—

(1) is assigned by orders to the duty of diving;

(2) is required to maintain proficiency as a diver by frequent and regular dives; and

(3) either—

(A) actually performs diving duty while serving in an

assignment for which diving is a primary duty; or

(B) meets the requirements to maintain proficiency as

described in paragraph (2) while serving in an assignment

that includes diving duty other than as a primary duty.

(b) Special pay payable under subsection (a) shall be paid at

a rate of not more than $240 a month, in the case of an officer, and

at a rate of not more than $340 a month, in the case of an enlisted

member.

(c) If, in addition to diving duty, a member is assigned by orders to one or more hazardous duties described in section 301 of

this title, the member may be paid, for the same period of service,

special pay under this section and incentive pay under such section

301 for each hazardous duty for which the member is qualified.

(d)(1) Under regulations prescribed by the Secretary concerned

and to the extent provided for by appropriations, when a member

of the National Guard or a reserve component of a uniformed service who is entitled to compensation under section 206 of this title

performs diving duty, pursuant to orders, such member is entitled

to an increase in compensation equal to 1⁄30 of the monthly special

pay prescribed by the Secretary concerned for the performance of

diving duty by a member of comparable diving classification who
§ 305 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 102

is entitled to basic pay under section 204 of this title. Such member

is entitled to the increase—

(A) for each regular period of instruction, or period of appropriate duty, at which the member is engaged for at least

two hours, including that performed on a Sunday or holiday;

or

(B) for the performance of such other equivalent training,

instruction, duty, or appropriate duties, as the Secretary may

prescribe under section 206(a) of this title.

(2) This subsection does not apply to a member who is entitled

to basic pay under section 204 of this title.

(e) In time of war, the President may suspend the payment of

diving duty pay.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 465; amended P.L. 97–60, § 115, Oct. 14, 1981, 95 Stat.

995; P.L. 100–180, § 624(a), Dec. 4, 1987, 101 Stat. 1103, P.L. 102–25, § 702(b)(1), April 6, 1991,

105 Stat. 117; P.L. 105–261, § 616(a), Oct. 16, 1998, 112 Stat. 2041; P.L. 106–65, § 617, Oct. 5,

1999, 113 Stat. 652.)

§ 305. Special pay: hardship duty pay

(a) SPECIAL PAY AUTHORIZED.—A member of a uniformed service who is entitled to basic pay may be paid special pay under this

section at a monthly rate not to exceed $300 while the member is

performing duty in the United States or outside the United States

that is designated by the Secretary of Defense as hardship duty.

(b) REGULATIONS.—The Secretary of Defense shall prescribe

regulations for the provision of hardship duty pay under subsection

(a), including the specific monthly rates at which the special pay

will be available.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 465; amended P.L. 88–132, § 12(a), Oct. 2, 1963, 77 Stat.

217; P.L. 90–623; § 3(4), Oct. 22, 1968, 82 Stat. 1314; P.L. 95–485, § 804(b)(1), Oct. 20, 1978,

92 Stat. 1620, P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 105–85, § 619(a)–(c)(1),

Nov. 18, 1997, 111 Stat. 1789, 1790; P.L. 105–261, § 617(a), (c)(1), Oct. 16, 1998, 112 Stat. 2041.)

§ 305a. Special pay: career sea pay

(a) AVAILABILITY OF SPECIAL PAY.—A member of a uniformed

service who is entitled to basic pay is also entitled, while on sea

duty, to special pay at the applicable rate under subsection (b).

(b) RATES; MAXIMUM.—The Secretary concerned shall prescribe

the monthly rates for special pay applicable to members of each

armed force under the Secretary’s jurisdiction. No monthly rate

may exceed $750.

(c) PREMIUM.—A member of a uniformed service entitled to career sea pay under this section who has served 36 consecutive

months of sea duty is also entitled to a career sea pay premium for

the thirty-seventh consecutive month and each subsequent consecutive month of sea duty served by such member. The monthly

amount of the premium shall be prescribed by the Secretary concerned, but may not exceed $350.

(d) REGULATIONS.—The Secretary concerned shall prescribe

regulations for the administration of this section for the armed

force or armed forces under the jurisdiction of the Secretary. The

entitlements under this section shall be subject to the regulations.

(e) DEFINITION OF SEA DUTY.—(1) In this section, the term ‘‘sea

duty’’ means duty performed by a member—
103 § 305a TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(A) while permanently or temporarily assigned to a ship

and—

(i) while serving on a ship the primary mission of

which is accomplished while under way;

(ii) while serving as a member of the off-crew of a twocrewed submarine; or

(iii) while serving as a member of a tender-class ship

(with the hull classification of submarine or destroyer); or

(B) while permanently or temporarily assigned to a ship

and while serving on a ship the primary mission of which is

normally accomplished while in port, but only during a period

that the ship is away from its homeport.

(2) The Secretary concerned may designate duty performed by

a member while serving on a ship the primary mission of which is

accomplished either while under way or in port as ‘‘sea duty’’ for

purposes of this section, even though the duty is performed while

the member is permanently or temporarily assigned to a ship-based

staff or other unit not covered by paragraph (1).

(3) For the purpose of determining the years of sea duty with

which a member may be credited for purposes of this section, the

term ‘‘sea duty’’ also includes duty performed after December 31,

1988, by a member while permanently or temporarily assigned to

a ship or ship-based staff and while serving on a ship on which the

member would be entitled, during a period that the ship is away

from its homeport, to receive sea pay by reason of paragraph (1)(B).

(4) A ship shall be considered to be away from its homeport for

purposes of this subsection when it is—

(A) at sea; or

(B) in a port that is more than 50 miles from its homeport.

(Added P.L. 95–485, § 804(a)(1), Oct. 20, 1978, 92 Stat. 1620; amended P.L. 96–343, § 3(a), Sept.

8, 1980, 94 Stat. 1124; P.L. 96–579, § 4(a), Dec. 23, 1980, 94 Stat. 3364; P.L. 97–60, § 116, Oct.

14, 1981, 95 Stat. 996; P.L. 97–295, § 3(1), Oct. 12, 1982, 96 Stat. 1303; P.L. 98–525, § 623(a),

Oct. 19, 1984, 98 Stat. 2541; P.L. 99–145, § 634(a), Nov. 8, 1985, 99 Stat. 647; P.L. 100–26,

§ 8(e)(5), Apr. 21, 1987, 101 Stat. 286; P.L. 100–180; § 621(a)–(c), Dec. 4, 1987, 101 Stat. 1097,

1099; P.L. 100–224, § 5(a)(1), Dec. 30, 1987, 101 Stat. 1538; P.L. 100–456, § 1233(b)(1), Sept. 29,

1988, 102 Stat. 2057; P.L. 101–189, § 653(b), Nov. 29, 1989, 103 Stat. 1462, P.L. 102–25,

§ 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 102–190, § 1111(d)(2), Dec. 5, 1991, 105 Stat. 1492;

P.L. 104–106, § 618, Feb. 10, 1996, 110 Stat. 362; P.L. 105–85, § 620, Nov. 18, 1997, 111 Stat.

1790; P.L. 106–398, § 1 (§ 630(a), (b)), Oct. 30, 2000, 114 Stat. 1654A–156.)

§ 305b. Special pay: service as member of Weapons of Mass

Destruction Civil Support Team

(a) SPECIAL PAY AUTHORIZED.—The Secretary of a military department may pay special pay under this subsection to members of

an armed force under the jurisdiction of the Secretary who are entitled to basic pay under section 204 and are assigned by orders to

duty as members of a Weapons of Mass Destruction Civil Support

Team if the Secretary determines that the payment of such special

pay is needed to address recruitment or retention concerns in that

armed force.

(b) MONTHLY RATE.—The monthly rate of special pay under subsection (a) may not exceed $150.

(c) INCLUSION OF RESERVE COMPONENT MEMBERS PERFORMING

INACTIVE DUTY TRAINING.—(1) To the extent funds are made available to carry out this subsection, the Secretary of a military department may pay the special pay under subsection (a) to members of
§ 306 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 104

a reserve component of the armed forces who are entitled to compensation under section 206 of this title and who perform duty

under orders as members of a Weapons of Mass Destruction Civil

Support Team.

(2) The amount of the special pay for a member referred to in

paragraph (1) shall be equal to 1⁄30 of the monthly special pay rate

in effect under subsection (b) for each day on which the member

performs duty under orders as members of a Weapons of Mass Destruction Civil Support Team.

(d) REGULATIONS.—Special pay under this section shall be provided in accordance with regulations prescribed by the Secretary of

Defense.

(e) DEFINITION.—In this section, the term ‘Weapons of Mass

Destruction Civil Support Team’ means a team of members of the

reserve components of the armed forces that is established under

section 12310(c) of title 10 in support of emergency preparedness

programs to prepare for or to respond to any emergency involving

the use of a weapon of mass destruction.

(Added P.L. 108–136, § 624(a), Nov. 24, 2003, 117 Stat. 1505.)

§ 306. Special pay: officers holding positions of unusual responsibility and of critical nature

(a)(1) The Secretary concerned may designate positions of unusual responsibility which are of a critical nature to an armed force

under his jurisdiction and may pay special pay, in addition to other

pay prescribed by law, to an officer of an armed force described in

paragraph (2) who is performing the duties of such a position, at

the following monthy rates:

Pay Grade Monthly Rate

O–6 ....................................................................................................... $150

O–5 ....................................................................................................... 100

O–4 and below ..................................................................................... 50

(2) An officer of the armed forces referred to in paragraph (1)

is an officer who is entitled to the basic pay under section 204 of

this title, or the compensation under section 206 of this title, of pay

grade O–6 or below.

(b) If an officer entitled to compensation under section 206 of

this title is paid special pay under subsection (a) for the performance of duties in a position designated under such subsection, the

special pay shall be paid at the rate of 1⁄30 of the monthly rate authorized by such subsection for each day of the performance of duties in the designated position.

(c) The Secretary concerned shall prescribe the criteria and circumstances under which officers of an armed force under his jurisdiction are eligible for special pay under this section and, when he

considers it necessary, may abolish that special pay.

(d)(1) Not more than 5 percent of the number of officers on active duty (other than for training or mobilization in support of a

contingency operation) in an armed force in each of the pay grades

O–3 and below, and not more than 10 percent of the number of offi-
105 § 307 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

cers on active duty in an armed force in pay grade O–4, O–5, or

O–6, may be paid special pay under this section.

(2) Of the number of officers in the Selected Reserve of the

Ready Reserve of an armed force who are not on active duty (other

than for training or mobilization in support of a contingency operation), not more than 5 percent of the number of such officers in

each of the pay grades O–3 and below, and not more than 10 percent of the number of such officers in pay grade O–4, O–5, or O–

6, may be paid special pay under subsection (b).

(e) This section shall be administered under regulations prescribed by the Secretary of Defense for the armed forces under his

jurisdiction, and by the Secretary of Homeland Security for the

Coast Guard when the Coast Guard is not operating as a service

in the Navy.

(f) This section does not apply to a person who is entitled to

special pay under section 302, 302a, 302b, or 303 of this title.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 466; amended P.L. 90–623, § 3(1), Oct. 22, 1968, 82 Stat.

1314; P.L. 96–284, § 6, June 28, 1980, 94 Stat. 593; P.L. 96–470, § 202(b), Oct. 19, 1980, 94 Stat.

2242; P.L. 97–322, § 116, Oct. 15, 1982, 96 Stat. 1586; P.L. 101–510, § 1322(c)(3), Nov. 5, 1990,

104 Stat. 1672; P.L. 102–587, § 5205, Nov. 4, 1992, 106 Stat. 5074; P.L. 107–296, § 1704(c), Nov.

25, 2002, 116 Stat. 2314; P.L. 108–136, § 616, Nov. 24, 2003, 117 Stat. 1502.)

§ 306a. Special pay: members assigned to international military headquarters

Not more than nine members of the armed forces, including

members detailed to international military headquarters, may be

paid pay and allowances at rates referred to in section 625(d) of the

Foreign Assistance Act of 1961 (22 U.S.C. 2385(d)).

(Added P.L. 98–525, § 1402(b)(1), Oct. 19, 1984, 98 Stat. 2621.)

§ 307. Special pay: special duty assignment pay for enlisted

members

(a) An enlisted member who is entitled to basic pay and is performing duties which have been designated under subsection (b) as

extremely difficult or as involving an unusual degree of responsibility in a military skill may, in addition to other pay or allowances

to which he is entitled, be paid special duty assignment pay at a

monthly rate not to exceed $600.

(b) The Secretary concerned shall determine which enlisted

members under his jurisdiction are to be paid special duty assignment pay under subsection (a). He shall also designate those skills

within each armed force under his jurisdiction for which special

duty assignment pay is authorized and shall prescribe the criteria

under which members of that armed force are eligible for special

duty assignment pay in each skill. He may increase, decrease, or

abolish such pay for any skill.

(c) This section shall be administered under regulations prescribed by the Secretary of Defense for the armed forces under his

jurisdiction and by the Secretary of Homeland Security for the

Coast Guard when the Coast Guard is not operating as a service

in the Navy.

(d)(1) Under regulations prescribed by the Secretary concerned

and to the extent provided for by appropriations, when an enlisted

member of the National Guard or a reserve component of a uniformed service who is entitled to compensation under section 206
§ 307a TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 106

of this title performs duty for which a member described in subsection (a) is entitled to special pay under such subsection, the

member of the National Guard or reserve component is entitled to

an increase in compensation equal to 1⁄30 of the monthly special

duty assignment pay prescribed by the Secretary concerned for the

performance of that same duty by members described in subsection

(a).

(2) A member of the National Guard or a reserve component

entitled to an increase in compensation under paragraph (1) is entitled to the increase—

(A) for each regular period of instruction, or period of appropriate duty, at which the member is engaged for at least

two hours, including that performed on a Sunday or holiday;

or

(B) for the performance of such other equivalent training,

instruction, duty, or appropriate duties, as the Secretary may

prescribe under section 206(a) of this title.

(3) This subsection does not apply to a member of the National

Guard or a reserve component who is entitled to basic pay under

section 204 of this title.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 467; amended P.L. 90–623, § 3(1), Oct. 22, 1968, 82 Stat.

1314; P.L. 98–525, § 623(b)(1), Oct. 19, 1984, 98 Stat. 2541, P.L. 102–25, § 702(b)(1), April 6,

1991, 105 Stat. 117; P.L. 104–106, § 619(a), Feb. 10, 1996, 110 Stat. 363; P.L. 106–398, § 1

(§§ 631, 632(a)), Oct. 30, 2000, 114 Stat. 1654A–156; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116

Stat. 2314.)

§ 307a. Special pay: assignment incentive pay

(a) AUTHORITY.—The Secretary concerned may pay monthly incentive pay under this section to a member of a uniformed service

who performs service, while entitled to basic pay, in an assignment

designated by the Secretary concerned.

(b) WRITTEN AGREEMENT.—The period for which incentive pay

will be provided under this section and the monthly rate of the incentive pay for a member shall be specified in a written agreement

between the Secretary concerned and the member. Agreements entered into by the Secretary of a military department shall require

the concurrence of the Secretary of Defense.

(c) MAXIMUM RATE.—The maximum monthly rate of incentive

pay payable to a member under this section is $1,500.

(d) RELATIONSHIP TO OTHER PAY AND ALLOWANCES.—Incentive

pay paid to a member under this section is in addition to any other

pay and allowances to which the member is entitled.

(e) STATUS NOT AFFECTED BY TEMPORARY DUTY OR LEAVE.—

The service of a member in an assignment referred to in subsection

(a) shall not be considered discontinued during any period that the

member is not performing service in the assignment by reason of

temporary duty performed by the member pursuant to orders or

absence of the member for authorized leave.

(f) TERMINATION OF AUTHORITY.—No agreement under this section may be entered into after December 31, 2005.

(Added P.L. 107–314, § 616(a)(1), Dec. 2, 2002, 116 Stat. 2569.)

§ 308. Special pay: reenlistment bonus

(a)(1) A member of a uniformed service who—
107 § 308 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(A) has completed at least 17 months of continuous active

duty (other than for training) but not more than fourteen years

of active duty;

(B) is qualified in a military skill designated as critical by

the Secretary of Defense, or by the Secretary of Homeland Security with respect to the Coast Guard when it is not operating

as a service in the Navy;

(C) is not receiving special pay under section 312a of this

title; and

(D) reenlists or voluntarily extends the member’s enlistment for a period of at least three years—

(i) in a regular component of the service concerned; or

(ii) in a reserve component of the service concerned, if

the member is performing active Guard and Reserve duty

(as defined in section 101(d)(6) of title 10);

may be paid a bonus as provided in paragraph (2).

(2) The bonus to be paid under paragraph (1) may not exceed

the lesser of the following amounts:

(A) The amount equal to the product of—

(i) 15 times the monthly rate of basic pay to which the

member was entitled at the time of the discharge or release of the member; and

(ii) the number of years (or the monthly fractions

thereof) of the term of reenlistment or extension of enlistment not to exceed six.

(B) $60,000.

(3) Any portion of a term of reenlistment or extension of enlistment of a member that, when added to the total years of service

of the member at the time of discharge or release, exceeds 16 years

may not be used in computing a bonus under paragraph (2)(A).

(4) Notwithstanding paragraph (1)(B), a member who agrees to

train and reenlist for service in a military skill which, at the time

of that agreement, is designated as critical, may be paid the bonus

approved for that skill, at the rate in effect at the time of agreement, upon completion of training and qualification in that skill, if

otherwise qualified under this subsection and even it that skill is

no longer designated as critical at the time the member becomes

eligible for payment of the bonus.

(5) The Secretary of Defense may waive the eligibility requirement in paragraph (1)(B) in the case of a reenlistment or voluntary

extension of enlistment by a member of the armed forces that is

entered into as described in this subsection while the member is

serving on active duty in Afghanistan, Iraq, or Kuwait in support

of Operation Enduring Freedom or Operation Iraqi Freedom.

(b) Bonus payments authorized under this section may be paid

in either a lump sum or in installments. If the bonus is paid in installments, the initial payment shall be not less than 50 percent of

the total bonus amount.

(c) For the purpose of computing the reenlistment bonus in the

case of an officer with prior enlisted service who may be entitled

to a bonus under subsection (a), the monthly basic pay of the grade

in which he is enlisted, computed in accordance with his years of

service computed under section 205 of this title, shall be used in-
§ 308 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 108

stead of the monthly basic pay to which he was entitled at the time

of his release from active duty as an officer.

(d)(1) A member who voluntarily or because of his misconduct,

does not complete the term of enlistment for which a bonus was

paid to him under this section or a member who is not technically

qualified in the skill for which a bonus was paid to him under this

section (other than a member who is not qualified because of injury, illness, or other impairment not the result of his own misconduct) shall refund that percentage of the bonus that the unexpired part of his additional obligated service is of the total reenlistment or extension period for which the bonus was paid.

(2) If a refund is not required under paragraph (1) in the case

of a member who fails to complete a term of enlistment, the Secretary of Defense with respect to the armed forces under the Secretary’s jurisdiction, and the Secretary of Homeland Security with

respect to the Coast Guard when it is not operating as a service

in the Navy, may decline to make any payment to a bonus installment under this section that is due to be paid to the member after

the date on which the member fails to complete the term of enlistment for which the bonus is being paid. The Secretary of Defense

and the Secretary of Homeland Security may prescribe the circumstances under which bonus installments may be terminated

under this paragraph.

(e) For the purposes of determining the eligibility of a member

for a bonus under this section and of computing the amount of that

bonus—

(1) any period of enlistment (including any extension of an

enlistment) (A) that is incurred by the member for the purpose

of continuing to qualify for continuous submarine duty incentive pay under section 301c of this title, and (B) for which no

bonus is otherwise payable; or

(2) any unserved period of two years or less of an extension of an enlistment for which no bonus has been paid or for

which no bonus is otherwise payable under this section,

may, under regulations prescribed by the Secretary concerned, be

considered as part of an immediately subsequent term of reenlistment (or as part of an immediately subsequent voluntary extension

of an enlistment).

(f) This section shall be administered under regulations prescribed by the Secretary of Defense for the armed forces under his

jurisdiction, and by the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in

the Navy.

(g) No bonus shall be paid under this section with respect to

any reenlistment, or voluntary extension of an active-duty reenlistment, in the armed forces entered into after December 31, 2004.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 467; amended P.L. 89–132, § 3, Aug. 21, 1965, 79 Stat. 547;

P.L. 90–623, § 3(1), Oct. 22, 1968, 82 Stat. 1314; P.L. 93–277, § 2(1), May 10, 1974, 88 Stat. 119;

P.L. 95–57, § 1, June 29, 1977, 91 Stat. 253; P.L. 95–485, § 802(a)(1), (b), Oct. 20, 1978, 92 Stat.

1619; P.L. 96–342, § 804(a), Sept. 8, 1980, 94 Stat. 1092; P.L. 96–579, § 3(f), Dec. 23, 1980, 94

Stat. 3364; P.L. 97–60, § 117(a), Oct. 14, 1981, 95 Stat. 996; P.L. 97–276, § 131, Oct. 2, 1982,

96 Stat. 1197; P.L. 97–377, § 101(c), Dec. 21, 1982, 96 Stat. 1865; P.L. 98–14, § 1, Mar. 30, 1983,

97 Stat. 55; P.L. 98–525, § 621, Oct. 19, 1984, 98 Stat. 2540; P.L. 99–145, § 631(a), Nov. 8, 1985,

99 Stat. 643; P.L. 100–180, §§ 625(a), 626(a), Dec. 4, 1987, 101 Stat. 1104; P.L. 101–189, § 611,

Nov. 29, 1989, 103 Stat. 1445; P.L. 101–510, § 615, Nov. 5, 1990, 104 Stat. 1578; P.L. 102–25,

§ 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 102–484, § 612(a), Oct. 23, 1992, 106 Stat. 2422;

P.L. 103–160, § 613(b), Nov. 30, 1993, 107 Stat. 1681; P.L. 103–337, § 613(b), Oct. 5, 1994, 108
109 § 308b TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

Stat. 2783; P.L. 104–106, § 613(b), Feb. 10, 1996, 110 Stat. 359; P.L. 104–201, § 613(b), Sept.

23, 1996, 110 Stat. 2544; P.L. 105–85, § 613(b), Nov. 18, 1997, 111 Stat. 1786; P.L. 105–261,

§§ 613(b), 618, 619, Oct. 16, 1998, 112 Stat. 2039, 2042; P.L. 106–65, §§ 613(b), 618, Oct. 5, 1999,

113 Stat. 650, 652; P.L. 106–398, § 1 (§ 623(b)), Oct. 30, 2000, 114 Stat. 1654A–152; P.L. 107–

107, § 614(b), Dec. 28, 2001, 115 Stat. 1136; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116 Stat.

2314; P.L. 107–314, § 614(b), Dec. 2, 2002, 116 Stat. 2568; P.L. 108–136, §§ 614(b), 626(a), Nov.

24, 2003, 117 Stat. 1501, 1507.)

ø§ 308a. Repealed. P.L. 106–398, § 1 (§ 624(b)(1)), 114 Stat.

1654A–153.¿

§ 308b. Special pay: reenlistment bonus for members of the

Selected Reserve

(a) AUTHORITY AND ELIGIBILITY REQUIREMENTS.—An enlisted

member of a reserve component who—

(1) has completed less than 14 years of total military service; and

(2) reenlists or voluntarily extends his enlistment for a period of three years or for a period of six years in a designated

military skill, or in a designated unit, as determined by the

Secretary concerned, in the Selected Reserve of the Ready Reserve of an armed force;

may be paid a bonus as provided in subsection (b).

(b) BONUS AMOUNTS; PAYMENT.—(1) The amount of a bonus

under this section may not exceed—

(A) $5,000, in the case of a member who reenlists or extends an enlistment for a period of six years;

(B) $2,500, in the case of a member who, having never received a bonus under this section, reenlists or extends an enlistment for a period of three years; and

(C) $2,000, in the case of a member who, having received

a bonus under this section for a previous three-year reenlistment or extension of an enlistment, reenlists or extends the enlistment for an additional period of three years.

(2) Any bonus payable under this section shall be disbursed in

one initial payment of an amount not to exceed one-half of the total

amount of the bonus and subsequent periodic partial payments of

the balance of the bonus. The Secretary concerned shall prescribe

the amount of each partial payment and the schedule for making

the partial payments.

(c) CONDITION ON ELIGIBILITY; LIMITATION ON NUMBER OF BONUSES.—(1) To be eligible for a second bonus under this section in

the amount specified in subsection (b)(1)(C), a member must—

(A) enter into the subsequent reenlistment or extension of

an enlistment for a period of three years not later than the

date on which the enlistment or extension for which the first

bonus was paid would expire; and

(B) still satisfy the designated skill or unit requirements

required under subsection (a)(2).

(2) A member may not be paid more than one six-year bonus

or two three-year bonuses under this section.

(3) In the case of a reenlistment or voluntary extension of enlistment by a member of the armed forces that is entered into as

described in subsection (a) while the member is serving on active

duty in Afghanistan, Iraq, or Kuwait in support of Operation Enduring Freedom or Operation Iraqi Freedom, the Secretary con-
§ 308c TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 110

cerned may waive so much of paragraph (1)(B) or subsection (a)(2)

as requires that the skill or unit in which the member reenlists or

extends an enlistment be a designated skill or designated unit determined by the Secretary concerned.

(d) PAYMENT TO MOBILIZED MEMBERS.—A member entitled to

a bonus under this section who is called or ordered to active duty

shall be paid, during that period of active duty, any amount of the

bonus that becomes payable to the member during that period of

active duty.

(e) REPAYMENT OF BONUS.—A member who receives a bonus

under this section and who fails, during the period for which the

bonus was paid, to serve satisfactorily in the element of the Selected Reserve of the Ready Reserve with respect to which the

bonus was paid shall refund to the United States an amount that

bears the same ratio to the amount of the bonus paid to the member as the period that the member failed to serve satisfactorily

bears to the total period for which the bonus was paid.

(f) REGULATIONS.—This section shall be administered under

regulations prescribed by the Secretary of Defense for the armed

forces under his jurisdiction and by the Secretary of Homeland Security for the Coast Guard when it is not operating as a service in

the Navy.

(g) TERMINATION OF AUTHORITY.—No bonus may be paid under

this section to any enlisted member who, after December 31, 2004,

reenlists or voluntarily extends his enlistment in a reserve component.

(Added P.L. 95–79, § 403(a)(1), July 30, 1977, 91 Stat. 330; amended P.L. 95–485, § 403, Oct.

20, 1978, 92 Stat. 1614; P.L. 96–342, § 805(b), Sept. 8, 1980, 94 Stat. 1095; P.L. 97–295, § 3(2),

Oct. 12, 1982, 96 Stat. 1303; P.L. 99–145, § 643(a), Nov. 8, 1985, 99 Stat. 652; P.L. 100–180,

§ 626(b), Dec. 4. 1987, 101 Stat. 1104; P.L. 101–189; §§ 613, 652, Nov. 29, 1989, 103 Stat. 1446,

1461; P.L. 101–510, § 1322(c)(4), Nov. 5, 1990, 104 Stat. 1672; P.L. 102–484, § 612(d), Oct. 23,

1992, 106 Stat. 2422; P.L. 103–160, § 612(a), Nov. 30, 1993, 107 Stat. 1680; P.L. 103–337,

§ 611(a), Oct. 5, 1994, 108 Stat. 2782; P.L. 104–106, § 611(a), Feb. 10, 1996, 110 Stat. 359; P.L.

104–201, § 611(b), Sept. 23, 1996, 110 Stat. 2543; P.L. 105–85, § § 611(b), 621, Nov. 18, 1997,

111 Stat. 1785, 1790; P.L. 105–261, § 611(b), Oct. 16, 1998, 112 Stat. 2038; P.L. 106–65, § 611(b),

Oct. 5, 1999, 113 Stat. 649; P.L. 106–398, § 1 (§ 621(b)), Oct. 30, 2000, 114 Stat. 1654A–151; P.L.

107–107, § 611(b), Dec. 28, 2001, 115 Stat. 1135; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116

Stat. 2314; P.L. 107–314, § 611(a), Dec. 2, 2002, 116 Stat. 2567; P.L. 108–136, §§ 611(a), 617,

626(b), Nov. 24, 2003, 117 Stat. 1500, 1503, 1507.)

§ 308c. Special pay: bonus for enlistment in the Selected Reserve

(a) Any person who enlists in the Selected Reserve of the

Ready Reserve of an armed force, is a graduate of a secondary

school, and has never previously served in an armed force may be

paid a bonus as provided in subsection (b).

(b) The amount and method of payment of a bonus to be paid

under subsection (a) shall be determined in accordance with regulations prescribed under subsection (c), except that the amount of

such bonus may not exceed $8,000 and—

(1) an amount not to exceed one-half of the bonus may be

paid upon completion of the initial active duty for training of

such person; and

(2) the remainder of the bonus may be paid in periodic installments or in a lump sum, as determined by the Secretary

concerned.
111 § 308d TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(c) This section shall be administered under regulations prescribed by the Secretary of Defense for the armed forces under his

jurisdiction and by the Secretary of Homeland Security for the

Coast Guard when it is not operating as a service in the Navy.

(d) A member who fails to participate satisfactorily in training

with his unit during a term of enlistment for which a bonus has

been paid to him under this section shall refund an amount which

bears the same ratio to the amount of the bonus which has been

paid to him as the unexpired part of such term of enlistment bears

to the total length of such term of enlistment.

(e) No bonus may be paid under this section to any enlisted

member who, after December 31, 2004, enlists in the Selected Reserve of the Ready Reserve of an armed force.

(f) The total amount of expenditures under this section may not exceed $37,024,000 during fiscal year 1994.

(Added P.L. 95–485, § 404(a), Oct. 20, 1978, 92 Stat. 1614; amended P.L. 96–342, § 805(b), Sept.

8, 1980, 94 Stat. 1095; P.L. 97–22, § 11(b)(1), July 10, 1981, 95 Stat. 138; P.L. 99–145, § 642,

Nov. 8, 1985, 99 Stat. 652; P.L. 100–180, § 626(b), Dec. 4, 1987, 101 Stat. 1104; P.L. 101–189,

§§ 613, 652(b), Nov. 29, 1989, 103 Stat. 1446, 1461; P.L. 101–510, § 1322(c)(5), Nov. 5, 1990, 104

Stat. 1672; P.L. 102–484, § 612(d), Oct. 23, 1992, 106 Stat. 2422; P.L. 103–160, § 612(b), Nov.

30, 1993, 107 Stat. 1680; P.L. 103–337, § 611(b), Oct. 5, 1994, 108 Stat. 2782; P.L. 104–106,

§ 611(b), Feb. 10, 1996, 110 Stat. 359; P.L. 104–201, § 611(c), Sept. 23, 1996, 110 Stat. 2543;

P.L. 105–85, § 611(c), Nov. 18, 1997, 111 Stat. 1785; P.L. 105–261, § 611(c), Oct. 16, 1998, 112

Stat. 2038; P.L. 106–65, §§ 611(c), 620, Oct. 5, 1999, 113 Stat. 649, 653; P.L. 106–398, § 1

(§ 621(c)), Oct. 30, 2000, 114 Stat. 1654A–151; P.L. 107–107, § 611(c), Dec. 28, 2001, 115 Stat.

1135; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314; P.L. 107–314, § 611(b), Dec. 2, 2002,

116 Stat. 2567; P.L. 108–136, § 611(b), Nov. 24, 2003, 117 Stat. 1500.)

§ 308d. Special pay: enlisted members of the Selected Reserve assigned to certain high priority units

(a) Under regulations prescribed by the Secretary of Defense,

or the Secretary of Homeland Security with respect to the Coast

Guard when it is not operating as a service in the Navy, an enlisted member who is assigned to a high priority unit of the Selected Reserve of the Ready Reserve of an armed force, as designated under subsection (b), and who performs inactive duty for

training for compensation under section 206 of this title with such

unit may be paid compensation, in addition to the compensation to

which the member is otherwise entitled, in an amount not to exceed $10 for each regular period of instruction, or period of appropriate duty, at which the member is engaged for at least four

hours, including any such instruction or duty performed on a Sunday or holiday.

(b) The Secretary concerned may designate a unit, for the purposes of subsection (a) and under such terms and conditions as the

Secretary considers appropriate, as a high priority unit if that unit

has experienced, or reasonably might be expected to experience,

critical personnel shortages. The Secretary may vacate a designation made under this subsection at any time he considers the designation no longer necessary.

(c) Additional compensation may not be paid under this section

for inactive duty performed after December 31, 2004.

(Added P.L. 101–189, § 505, Nov. 29, 1989, 103 Stat. 1437; amended P.L. 102–190, § 612(b), Dec.

5, 1991, 105 Stat. 1376; P.L. 102–484, § 612(d), Oct. 23, 1992, 106 Stat. 2422; P.L. 103–160,

§ 613(d), Nov. 30, 1993, 107 Stat. 1681; P.L. 103–337, § 613(d), Oct. 5, 1994, 108 Stat. 2783; P.L.

104–106, § 613(d), Feb. 10, 1996, 110 Stat. 359; P.L. 104–201, § 611(d), Sept. 23, 1996, 110 Stat.

2543; P.L. 105–85, § 611(d), Nov. 18, 1997, 111 Stat. 1785; P.L. 105–261, § 611(d), Oct. 16, 1998,

112 Stat. 2038; P.L. 106–65, §§ 611(d), 621, Oct. 5, 1999, 113 Stat. 650, 653; P.L. 106–398, § 1

(§ 621(d)), Oct. 30, 2000, 114 Stat. 1654A–151; P.L. 107–107, § 611(d), Dec. 28, 2001, 115 Stat.
§ 308e TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 112

1Section 651 of title 10 establishes a statutory requirement for six to eight years of service

for any individual who enters the military. Part of that service may be in the reserves, either

in the Selected Reserve or the Individual Ready Reserve.

1135; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314; P.L. 107–314, § 611(c), Dec. 2, 2002,

116 Stat. 2567; P.L. 108–136, § 611(c), Nov. 24, 2003, 117 Stat. 1500.)

§ 308e. Special pay: bonus for reserve affiliation agreement

(a) The Secretary concerned may pay a bonus for reserve affiliation to any person—

(1) who—

(A) is serving on active duty, has 180 days or less remaining of his active duty obligation, and upon discharge

or release from active duty upon the completion of such active duty obligation will have a reserve service obligation

under section 651 of title 10 1 or under section 6(d)(1) of

the Military Selective Service Act (50 U.S.C. App.

456(d)(1)); or

(B) has served on active duty for any period of time,

was discharged or released from such active duty under

honorable conditions, and is serving a period of reserve

service obligation under section 651 of title 10 or section

6(d)(1) of the Military Selective Service Act (50 U.S.C. App.

456(d)(1)); and

(2) who meets the requirements of subsection (b).

(b) To be eligible to receive a bonus for reserve affiliation under

this section, a person must—

(1) be eligible for reenlistment or for an extension of his

active duty service;

(2) have completed satisfactorily any term of enlistment or

period of obligated active duty service;

(3) hold and be qualified in a military specialty designated

for purposes of this section in the regulations prescribed under

subsection (f);

(4) have a grade for which there is a vacancy in the reserve component in which the person is to become a member;

(5) not be affiliated in a reserve component to become a

Reserve, Army National Guard, or Air National Guard technician;

(6) enter into a written agreement with the Secretary concerned to serve as a member of the Selected Reserve of the

Ready Reserve of an armed force for the period of obligated reserve service such person has remaining or, if such person is

on active duty, will have remaining at the time of his discharge

or release from active duty; and

(7) meet all the other requirements for becoming a member

of the Selected Reserve of the Ready Reserve of an armed

force.

(c)(1) The amount of the bonus paid to any person under this

section shall be an amount determined by multiplying up to $50 as

determined by the Secretary concerned times the number of

months of reserve obligation such person has remaining or, if such

person is on active duty, will have remaining at the time of his discharge or release from active duty.
113 § 308e TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(2) In the case of a person who has, or at the time of discharge

or release from active duty will have, eighteen months or less reserve service obligation remaining, the Secretary concerned may

pay the total amount of the bonus at the time such person signs

a reserve affiliation agreement under this section. In the case of a

person who has, or at the time of discharge or release from active

duty will have, more than eighteen months of such service remaining, the Secretary concerned may pay one-half of the bonus at the

time such person signs a reserve affiliation agreement under this

section and the remaining one-half on the date of the sixth anniversary of such person’s original enlistment or call to active duty.

(3) In lieu of the procedures set out in paragraph (2), the Secretary concerned may pay the bonus in monthly installments in

such amounts as may be determined by the Secretary. Monthly

payments under this paragraph shall begin after the first month of

satisfactory service of the person and are payable only for those

months in which the person serves satisfactorily. Satisfactory service shall be determined under the regulations prescribed under

subsection (f).

(d)(1) A person who signs a reserve affiliation agreement under

this section and who fails during the period covered by such agreement to serve satisfactorily in the Selected Reserve in which such

person agrees to serve shall refund to the United States an amount

which bears the same ratio to the amount of the bonus paid to such

person as the period which such person failed to satisfactorily serve

bears to the total period for which the bonus was paid.

(2) An obligation to reimburse the United States imposed

under paragraph (1) is for all purposes a debt owed to the United

States.

(3) A discharge in bankruptcy under title 11 that is entered

less than 5 years after the termination of an agreement under this

section does not discharge the person signing such agreement from

a debt arising under such agreement or under paragraph (1). This

paragraph applies to any case commenced under title 11 after September 30, 1980.

(e) No bonus may be paid under this section to any person for

a reserve obligation agreement entered into after December 31,

2004.

(f) This section shall be administered under regulations prescribed by the Secretary of Defense for the armed forces under the

jurisdiction of the Secretary of Defense and by the Secretary of

Homeland Security for the Coast Guard when the Coast Guard is

not operating as a service in the Navy.

(g) The authority in subsection (a) does not apply to the Secretary of Commerce and the Secretary of Health and Human Services.

(Added P.L. 96–342, § 805(a)(1), Sept. 8, 1980, 94 Stat. 1093; amended P.L. 97–86, § 505, Dec.

1, 1981, 95 Stat. 1100; P.L. 99–145, § 645(a), 99 Stat. 654; P.L. 100–180, § 626(b), Dec. 4, 1987,

101 Stat. 1104; P.L. 101–189, § 613, Nov. 29, 1989, 103 Stat. 1446, P.L. 102–25, § 702(b)(1) and

(2), April 6, 1991, 105 Stat. 117; P.L. 102–484, § 612(d), Oct. 23, 1992, 106 Stat. 2422; P.L. 103–

160, § 612(c), Nov. 30, 1993, 107 Stat. 1680; P.L. 103–337, § 611(c), Oct. 5, 1994, 108 Stat. 2782;

P.L. 104–106, § 611(c), Feb. 10, 1996, 110 Stat. 359; P.L. 104–201, § 611(e), Sept. 23, 1996, 110

Stat. 2543; P.L. 105–85, § § 611(e), 623, Nov. 18, 1997, 111 Stat. 1785, 1793; P.L. 105–261,

§ 611(e), Oct. 16, 1998, 112 Stat. 2038; P.L. 106–65, § 611(e), Oct. 5, 1999, 113 Stat. 650; P.L.

106–398, § 1 (§ 621(e)), Oct. 30, 2000, 114 Stat. 1654A–151; P.L. 107–107, § 611(e), Dec. 28, 2001,

115 Stat. 1135; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314; P.L. 107–314, § 611(d),

Dec. 2, 2002, 116 Stat. 2567; P.L. 108–136, § 611(d), Nov. 24, 2003, 117 Stat. 1500.)
§ 308g TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 114

ø§ 308f. Repealed. P.L. 106–398, § 1 (§ 624(b)(1)), 114 Stat.

1654A–153.¿

§ 308g. Special pay: bonus for enlistment in elements of the

Ready Reserve other than the Selected Reserve

(a) An eligible person who enlists in a combat or combat support skill of an element (other than the Selected Reserve) of the

Ready Reserve of an armed force for a term of enlistment of not

less than six years, and who has not previously served in an armed

force, may be paid a bonus as provided in subsection (b).

(b) Eligibility for and the amount and method of payment of a

bonus under this section shall be determined in accordance with

regulations prescribed under subsection (g), except that the amount

of such a bonus may not exceed $1,000.

(c) A bonus may not be paid under this section for a term of

enlistment to any person who fails to complete satisfactorily initial

active duty for training or who, upon completion of initial active

duty for training, elects to serve the remainder of the term of enlistment in the Selected Reserve or in an active component of an

armed force.

(d) A person who receives a bonus payment under this section

and who fails during the period for which the bonus was paid to

serve satisfactorily in the element of the Ready Reserve with respect to which the bonus was paid shall refund to the United

States an amount which bears the same ratio to the amount of the

bonus paid to such person as the period which such person failed

to serve satisfactorily bears to the total period for which the bonus

was paid.

(e) An obligation to reimburse the United States imposed

under subsection (d) is, for all purposes, a debt owed to the United

States.

(f) A discharge in bankruptcy under title 11 that is entered less

than five years after the termination of an enlistment for which a

bonus was paid under this section does not discharge the person

receiving such bonus payment from the debt arising under subsection (d). This subsection applies to any case commenced under

title 11 after September 24, 1983.

(g) This section shall be administered under regulations prescribed by the Secretary of Defense for the armed forces under his

jurisdiction and by the Secretary of Homeland Security for the

Coast Guard when it is not operating as a service in the Navy.

(h) A bonus may not be paid under this section to any person

for an enlistment after September 30, 1992.

(Added P.L. 98–94, § 1011(a), Sept. 24, 1983, 97 Stat. 663; amended P.L. 99–145, § 646(a),

§ 1303(b)(3), Nov. 8, 1985, 99 Stat. 654, 740; P.L. 100–180, § 626(b), Dec. 4, 1987, 101 Stat. 1104;

P.L. 101–189, § 613, Nov. 29, 1989, 103 Stat. 1446, P.L. 102–25, § 702(b)(1), April 6, 1991, 105

Stat. 117; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314.)

§ 308h. Special pay: bonus for reenlistment, enlistment, or

voluntary extension of enlistment in elements of

the Ready Reserve other than the Selected Reserve

(a) AUTHORITY AND ELIGIBILITY REQUIREMENTS.—(1) The Secretary concerned may pay a bonus as provided in subsection (b) to

an eligible person who reenlists, enlists, or voluntarily extends an

enlistment in a reserve component of an armed force for assign-
115 § 308h TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

ment to an element (other than the Selected Reserve) of the Ready

Reserve of that armed force if the reenlistment, enlistment, or extension is for a period of three years, or for a period of six years,

beyond any other period the person is obligated to serve.

(2) A person is eligible for a bonus under this section if the

person—

(A) is or has been a member of an armed force;

(B) is qualified in a skill or specialty designated by the

Secretary concerned as a critically short wartime skill or critically short wartime specialty; and

(C) has not failed to complete satisfactorily any original

term of enlistment in the armed forces.

(3) For the purposes of this section, the Secretary concerned

may designate a skill or specialty as a critically short wartime skill

or critically short wartime specialty for an armed force under the

jurisdiction of the Secretary if the Secretary determines that—

(A) the skill or specialty is critical to meet wartime requirements of the armed force; and

(B) there is a critical shortage of personnel in that armed

force who are qualified in that skill or specialty.

(4) The Secretary concerned may waive the eligibility requirement in paragraph (2)(B) in the case of a reenlistment or voluntary

extension of enlistment by a member of the armed forces that is

entered into as described in this subsection while the member is

serving on active duty in Afghanistan, Iraq, or Kuwait in support

of Operation Enduring Freedom and Operation Iraqi Freedom.

(b) BONUS AMOUNTS; PAYMENT.—(1) Eligibility for and the

amount and method of payment of a bonus under this section shall

be determined under regulations to be prescribed under subsection

(f).

(2) The amount of a bonus under this section—

(A) may not exceed $1,500, in the case of a person who enlists for period of six years; and

(B) may not exceed $750 in the case of a person who enlists for a period of three years.

(3) A bonus paid under this section shall be paid as follows:

(A) In the case of a bonus under paragraph (2)(A)—

(i) $500 shall be paid at the time of the reenlistment,

enlistment, or extension of enlistment for which the bonus

is paid; and

(ii) the remainder shall be paid in equal annual increments.

(B) In the case of a bonus under paragraph (2)(B), the

amount of the bonus shall be paid in equal annual increments.

(c) REPAYMENT OF BONUS.—A person who receives a bonus

payment under this section and who fails during the period for

which the bonus was paid to serve satisfactorily in the Ready Reserve shall refund to the United States an amount which bears the

same ratio to the amount of the bonus paid to such person as the

period which such person failed to serve satisfactorily bears to the

total period for which the bonus was paid.

(d) TREATMENT OF REIMBURSEMENT OBLIGATION.—An obligation to reimburse the United States imposed under subsection (c)

is, for all purposes, a debt owed to the United States.
§ 308i TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 116

(e) EFFECT OF BANKRUPTCY.—A discharge in bankruptcy under

title 11 that is entered less than five years after the termination

of a reenlistment, enlistment, or extension for which a bonus was

paid under this section does not discharge the person receiving

such bonus payment from the debt arising under subsection (c).

This subsection applies to any case commenced under title 11 after

September 24, 1983.

(f) REGULATIONS.—(1) This section shall be administered under

regulations to be prescribed by the Secretary of Defense for the

armed forces under his jurisdiction and by the Secretary of Homeland Security for the Coast Guard when it is not operating as a

service in the Navy.

(2) Regulations under this section may require that as a condition of receiving a bonus under this section the person receiving

the bonus agree to participate in an annual muster of the Reserves,

or in active duty for training, as may be required by the Secretary

concerned.

(g) TERMINATION OF AUTHORITY.—A bonus may not be paid

under this section to any person for a reenlistment, enlistment, or

voluntary extension of an enlistment after December 31, 2004.

(Added P.L. 98–94, § 1011(a), Sept. 24, 1983, 97 Stat. 663; amended P.L. 98–525, § 552(f)(2), Oct.

19, 1984, 98 Stat. 2532; P.L. 99–145, § 646(a)–(c), § 1303(b)(3), Nov. 8, 1985, 99 Stat. 654, 740;

P.L. 100–180, § 626(b), Dec. 4, 1987, 101 Stat. 1104; P.L. 101–189, § 613, Nov. 29, 1989, 103

Stat. 1446; P.L. 102–25, § 702(b)(1) and (2), April 6, 1991, 105 Stat. 117; P.L. 102–484, § 612(d),

Oct. 23, 1992, 106 Stat. 2422; P.L. 103–160, § 612(d), Nov. 30, 1993, 107 Stat. 1680; P.L. 103–

337, § 611(d), Oct. 5, 1994, 108 Stat. 2783; P.L. 104–106, § 611(d), Feb. 10, 1996, 110 Stat. 359;

P.L. 104–201, § 611(f), Sept. 23, 1996, 110 Stat. 2543; P.L. 105–85, § 611(f), Nov. 18, 1997, 111

Stat. 1785; P.L. 105–261, § 611(f), Oct. 16, 1998, 112 Stat. 2038; P.L. 106–65, § 611(f), Oct. 5,

1999, 113 Stat. 650; P.L. 106–398, § 1 (§ 621(f)), Oct. 30, 2000, 114 Stat. 1654A–151; P.L. 107–

107, §§ 611(f), 619(a), (b), Dec. 28, 2001, 115 Stat. 1135, 1138; P.L. 107–296, § 1704(c), Nov. 25,

2002, 116 Stat. 2314; P.L. 107–314, § 611(e), Dec. 2, 2002, 116 Stat. 2567; P.L. 108–136,

§§ 611(e), 626(c), Nov. 24, 2003, 117 Stat. 1501, 1508.)

§ 308i. Special pay: prior service enlistment bonus

(a) AUTHORITY AND ELIGIBILITY REQUIREMENTS.—(1) A person

who is a former enlisted member of an armed force who enlists in

the Selected Reserve of the Ready Reserve of an armed force for a

period of three or six years in a critical military skill designated

for such a bonus by the Secretary concerned and who meets the requirements of paragraph (2) may be paid a bonus as prescribed in

subsection (b).

(2) A bonus may only be paid under this section to a person

who meets each of the following requirements:

(A) The person has completed a military service obligation,

but has less than 14 years of total military service, and received an honorable discharge at the conclusion of that military service obligation.

(B) The person was not released, or is not being released,

from active service for the purpose of enlistment in a reserve

component.

(C) The person is projected to occupy, or is occupying, a position as a member of the Selected Reserve in a specialty in

which the person—

(i) successfully served while a member on active duty

and attained a level of qualification while on active duty

commensurate with the grade and years of service of the

member; or
117 § 308i TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(ii) has completed training or retraining in the specialty skill that is designated as critically short and attained a level of qualification in the specialty skill that is

commensurate with the grade and years of service of the

member.

(D) The person has not previously been paid a bonus (except under this section) for enlistment, reenlistment, or extension of enlistment in a reserve component.

(b) BONUS AMOUNTS; PAYMENT.—(1) The amount of a bonus

under this section may not exceed— (A) $8,000, in the case of a person who enlists for a period

of six years; (B) $4,000, in the case of a person who, having never received a bonus under this section, enlists for a period of three

years; and (C) $3,500, in the case of a person who, having received a

bonus under this section for a previous three-year enlistment,

reenlists or extends the enlistment for an additional period of

three years.

(2) Any bonus payable under this section shall be disbursed in

one initial payment of an amount not to exceed one-half of the total

amount of the bonus and subsequent periodic partial payments of

the balance of the bonus. The Secretary concerned shall prescribe

the amount of each partial payment and the schedule for making

the partial payments.

(c) CONDITION ON ELIGIBILITY; LIMITATION ON NUMBER OF BONUSES.—(1) To be eligible for a second bonus under this section in

the amount specified in subsection (b)(1)(C), a person must—

(A) enter into a reenlistment or extension of an enlistment

for a period of three years not later than the date on which the

enlistment for which the first bonus was paid would expire;

and

(B) still satisfy the eligibility requirements under subsection (a).

(2) A person may not be paid more than one six-year bonus or

two three-year bonuses under this section.

(d) REPAYMENT OF BONUS.—(1) A person who receives a bonus

payment under this section and who fails during the period for

which the bonus was paid to serve satisfactorily in the element of

the Selected Reserve of the Ready Reserve with respect to which

the bonus was paid shall refund to the United States an amount

that bears the same relation to the amount of the bonus paid to

such person as the period that such person failed to serve satisfactorily bears to the total period for which the bonus was paid.

(2) An obligation to reimburse the United States imposed

under paragraph (1) is, for all purposes, a debt owed to the United

States.

(3) Under regulations prescribed pursuant to subsection (e),

the Secretary concerned may remit or cancel the whole or any part

of an obligation to reimburse the United States imposed under

paragraph (1).

(4) A discharge in bankruptcy under title 11 that is entered

less than five years after the termination of an enlistment for

which a bonus was paid under this section shall not discharge the
§ 309 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 118

1Section 514(a) of title 10 prohibits a bounty from being paid to induce a person to enlist.

Enlistment bonuses and clothing allowances are specifically excluded from the definition of

bounties.

person receiving such bonus payment from the debt arising under

paragraph (1). This subsection applies to any case commenced

under title 11 after September 30, 1985.

(e) REGULATIONS.—This section shall be administered under

regulations prescribed by the Secretary of Defense for the armed

forces under his jurisdiction and by the Secretary of Homeland Security for the Coast Guard when the Coast Guard is not operating

as a service in the Navy.

(f) TERMINATION OF AUTHORITY.—No bonus may be paid under

this section to any person for an enlistment after December 31,

2004.

(Added P.L. 99–145, § 644(a)(1), Nov. 8, 1985, 99 Stat. 652; amended P.L. 100–26, § 8(d)(4), Apr.

21, 1987, 101 Stat. 285; P.L. 100–180, § 626(b), Dec. 4, 1987, 101 Stat. 1104; P.L. 101–189, § 613,

Nov. 29, 1989, 103 Stat. 1446, P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 102–

484, § 612(d), § 1136, Oct. 23, 1992, 106 Stat. 2422, 2542; P.L. 103–160, § 612(e), Nov. 30, 1993,

107 Stat. 1680; P.L. 103–337, § 611(e), Oct. 5, 1994, 108 Stat. 2783; P.L. 104–106, § 611(e), Feb.

10, 1996, 110 Stat. 359; P.L. 104–201, § 611(g), Sept. 23, 1996, 110 Stat. 2543; P.L. 105–85,

§ § 611(g), 622, Nov. 18, 1997, 111 Stat. 1785, 1791; P.L. 105–261, § 611(g) Oct. 16, 1998, 112

Stat. 2038; P.L. 106–65, §§ 611(g), 623(a), Oct. 5, 1999, 113 Stat. 650, 653; P.L. 106–398, § 1

(§ 621(g)), Oct. 30, 2000, 114 Stat. 1654A–151; P.L. 107–107, § 611(g), Dec. 28, 2001, 115 Stat.

1135; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314; P.L. 107–314, §§ 611(f), 617, Dec.

2, 2002, 116 Stat. 2567, 2570; P.L. 108–136, § 611(f), Nov. 24, 2003, 117 Stat. 1501.)

§ 309. Special pay: enlistment bonus 1

(a) BONUS AUTHORIZED; BONUS AMOUNT.—A person who enlists in an armed force for a period of at least 2 years may be paid

a bonus in an amount not to exceed $20,000. The bonus may be

paid in a single lump sum or in periodic installments.

(b) REPAYMENT OF BONUS.—(1) A member of the armed forces

who voluntarily, or because of the member’s misconduct, does not

complete the term of enlistment for which a bonus was paid under

this section, or a member who is not technically qualified in the

skill for which the bonus was paid, if any (other than a member

who is not qualified because of injury, illness, or other impairment

not the result of the member’s misconduct), shall refund to the

United States that percentage of the bonus that the unexpired part

of member’s enlistment is of the total enlistment period for which

the bonus was paid.

(2) An obligation to reimburse the United States imposed

under paragraph (1) is for all purposes a debt owed to the United

States.

(3) A discharge in bankruptcy under title 11 that is entered

less than 5 years after the termination of an enlistment for which

a bonus was paid under this section does not discharge the person

receiving the bonus from the debt arising under paragraph (1).

(c) RELATION TO PROHIBITION ON BOUNTIES.—The enlistment

bonus authorized by this section is not a bounty for purposes of section 514(a) of title 10.

(d) REGULATIONS.—This section shall be administered under

regulations prescribed by the Secretary of Defense for the armed

forces under the jurisdiction of the Secretary of Defense and by the

Secretary of Homeland Security for the Coast Guard when the

Coast Guard is not operating as a service in the Navy.
119 § 310 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

1For temporary increase in the authorized amount of hostile fire and imminent danger special

pay, see subsection (e) of this section, as added by section 619 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108–136; 117 Stat. 1504), and section 1316 of the

Emergency Wartime Supplemental Appropriations Act, 2003 (Public Law 108–11; 117 Stat. 570).

(e) DURATION OF AUTHORITY.—No bonus shall be paid under

this section with respect to any enlistment in the armed forces

made after December 31, 2004.

(Added P.L. 106–398, § 1 (§ 624(a)(1)), Oct. 30, 2000, 114 Stat. 1654A–152; amended P.L. 107–

107, § 614(c), Dec. 28, 2001, 115 Stat. 1136; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116 Stat.

2314; P.L. 107–314, § 614(c), Dec. 2, 2002, 116 Stat. 2568; P.L. 108–136, § 614(c), Nov. 24, 2003,

117 Stat. 1501.)

§ 310. Special pay: duty subject to hostile fire or imminent

danger

(a) ELIGIBILITY AND SPECIAL PAY AMOUNT.—Under regulations

prescribed by the Secretary of Defense, a member of a uniformed

service may be paid special pay at the rate of $150 1 for any month

in which—

(1) the member was entitled to basic pay or compensation

under section 204 or 206 of this title; and

(2) the member—

(A) was subject to hostile fire or explosion of hostile

mines;

(B) was on duty in an area in which the member was

in imminent danger of being exposed to hostile fire or explosion of hostile mines and in which, during the period

the member was on duty in the area, other members of the

uniformed services were subject to hostile fire or explosion

of hostile mines;

(C) was killed, injured, or wounded by hostile fire, explosion of a hostile mine, or any other hostile action; or

(D) was on duty in a foreign area in which the member was subject to the threat of physical harm or imminent

danger on the basis of civil insurrection, civil war, terrorism, or wartime conditions.

(b) CONTINUATION DURING HOSPITALIZATION.—A member covered by subsection (a)(2)(C) who is hospitalized for the treatment

of the injury or wound may be paid special pay under this section

for not more than three additional months during which the member is so hospitalized.

(c) LIMITATIONS AND ADMINISTRATION.—(1) A member may not

be paid more than one special pay under this section for any

month. A member may be paid special pay under this section in addition to any other pay and allowances to which he may be entitled.

(2) A member of a reserve component who is eligible for special

pay under this section for a month shall receive the full amount

authorized in subsection (a) for that month regardless of the number of days during that month on which the member satisfies the

eligibility criteria specified in such subsection.

(d) DETERMINATIONS OF FACT.—Any determination of fact that

is made in administering this section is conclusive. Such a determination may not be reviewed by any other officer or agency of the

United States unless there has been fraud or gross negligence.
§ 312 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 120

However, the determination may be changed on the basis of new

evidence or for other good cause.

(e) TEMPORARY INCREASE IN AUTHORIZED AMOUNT OF SPECIAL

PAY.—For the period beginning on October 1, 2003, and ending on

December 31, 2004, the rate of pay authorized by subsection (a)

shall be increased to $225.

(Added P.L. 88–132, § 9(a)(1), Oct. 2, 1963, 77 Stat. 216; amended P.L. 89–132, § 4, Aug. 21,

1965, 79 Stat. 547; P.L. 98–94, § 905(a), (b) (1), Sept. 24, 1983, 97 Stat. 636, 637; P.L. 99–145,

§ 638(a), Nov. 8, 1985, 99 Stat. 649; P.L. 101–510, § 1322(c)(6), Nov. 5, 1990, 104 Stat. 1672;

P.L. 102–190, § 611(a) and 613, Dec. 5, 1991, 105 Stat. 1376 and 1377; P.L. 105–261, § 621, Oct.

16, 1998, 112 Stat. 2042; P.L. 108–11, § 61316(a), Apr. 16, 2003, 117 Stat. 570; P.L. 108–136,

§§ 618(a), (b), 619, Nov. 24, 2003, 117 Stat. 1503, 1504.)

ø§ 311. Repealed. P.L. 99–145, § 639(b), 99 Stat. 651.¿

§ 312. Special pay: nuclear-qualified officers extending period of active duty

(a) Under regulations to be prescribed by the Secretary of the

Navy, an officer of the naval service who—

(1) is entitled to basic pay;

(2) has the current technical qualification for duty in connection with supervision, operation, and maintenance of naval

nuclear propulsion plants; and

(3) executes a written agreement to remain on active duty

in connection with supervision, operation, and maintenance of

naval nuclear propulsion plants for a period of three, four, or

five years, so long as the new period of obligated active service

does not extend beyond the end of 26 years of commissioned

service, in addition to any other period of obligated active service;

may, upon the acceptance by the Secretary or his designee of the

written agreement, in addition to all other compensation to which

he is entitled, be paid a sum of money not to exceed $25,000 for

each year of the active-service agreement. The Secretary of the

Navy shall determine annually the necessity for continuance of the

special pay and the rate of special pay per year for such activeservice agreements accepted within each 12-month period. Upon acceptance of the agreement by the Secretary or his designee, the

total amount payable shall be paid in equal annual installments

over the length of the contract, commencing at the expiration of

any existing period of obligated active service. The Secretary (or his

designee) may accept an active service agreement under this section not more than one year in advance of the end of an officer’s

existing period of obligated active service under such an agreement.

In such a case, the amount of the special pay may be paid commencing with the date of acceptance of the agreement, with the

number of installments being equal to the number of years covered

by the contract plus one.

(b) Pursuant to regulations prescribed by the Secretary of the

Navy and subject to such exceptions as may be prescribed in those

regulations, refunds, on a pro rata basis, of sums paid pursuant to

this section may be required if the officer having received the payment fails to complete the full period of active duty in connection

with supervision, operation, and maintenance of naval nuclear propulsion plants which he agreed to serve.
121 § 312a TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(c) Nothing in this section shall alter or modify the obligation

of a regular officer to perform active service at the pleasure of the

President. Completion of the additional period of active service

under this section shall in no way obligate the President to accept

a resignation submitted by a regular officer.

(d)(1) An officer who is performing obligated service under an

agreement under subsection (a) may, if the amount that may be

paid under such subsection is higher than at the time the officer

executed such agreement, execute a new agreement under that

subsection. The period of such an agreement shall be a period

equal to or exceeding the original period of the officer’s existing

agreement, so long as the period of obligated active service under

the new agreement does not extend beyond the end of 26 years of

commissioned service. If a new agreement is executed under this

subsection, the existing active-service agreement shall be cancelled,

effective on the day before an anniversary date of that agreement

after the date on which the amount that may be paid under this

section is increased.

(2) This subsection shall be carried out under regulations prescribed by the Secretary of the Navy.

(e) The provisions of this section shall be effective only in the

case of officers who, on or before December 31, 2004, execute the

required written agreement to remain in active service.

(Added P.L. 91–20, § 1(1), June 3, 1969, 83 Stat. 12; amended P.L. 92–581, § 1(1), (2), Oct. 27,

1972, 86 Stat. 1277; P.L. 94–356, § 2, July 12, 1976, 90 Stat. 901; P.L. 96–513, Title V, § 516(8),

Dec. 12, 1980, 94 Stat. 2938; P.L. 96–579, § 2(a), Dec. 23, 1980, 94 Stat. 3359; P.L. 99–145, Title

VI, § 632(a), Nov. 8, 1985, 99 Stat. 643; P.L. 101–189, § 614(a), Nov. 29, 1989, 103 Stat. 1446,

P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 103–337, § 613(g), Oct. 5, 1994, 108

Stat. 2783; P.L. 104–106, § 613(e), Feb. 10, 1996, 110 Stat. 360; P.L. 104–201, § 613(d), Sept.

23, 1996, 110 Stat. 2544; P.L. 105–85, § § 613(d), 624(a), Nov. 18, 1997, 111 Stat. 1786, 1793;

P.L. 105–261, § 613(d), Oct. 16, 1998, 112 Stat. 2039; P.L. 106–65, §§ 613(e), 624(a), Oct. 5, 1999,

113 Stat. 650, 654; P.L. 106–398, § 1 (§ 623(c)), Oct. 30, 2000, 114 Stat. 1654A–152; P.L. 107–

107, § 613(a), Dec. 28, 2001, 115 Stat. 1136; P.L. 107–314, § 613(a), Dec. 2, 2002, 116 Stat. 2568;

P.L. 108–136, § 613(a), Nov. 24, 2003, 117 Stat. 1501.)

§ 312a. Special pay: nuclear-trained and qualified enlisted

members

(a) Under regulations prescribed by the Secretary of Defense,

an enlisted member of the naval service who—

(1) is entitled to basic pay;

(2) is currently qualified for duty in connection with the

supervision, operation, and maintenance of naval nuclear propulsion plants; and

(3) has completed at least six, but not more than ten, years

of active duty and executes, when eligible, a reenlistment

agreement for not less than two years;

may upon acceptance of the reenlistment agreement by the Secretary of the Navy or his designee, be paid a bonus not to exceed

six months of the basic pay to which he was entitled at the time

of his discharge or release, multiplied by the number of years or

the monthly fractions thereof, of additional obligated service, not to

exceed six years, or $15,000, whichever is the lesser amount.

(b) Bonus payments authorized under this section may be paid

in either a lump sum or in installments.

(c) An amount paid to a member under subsection (a) is in addition to all other compensation to which he is entitled and does

not count against the limitation prescribed by section 308(a) of this
§ 312b TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 122

title concerning the total amount of reenlistment bonus that may

be paid.

(d) Under regulations prescribed by the Secretary of the Navy,

refunds, on a pro rata basis, of sums paid under subsection (a) may

be required, and further payments terminated, if the member who

has received the payment fails to complete his reenlistment contract, or fails to maintain his technical qualification for duty in connection with supervision, operation, and maintenance of naval nuclear propulsion plants.

(e) Provisions of this section shall be effective only in the cases

of members who, on or before June 30, 1975, execute the required

written agreement to remain in active service.

(Added P.L. 92–581, § 1(3), Oct. 27, 1972, 86 Stat. 1277; amended P.L. 97–295, § 3(3), Oct. 12,

1982, 96 Stat. 1303.)

§ 312b. Special pay: nuclear career accession bonus

(a)(1) Under regulations prescribed by the Secretary of the

Navy, an individual who is selected for officer naval nuclear power

training and who executes a written agreement to participate in a

program of training for duty in connection with the supervision, operation, and maintenance of naval nuclear propulsion plants may

be paid a bonus of $20,000 upon acceptance by the Secretary of the

written agreement. Upon acceptance of the agreement by the Secretary, the amounts payable upon selection for training and upon

completion of training, respectively, as determined under subsection (b), shall become fixed.

(2) Under such regulations, and subject to such exceptions, as

the Secretary of the Navy may prescribe, an individual who has entered into an agreement with the Secretary under this subsection,

who has been paid a bonus under this subsection, and who fails to

commence or satisfactorily complete the nuclear power training

specified in the agreement shall be required to refund such bonus.

(b) The Secretary of the Navy shall determine annually the

total amount of the bonus to be paid under this section and of that

amount the portions that are to be paid—

(1) upon selection for officer naval nuclear power training;

and

(2) upon successful completion, as a commissioned officer,

of training for duty in connection with the supervision, operation, and maintenance of naval nuclear propulsion plants.

(c) The provisions of this section shall be effective only in the

case of officers who, on or before December 31, 2004, have been accepted for training for duty in connection with the supervision, operation, and maintenance of naval nuclear propulsion plants.

(Added P.L. 94–356, § 3, July 12, 1976, 90 Stat. 901; amended P.L. 96–579, § 2(b)(1)–(3), Dec.

23, 1980, 94 Stat. 3359; P.L. 97–60, § 119, Oct. 14, 1981, 95 Stat. 997; P.L. 99–145, § 632(b),

§ 1303(b)(4), Nov. 8, 1985, 99 Stat. 644, 740; P.L. 101–189, § 614(b), Nov. 29, 1989, 103 Stat.

1446; P.L. 101–510, § 1322(c)(7), Nov. 5, 1990, 104 Stat. 1672, P.L. 102–25, § 702(b)(1), April 6,

1991, 105 Stat. 117; P.L. 103–337, § 613(h), Oct. 5, 1994, 108 Stat. 2784; P.L. 104–106, § 613(f),

Feb. 10, 1996, 110 Stat. 360; P.L. 104–201, § 613(e), Sept. 23, 1996, 110 Stat. 2544; P.L. 105–

85, §§ 613(e), 624(b), Nov. 18, 1997, 111 Stat. 1786, 1793; P.L. 105–261, § 613(e), Oct. 16, 1998,

112 Stat. 2039; P.L. 106–65, §§ 613(f), 624(b), Oct. 5, 1999, 113 Stat. 650, 654; P.L. 106–398,

§ 1 (§ 623(d)), Oct. 30, 2000, 114 Stat. 1654A–152; P.L. 107–107, § 613(b), Dec. 28, 2001, 115

Stat. 1198; P.L. 107–314, § 613(b), Dec. 2, 2002, 116 Stat. 2568; P.L. 108–136, § 613(b), Nov. 24,

2003, 117 Stat. 1501.)
123 § 312c TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

§ 312c. Special pay: nuclear career annual incentive bonus

(a)(1) Under regulations prescribed by the Secretary of the

Navy, an officer of the naval service who—

(A) is entitled to basic pay;

(B) is not above the pay grade O–6;

(C) has completed his initial obligated active service as an

officer;

(D) has, as a commissioned officer, successfully completed

training for duty in connection with the supervision, operation,

and maintenance of naval nuclear propulsion plants; and

(E) has the current technical qualifications for duty in connection with the supervision, operation, and maintenance of

naval nuclear propulsion plants;

may, in addition to all other compensation to which he is entitled,

be paid an annual bonus in an amount not to exceed $22,000 for

each nuclear service year.

(2) In order to be eligible for an annual bonus for any service

year in accordance with this subsection, an otherwise technically

qualified officer must have been on active duty on the last day of

that nuclear service year.

(3) The amount of the annual bonus to which an officer would

otherwise be entitled for a nuclear service year in accordance with

this subsection shall be reduced on a pro rata basis for each day

of that nuclear service year on which he—

(A) was not on active duty;

(B) was not technically qualified for duty in connection

with the supervision, operation, and maintenance of naval nuclear propulsion plants;

(C) was performing obligated service as the result of an active-service agreement executed under section 312 of this title;

or

(D) was entitled to receive aviation career incentive pay in

accordance with section 301a while serving in a billet other

than a billet that required the officer—

(i) be technically qualified for duty in connection with

the supervision, operation, and maintenance of naval nuclear propulsion plants; and

(ii) be qualified for the performance of operational flying duties.

(b)(1) Under regulations prescribed by the Secretary of the

Navy, an officer of the naval service who—

(A) is entitled to basic pay;

(B) is not above the pay grade O–6;

(C) has, as an enlisted member, received training for duty

in connection with the supervision, operation, and maintenance

of naval nuclear propulsion plants; and

(D) has the current technical qualifications for duty in connection with the supervision, operation, and maintenance of

naval nuclear propulsion plants;

may, in addition to all other compensation to which he is entitled,

be paid an annual bonus in an amount not to exceed $10,000 for

each nuclear service year.
§ 314 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 124

(2) In order to be eligible for an annual bonus for any nuclear

service year in accordance with this subsection, an otherwise technically qualified officer must have been on active duty on the last

day of that nuclear service year.

(3) The amount of the annual bonus to which an officer would

otherwise be entitled in accordance with this subsection shall be reduced on a pro rata basis for each day of that nuclear service year

on which he—

(A) was not in an assignment involving the direct supervision, operation, or maintenance of naval nuclear propulsion

plants;

(B) was performing obligated service as the result of an active-service agreement executed under section 312 of this title;

or

(C) was entitled to receive aviation career incentive pay in

accordance with section 301a while serving in a billet other

than a billet—

(i) involving the direct supervision, operation, or maintenance of naval nuclear propulsion plants; and

(ii) that required the officer be qualified for the performance of operational flying duties.

(c) Under regulations prescribed by the Secretary of the Navy,

an officer of the naval service who is not on active duty on the last

day of a nuclear service year or who, on or before the last day of

a nuclear service year, loses his technical qualifications or advances

from the pay grade of O–6 to a higher pay grade may be paid a

bonus in accordance with subsection (a) or (b) on a pro rata basis,

if otherwise qualified, unless termination of active duty or loss of

technical qualifications was voluntary or was the result of his own

misconduct.

(d) For the purposes of this section, a ‘‘nuclear service year’’ is

any fiscal year beginning before December 31, 2004.

(Added P.L. 94–356, § 3, July 12, 1976, 90 Stat. 901; amended P.L. 96–513, § 516(9), Dec. 12,

1980, 94 Stat. 2938; P.L. 96–579, § 2(c), Dec. 23, 1980, 94 Stat. 3359; P.L. 99–145, § 632(c), Nov.

8, 1985, 99 Stat. 645; P.L. 101–189, § 614(c), Nov. 29, 1989, 103 Stat. 1446; P.L. 101–510,

§ 1322(c)(8), Nov. 5, 1990, 104 Stat. 1672, P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117;

P.L. 103–337, § 613(i), Oct. 5, 1994, 108 Stat. 2784; P.L. 104–106, § 613(g), Feb. 10, 1996, 110

Stat. 360; P.L. 104–201, § 613(f), Sept. 23, 1996, 110 Stat. 2544; P.L. 105–85, §§ 613(f), 624(c),

Nov. 18, 1997, 111 Stat. 1786, 1793; P.L. 105–261, § 613(f), Oct. 16, 1998, 112 Stat. 2039; P.L.

106–65, §§ 613(g), 624(c), Oct. 5, 1999, 113 Stat. 650, 654; P.L. 106–398, § 1 (§ 623(e)), Oct. 30,

2000, 114 Stat. 1654A–152; P.L. 107–107, § 613(c), Dec. 28, 2001, 115 Stat. 1136; P.L. 107–314,

§ 613(c), Dec. 2, 2002, 116 Stat. 2568; P.L. 108–136, § 613(c), Nov. 24, 2003, 117 Stat. 1501.)

ø§ 313. Repealed. P.L. 96–513, § 414(a), 94 Stat. 2906.¿

§ 314. Special pay or bonus: qualified members extending

duty at designated locations overseas

(a) COVERED MEMBERS.—This section applies with respect to a

member of an armed force who—

(1) is entitled to basic pay;

(2) has a specialty that is designated by the Secretary concerned for the purposes of this section;

(3) has completed a tour of duty (as defined in accordance

with regulations prescribed by the Secretary concerned) at a location outside the continental United States that is designated

by the Secretary concerned for the purposes of this section; and
125 § 314 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

1Section 705 of title 10, referred to in section 314(e), authorizes the following options in lieu

of the special pay authorized by this section:

(1) 30 days of non-chargeable leave; or

(2) 15 days of non-chargeable leave plus travel to and from the United States for the service member.

(4) at the end of that tour of duty executes an agreement

to extend that tour for a period of not less than one year.

(b) SPECIAL PAY OR BONUS AUTHORIZED.—Upon the acceptance

by the Secretary concerned of the agreement providing for an extension of the tour of duty of a member described in subsection (a),

the member is entitled, at the election of the Secretary concerned,

to either—

(1) special pay in monthly installments in an amount prescribed by the Secretary, but not to exceed $80 per month; or

(2) an annual bonus in an amount prescribed by the Secretary, but not to exceed $2,000 per year.

(c) SELECTION AND PAYMENT OF SPECIAL PAY OR BONUS.—Not

later than the date on which the Secretary concerned accepts an

agreement described in subsection (a)(4) providing for the extension

of a member’s tour of duty, the Secretary concerned shall notify the

member regarding whether the member will receive special pay or

a bonus under this section. The payment rate for the special pay

or bonus shall be fixed at the time of the agreement and may not

be changed during the period of the extended tour of duty. The Secretary concerned may pay a bonus under this section either in a

lump sum or installments.

(d) REPAYMENT OF BONUS.—(1) A member who, having entered

into a written agreement to extend a tour of duty for a period

under subsection (a), receives a bonus payment under subsection

(b)(2) for a 12-month period covered by the agreement and ceases

during that 12-month period to perform the agreed tour of duty

shall refund to the United States the unearned portion of the

bonus. The unearned portion of the bonus is the amount by which

the amount of the bonus paid to the member exceeds the amount

determined by multiplying the amount of the bonus paid by the

percent determined by dividing 12 into the number of full months

during which the member performed the duty in the 12-month period.

(2) The Secretary concerned may waive the obligation of a

member to reimburse the United States under paragraph (1) if the

Secretary determines that conditions and circumstances warrant

the waiver.

(3) An obligation to repay the United States imposed under

paragraph (1) is for all purposes a debt owed to the United States.

(4) A discharge in bankruptcy under title 11 that is entered

less than five years after the termination of the agreement does not

discharge the member signing the agreement from a debt arising

under the agreement or under paragraph (1). This paragraph applies to any case commenced under title 11 on or after the date of

the enactment of the National Defense Authorization Act for Fiscal

Year 1998.

(e) EFFECT OF REST AND RECUPERATIVE ABSENCE.—A member

who elects to receive one of the benefits specified in section 705(b)

of title 10 1 as part of the extension of a tour of duty is not entitled
§ 315 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 126

to the special pay authorized by subsection (b)(1) for the period of

the extension of duty for which the benefit under such section is

provided.

(Added P.L. 96–579, § 5(a)(1), Dec. 23, 1980, 94 Stat. 3366; amended P.L. 99–145, § 641(a), Nov.

8, 1985, 99 Stat. 652; P.L. 105–85, § 625(a), Nov. 18, 1997, 111 Stat. 1794; P.L. 107–314,

§ 654(b)(1), Dec. 2, 2002, 116 Stat. 2582; P.L. 108–136, § 621(a)(1), (2)(A), Nov. 24, 2003, 117

Stat. 1505.)

§ 315. Special pay: engineering and scientific career continuation pay

(a) In this section, the term ‘‘engineering or scientific duty’’

means service performed by an officer—

(1) that requires an engineering or science degree; and

(2) that requires a skill designated (under regulations prescribed by the Secretary of Defense for the armed forces, by the

Secretary of Commerce for the National Oceanic and Atmospheric Administration, or by the Secretary of Health and

Human Services for the Public Health Service) as critical and

as a skill in which there is a critical shortage of officers in the

uniformed service concerned.

(b) Under regulations prescribed by the Secretary concerned,

an officer of a uniformed service who—

(1) is entitled to basic pay;

(2) is below the pay grade of O–7;

(3) holds a degree in engineering or science from an accredited college or university;

(4) has been certified by the Secretary concerned as having

the technical qualifications for detail to engineering or scientific duty;

(5) has completed at least three but less than nineteen

years of engineering or scientific duty as an officer; and

(6) executes a written agreement to remain on active duty

for detail to engineering or scientific duty for at least one year,

but not more than four years;

may, upon acceptance of the written agreement by the Secretary

concerned, be paid, in addition to all other compensation to which

the officer is entitled, an amount not to exceed $3,000 multiplied

by the number of years, or monthly fraction thereof, of obligated

service to which the officer agrees under the agreement. The total

amount payable may be paid in a lump sum or in equal periodic

installments, as determined by the Secretary concerned.

(c)(1) An officer who does not serve on active duty for the entire period for which he has been paid under subsection (b) shall

refund that percentage of the payment that the unserved part of

the period is of the total period for which the payment was made.

Nothing in this subsection shall alter or modify the obligation of a

regular officer to perform active service at the pleasure of the

President. Completion by a regular officer of the total period of obligated service specified in an agreement under subsection (b) does

not obligate the President to accept a resignation submitted by that

officer.

(2) Subject to paragraph (3), an obligation to reimburse the

United States imposed under paragraph (1) is for all purposes a

debt owed to the United States.
127 § 316 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(3) The Secretary concerned may waive, in whole or in part, a

refund required under paragraph (1) if the Secretary concerned determines that recovery would be against equity and good conscience

or would be contrary to the best interests of the United States.

(4) A discharge in bankruptcy under title 11 that is entered

less than five years after the termination of an agreement under

this section does not discharge the member signing such agreement

from a debt arising under such agreement or under paragraph (1).

This paragraph applies to any case commenced under title 11 after

September 30, 1981.

(Added P.L. 97–60, § 120(a), Oct. 14, 1981, 95 Stat. 998; amended P.L. 99–145, § 637(a), Nov.

8, 1985, 99 Stat. 648; P.L. 100–26, § 8(e)(6), Apr. 21, 1987, 101 Stat. 286, P.L. 102–25, § 702(b)(1)

and (2), April 6, 1991, 105 Stat. 117.)

§ 316. Special pay: foreign language proficiency pay

(a) Any member of the uniformed services—

(1) who is entitled to basic pay under section 204 of this

title;

(2) who has been certified by the Secretary concerned within the past 12 months to be proficient in a foreign language

identified by the Secretary concerned as being a language in

which it is necessary to have personnel proficient because of

national defense or public health considerations; and

(3) who—

(A) is qualified in a uniformed services specialty requiring such proficiency;

(B) received training, under regulations prescribed by

the Secretary concerned, designed to develop such proficiency;

(C) is assigned to duties requiring such a proficiency;

or

(D) is proficient in a foreign language for which the

uniformed service may have a critical need (as determined

by the Secretary concerned),

may be paid special pay under this section in addition to any other

pay or allowance to which the member is entitled.

(b) The monthly rate for special pay under subsection (a) shall

be determined by the Secretary concerned and may not exceed

$300.

(c)(1) Under regulations prescribed by the Secretary concerned,

when a member of a reserve component who is entitled to compensation under section 206 of this title meets the requirements for

special pay authorized in subsection (a), except the requirement

prescribed in subsection (a)(1), the member may be paid an increase in compensation equal to one-thirtieth of the monthly special pay authorized under subsection (b) for a member who is entitled to basic pay under section 204 of this title.

(2) A member eligible for increased compensation under paragraph (1) shall be paid such increase—

(A) for each regular period of instruction, or period of appropriate duty, in which he is engaged for at least two hours,

including instruction received or duty performed on a Sunday

or holiday; and
§ 316a TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 128

(B) for each period of performance of such other equivalent

training, instruction, duty, or appropriate duties, as the Secretary concerned may prescribe.

(3) This subsection does not apply to a member who is entitled

to basic pay under section 204 of this title.

(d) This section shall be administered under regulations prescribed by the Secretary of Defense for the armed forces under the

jurisdiction of the Secretary, by the Secretary of Homeland Security for the Coast Guard when the Coast Guard is not operating as

a service in the Navy, by the Secretary of Health and Human Services for the Commissioned Corps of the Public Health Service, and

by the Secretary of Commerce for the National Oceanic and Atmospheric Administration.

(Added P.L. 99–661, § 634(a)(1), Nov. 14, 1986, 100 Stat. 3884; amended P.L. 104–201, § 616(a),

(b), Sept. 23, 1996, 110 Stat. 2547; P.L. 106–65, § 625, Oct. 5, 1999, 113 Stat. 654; P.L. 107–

296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314.)

§ 316a. Waiver of certification requirement

(a) CERTIFICATION INTERRUPTED BY CONTINGENCY OPERATION.—(1) A member of the armed forces described in subsection

(b) shall be paid special pay under section 316 of this title for the

active duty performed by that member during the period described

in paragraph (2) if—

(A) the member was assigned to duty in connection with

a contingency operation;

(B) the Secretary concerned (under regulations prescribed

by the Secretary of Defense) determines that the member was

unable to schedule or complete the certification required for

eligibility for the special pay under that section because of that

duty;

(C) except for not meeting the certification requirement in

that section, the member was otherwise eligible for that special

pay for that active duty; and

(D) the member completes the certification requirement

specified in that section before the end of the period established for the member in subsection (c).

(2) The period for which a member may be paid special pay for

active duty pursuant to paragraph (1) is the period beginning on

the date on which the member was assigned to the duty referred

to in subparagraph (A) of that paragraph and ending on the date

of the member’s certification referred to in subparagraph (D) of

that paragraph.

(b) ELIGIBLE MEMBER DESCRIBED.—A member of the armed

forces referred to in subsection (a) is a member who meets the requirement referred to in section 316(a)(3) of this title.

(c) PERIOD FOR CERTIFICATION.—The period referred to in subparagraph (D) of subsection (a)(1) with respect to a member of the

armed forces is the 180-day period beginning on the date on which

the member was released from the duty referred to in that subsection. The Secretary concerned may extend that period for a

member in accordance with regulations prescribed by the Secretary

of Defense.

(Added P.L. 102–190, § 636(a), Dec. 5, 1991, 105 Stat. 1382.)
129 § 317 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

§ 317. Special pay: officers in critical acquisition positions

extending period of active duty

(a) BONUS AUTHORIZED.—An officer described in subsection (b)

who executes a written agreement to remain on active duty in a

critical acquisition position for at least one year may, upon the acceptance of the agreement by the Secretary concerned, be paid a retention bonus as provided in this section.

(b) COVERED OFFICERS.—An officer referred to in subsection (a)

is an officer of the Army, Navy, Air Force, or Marine Corps who—

(1) is a member of an Acquisition Corps selected to serve

in, or serving in, a critical acquisition position designated

under section 1733 of title 10; and

(2) is eligible to retire, or is assigned to such position for

a period that will extend beyond the date on which the officer

will be eligible to retire, under any provision of law.

(c) AMOUNT OF BONUS.—The amount of a bonus paid under

this section for each year a member agrees to remain on active

duty may not be more than 15 percent of the annual rate of basic

pay paid to the member at the time the member executes a written

agreement to under this section.

(d) PAYMENT OF BONUS.—Upon the acceptance of a written

agreement under subsection (a) by the Secretary concerned, the

total amount payable pursuant to the agreement becomes fixed and

may be paid by the Secretary in either a lump sum or installments.

(e) ADDITIONAL PAY.—A bonus paid under this section is in addition to other pay and allowances to which an officer is entitled.

(f) REPAYMENT OF BONUS.—(1) If an officer who has entered

into a written agreement under subsection (a) and who has received all or part of a bonus under this section fails to complete the

total period of active duty specified in the agreement, the Secretary

concerned may require the officer to repay the United States, on

a pro rata basis and to the extent that the Secretary determines

conditions and circumstances warrant, all sums paid under this

section.

(2) An obligation to repay the United States imposed under

paragraph (1) is for all purposes a debt owed to the United States.

(3) A discharge in bankruptcy under title 11 that is entered

less than 5 years after the termination of a written agreement entered into under subsection (a) does not discharge the officer signing the agreement from a debt arising under such agreement or

under paragraph (1). This paragraph applies to any case commenced under title 11 after January 1, 1991.

(g) PERIOD OF COMMITMENT.—The period of active duty agreed

upon by an officer in a written agreement under this section is in

addition to any other service commitment of the officer, except that

any period of active duty agreed upon in a written agreement

under subsection (a)(2) or (b)(2) of section 1734 of title 10 by the

officer may be counted concurrently with the commitment under

this section.

(h) REGULATIONS.—The Secretaries concerned shall prescribe

regulations to carry out this section. Regulations prescribed by the

Secretary of a military department shall be subject to the approval

of the Secretary of Defense.
§ 318 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 130

(Added P.L. 101–510, § 1203, Nov. 5, 1990, 104 Stat 1656.)

§ 318. Special pay: special warfare officers extending period

of active duty

(a) SPECIAL WARFARE OFFICER DEFINED.—In this section, the

term ‘‘special warfare officer’’ means an officer of a uniformed service who—

(1) is qualified for a military occupational specialty or designator identified by the Secretary concerned as a special warfare military occupational specialty or designator; and

(2) is serving in a position for which that specialty or designator is authorized.

(b) RETENTION BONUS AUTHORIZED.—A special warfare officer

who meets the eligibility requirements specified in subsection (c)

and who executes a written agreement to remain on active duty in

special warfare service for at least one year may, upon the acceptance of the agreement by the Secretary concerned, be paid a retention bonus as provided in this section.

(c) ELIGIBILITY REQUIREMENTS.—A special warfare officer may

apply to enter into an agreement referred to in subsection (b) if the

officer—

(1) is in pay grade O–3, or is in pay grade O–4 and is not

on a list of officers recommended for promotion, at the time the

officer applies to enter into the agreement;

(2) has completed at least 6, but not more than 14, years

of active commissioned service; and

(3) has completed any service commitment incurred to be

commissioned as an officer.

(d) AMOUNT OF BONUS.—The amount of a retention bonus paid

under this section may not be more than $15,000 for each year covered by the agreement.

(e) PRORATION.—The term of an agreement under subsection

(b) and the amount of the retention bonus payable under subsection (d) may be prorated as long as the agreement does not extend beyond the date on which the officer executing the agreement

would complete 14 years of active commissioned service.

(f) PAYMENT METHODS.—(1) Upon acceptance of an agreement

under subsection (b) by the Secretary concerned, the total amount

payable pursuant to the agreement becomes fixed.

(2) The amount of the retention bonus may be paid as follows:

(A) At the time the agreement is accepted by the Secretary

concerned, the Secretary may make a lump sum payment

equal to half the total amount payable under the agreement.

The balance of the bonus amount shall be paid in equal annual

installments on the anniversary of the acceptance of the agreement.

(B) The Secretary concerned may make graduated annual

payments under regulations prescribed by the Secretary, with

the first payment being payable at the time the agreement is

accepted by the Secretary and subsequent payments being payable on the anniversary of the acceptance of the agreement.

(g) ADDITIONAL PAY.—A retention bonus paid under this section is in addition to any other pay and allowances to which an officer is entitled.
131 § 319 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(h) REPAYMENT.—(1) If an officer who has entered into an

agreement under subsection (b) and has received all or part of a

retention bonus under this section fails to complete the total period

of active duty in special warfare service as specified in the agreement, the Secretary concerned may require the officer to repay the

United States, on a pro rata basis and to the extent that the Secretary determines conditions and circumstances warrant, all sums

paid the officer under this section.

(2) An obligation to repay the United States imposed under

paragraph (1) is for all purposes a debt owed to the United States.

(3) A discharge in bankruptcy under title 11 that is entered

less than five years after the termination of an agreement entered

into under subsection (b) does not discharge the officer signing the

agreement from a debt arising under such agreement or under

paragraph (1).

(i) REGULATIONS.—The Secretaries concerned shall prescribe

regulations to carry out this section, including the definition of the

term ‘‘special warfare service’’ for purposes of this section. Regulations prescribed by the Secretary of a military department under

this section shall be subject to the approval of the Secretary of Defense.

(Added P.L. 106–65, § 626, Oct. 5, 1999, 113 Stat. 655; amended P.L. 107–107, § 1048(i)(7), Dec.

28, 2001, 115 Stat. 1229.)

§ 319. Special pay: surface warfare officer continuation pay

(a) ELIGIBLE SURFACE WARFARE OFFICER DEFINED.—In this

section, the term ‘‘eligible surface warfare officer’’ means an officer

of the Regular Navy or Naval Reserve on active duty who—

(1) is qualified and serving as a surface warfare officer;

(2) has been selected for assignment as a department head

on a surface vessel; and

(3) has completed any service commitment incurred

through the officer’s original commissioning program or is

within one year of completing such commitment.

(b) SPECIAL PAY AUTHORIZED.—An eligible surface warfare officer who executes a written agreement to remain on active duty to

complete one or more tours of duty to which the officer may be ordered as a department head on a surface vessel may, upon the acceptance of the agreement by the Secretary of the Navy, be paid

an amount not to exceed $50,000.

(c) PRORATION.—The term of the written agreement under subsection (b) and the amount payable under the agreement may be

prorated.

(d) PAYMENT METHODS.—Upon acceptance of the written agreement under subsection (b) by the Secretary of the Navy, the total

amount payable pursuant to the agreement becomes fixed. The Secretary shall prepare an implementation plan specifying the amount

of each installment payment under the agreement and the times

for payment of the installments.

(e) ADDITIONAL PAY.—Any amount paid under this section is in

addition to any other pay and allowances to which an officer is entitled.

(f) REPAYMENT.—(1) If an officer who has entered into a written agreement under subsection (b) and has received all or part of
§ 320 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 132

the amount payable under the agreement fails to complete the total

period of active duty as a department head on a surface vessel

specified in the agreement, the Secretary of the Navy may require

the officer to repay the United States, to the extent that the Secretary of the Navy determines conditions and circumstances warrant, any or all sums paid under this section.

(2) An obligation to repay the United States imposed under

paragraph (1) is for all purposes a debt owed to the United States.

(3) A discharge in bankruptcy under title 11 that is entered

less than five years after the termination of an agreement entered

into under subsection (b) does not discharge the officer signing the

agreement from a debt arising under such agreement or under

paragraph (1).

(g) REGULATIONS.—The Secretary of the Navy shall prescribe

regulations to carry out this section.

(Added P.L. 106–65, § 627, Oct. 5, 1999, 113 Stat. 656; amended P.L. 107–107, § 616(b), Dec.

28, 2001, 115 Stat. 1137.)

§ 320. Incentive pay: career enlisted flyers

(a) ELIGIBLE CAREER ENLISTED FLYER DEFINED.—In this section, the term ‘‘eligible career enlisted flyer’’ means an enlisted

member of the armed forces who—

(1) is entitled to basic pay under section 204 of this title,

or is entitled to pay under section 206 of this title as described

in subsection (e) of this section;

(2) holds an enlisted military occupational specialty or enlisted military rating designated as a career enlisted flyer specialty or rating by the Secretary concerned, performs duty as

a dropsonde system operator, or is in training leading to qualification and designation of such a specialty or rating or the

performance of such duty;

(3) is qualified for aviation service under regulations prescribed by the Secretary concerned; and

(4) satisfies the operational flying duty requirements applicable under subsection (c).

(b) INCENTIVE PAY AUTHORIZED.—(1) The Secretary concerned

may pay monthly incentive pay to an eligible career enlisted flyer

in an amount not to exceed the monthly maximum amounts specified in subsection (d). The incentive pay may be paid as continuous

monthly incentive pay or on a month-to-month basis, dependent

upon the operational flying duty performed by the eligible career

enlisted flyer as prescribed in subsection (c).

(2) Continuous monthly incentive pay may not be paid to an

eligible career enlisted flyer after the member completes 25 years

of aviation service. Thereafter, an eligible career enlisted flyer may

still receive incentive pay on a month-to-month basis under subsection (c)(4) for the frequent and regular performance of operational flying duty.

(c) OPERATIONAL FLYING DUTY REQUIREMENTS.—(1) An eligible

career enlisted flyer must perform operational flying duties for 6 of

the first 10, 9 of the first 15, and 14 of the first 20 years of aviation

service, to be eligible for continuous monthly incentive pay under

this section.
133 § 320 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(2) Upon completion of 10, 15, or 20 years of aviation service,

an enlisted member who has not performed the minimum required

operational flying duties specified in paragraph (1) during the prescribed period, although otherwise meeting the definition in subsection (a), may no longer be paid continuous monthly incentive

pay except as provided in paragraph (3). Payment of continuous

monthly incentive pay may be resumed if the member meets the

minimum operational flying duty requirement upon completion of

the next established period of aviation service.

(3) For the needs of the service, the Secretary concerned may

permit, on a case-by-case basis, a member to continue to receive

continuous monthly incentive pay despite the member’s failure to

perform the operational flying duty required during the first 10, 15,

or 20 years of aviation service, but only if the member otherwise

meets the definition in subsection (a) and has performed at least

5 years of operational flying duties during the first 10 years of

aviation service, 8 years of operational flying duties during the first

15 years of aviation service, or 12 years of operational flying duty

during the first 20 years of aviation service. The authority of the

Secretary concerned under this paragraph may not be delegated

below the level of the Service Personnel Chief.

(4) If the eligibility of an eligible career enlisted flyer to continuous monthly incentive pay ceases under subsection (b)(2) or paragraph (2), the member may still receive month-to-month incentive

pay for subsequent frequent and regular performance of operational flying duty. The rate payable is the same rate authorized

by the Secretary concerned under subsection (d) for a member of

corresponding years of aviation service.

(d) MONTHLY MAXIMUM RATES.—The monthly rate of any career enlisted flyer incentive pay paid under this section to a member on active duty shall be prescribed by the Secretary concerned,

but may not exceed the following:

Years of aviation service Monthly rate

4 or less ............................................................................................. $150

Over 4 ................................................................................................ $225

Over 8 ................................................................................................ $350

Over 14 .............................................................................................. $400.

(e) ELIGIBILITY OF RESERVE COMPONENT MEMBERS WHEN PERFORMING INACTIVE DUTY TRAINING.—Under regulations prescribed

by the Secretary concerned, when a member of a reserve component or the National Guard, who is entitled to compensation under

section 206 of this title, meets the definition of eligible career enlisted flyer, the Secretary concerned may increase the member’s

compensation by an amount equal to 1⁄30 of the monthly incentive

pay authorized by the Secretary concerned under subsection (d) for

a member of corresponding years of aviation service who is entitled

to basic pay under section 204 of this title. The reserve component

member may receive the increase for as long as the member is

qualified for it, for each regular period of instruction or period of

appropriate duty, at which the member is engaged for at least two

hours, or for the performance of such other equivalent training, instruction, duty or appropriate duties, as the Secretary may prescribe under section 206(a) of this title.
§ 321 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 134

(f) RELATION TO HAZARDOUS DUTY INCENTIVE PAY OR DIVING

DUTY SPECIAL PAY.—A member receiving incentive pay under section 301(a) of this title or special pay under section 304 of this title

may not be paid special pay under this section for the same period

of service.

(g) SAVE PAY PROVISION.—If, immediately before a member receives incentive pay under this section, the member was entitled to

incentive pay under section 301(a) of this title, the rate at which

the member is paid incentive pay under this section shall be equal

to the higher of the monthly amount applicable under subsection

(d) or the rate of incentive pay the member was receiving under

subsection (b) or (c)(2)(A) of section 301 of this title.

(h) SPECIALTY CODE OF DROPSONDE SYSTEM OPERATORS.— Within the Air Force, the Secretary of the Air Force shall assign

to members who are dropsonde system operators a specialty code

that identifies such members as serving in a weather specialty.

(i) DEFINITIONS.—In this section:

(1) The term ‘‘aviation service’’ means participation in aerial flight performed, under regulations prescribed by the Secretary concerned, by an eligible career enlisted flyer.

(2) The term ‘‘operational flying duty’’ means flying performed under competent orders while serving in assignments,

including an assignment as a dropsonde system operator, in

which basic flying skills normally are maintained in the performance of assigned duties as determined by the Secretary

concerned, and flying duty performed by members in training

that leads to the award of an enlisted aviation rating or military occupational specialty designated as a career enlisted flyer

rating or specialty by the Secretary concerned.

(Added P.L. 106–65, § 628, Oct. 5, 1999, 113 Stat. 657.)

§ 321. Special pay: judge advocate continuation pay

(a) ELIGIBLE JUDGE ADVOCATE DEFINED.—In this section, the

term ‘‘eligible judge advocate’’ means an officer of the armed forces

on full-time active duty who—

(1) is qualified and serving as a judge advocate, as defined

in section 801 of title 10; and

(2) has completed—

(A) the active duty service obligation incurred through

the officer’s original commissioning program; or

(B) in the case of an officer detailed under section

2004 of title 10 or section 470 of title 14, the active duty

service obligation incurred as part of that detail.

(b) SPECIAL PAY AUTHORIZED.—An eligible judge advocate who

executes a written agreement to remain on active duty for a period

of obligated service specified in the agreement may, upon the acceptance of the agreement by the Secretary concerned, be paid continuation pay under this section. The total amount paid to an officer under one or more agreements under this section may not exceed $60,000.

(c) PRORATION.—The term of an agreement under subsection

(b) and the amount payable under the agreement may be prorated.

(d) PAYMENT METHODS.—Upon acceptance of an agreement

under subsection (b) by the Secretary concerned, the total amount
135 § 322 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

payable pursuant to the agreement becomes fixed. The Secretary

shall prepare an implementation plan specifying the amount of

each installment payment under the agreement and the times for

payment of the installments.

(e) ADDITIONAL PAY.—Any amount paid to an officer under this

section is in addition to any other pay and allowances to which the

officer is entitled.

(f) REPAYMENT.—(1) If an officer who has entered into a written agreement under subsection (b) and has received all or part of

the amount payable under the agreement fails to complete the total

period of active duty specified in the agreement, the Secretary concerned may require the officer to repay the United States, to the

extent that the Secretary determines conditions and circumstances

warrant, any or all sums paid under this section.

(2) An obligation to repay the United States imposed under

paragraph (1) is for all purposes a debt owed to the United States.

(3) A discharge in bankruptcy under title 11 that is entered

less than five years after the termination of an agreement entered

into under subsection (b) does not discharge the officer signing the

agreement from a debt arising under such agreement or under

paragraph (1).

(g) REGULATIONS.—The Secretary concerned shall prescribe

regulations to carry out this section.

(Added P.L. 106–65, § 629, Oct. 5, 1999, 113 Stat. 659.)

§ 322. Special pay: 15-year career status bonus for members

entering service on or after August 1, 1986

(a) AVAILABILITY OF BONUS.—The Secretary concerned shall

pay a bonus under this section to an eligible career bonus member

if the member—

(1) elects to receive the bonus under this section; and

(2) executes a written agreement (prescribed by the Secretary concerned) to remain continuously on active duty until

the member has completed 20 years of active-duty service creditable under section 1405 of title 10.

(b) ELIGIBLE CAREER BONUS MEMBER DEFINED.—In this section, the term ‘‘eligible career bonus member’’ means a member of

a uniformed service serving on active duty who—

(1) first became a member on or after August 1, 1986; and

(2) has completed 15 years of active duty in the uniformed

services (or has received notification under subsection (e) that

the member is about to complete that duty).

(c) ELECTION METHOD.—An election under subsection (a)(1)

shall be made in such form and within such period as the Secretary

concerned may prescribe. An election under that subsection is irrevocable.

(d) AMOUNT OF BONUS; PAYMENT.—(1) A bonus under this section shall be equal to $30,000.

(2) A member electing to receive the bonus under this section

shall elect one of the following payment options:

(A) A single lump sum of $30,000.

(B) Two installments of $15,000 each.

(C) Three installments of $10,000 each.

(D) Four installments of $7,500 each.
§ 322 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 136

(E) Five installments of $6,000 each.

(3) If a member elects installment payments under paragraph

(2), the second installment (and subsequent installments, as applicable) shall be paid on the earlier of the following dates:

(A) The annual anniversary date of the payment of the

first installment.

(B) January 15 of each succeeding calendar year.

(4) The lump sum payment of the bonus, and the first installment payment in the case of members who elect to receive the

bonus in installments, shall be paid to an eligible career bonus

member not later than the first month that begins on or after the

date that is 60 days after the date on which the Secretary concerned receives from the member the election required under subsection (a)(1) and the written agreement required under subsection

(a)(2), if applicable.

(e) NOTIFICATION OF ELIGIBILITY.—(1) The Secretary concerned

shall transmit to each member who meets the definition of eligible

career bonus member a written notification of the opportunity of

the member to elect to receive a bonus under this section. The Secretary shall provide the notification not later than 180 days before

the date on which the member will complete 15 years of active

duty.

(2) The notification shall include the following:

(A) The procedures for electing to receive the bonus.

(B) An explanation of the effects under sections 1401a,

1409, and 1410 of title 10 that such an election has on the

computation of any retired or retainer pay that the member

may become eligible to receive.

(f) REPAYMENT OF BONUS.—(1) If a person paid a bonus under

this section fails to complete a period of active duty beginning on

the date on which the election of the person under subsection (a)(1)

is received and ending on the date on which the person completes

20 years of active-duty service as described in subsection (a)(2), the

person shall refund to the United States the amount that bears the

same ratio to the amount of the bonus payment as the uncompleted

part of that period of active-duty service bears to the total period

of such service.

(2) Subject to paragraph (3), an obligation to reimburse the

United States imposed under paragraph (1) is for all purposes a

debt owed to the United States.

(3) The Secretary concerned may waive, in whole or in part, a

refund required under paragraph (1) if the Secretary concerned determines that recovery would be against equity and good conscience

or would be contrary to the best interests of the United States.

(4) A discharge in bankruptcy under title 11 that is entered

less than five years after the termination of an agreement under

this section does not discharge the member signing such agreement

from a debt arising under the agreement or this subsection.

(Added P.L. 106–65, § 642, Oct. 5, 1999, 113 Stat. 662; amended P.L. 107–107, § 620(a), Dec.

28, 2001, 115 Stat. 1138.)
137 § 323 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

§ 323. Special pay: retention incentives for members qualified in a critical military skill

(a) RETENTION BONUS AUTHORIZED.—An officer or enlisted

member of the armed forces who is serving on active duty and is

qualified in a designated critical military skill may be paid a retention bonus as provided in this section if—

(1) in the case of an officer, the member executes a written

agreement to remain on active duty for at least one year; or

(2) in the case of an enlisted member, the member reenlists or voluntarily extends the member’s enlistment for a period of at least one year.

(b) DESIGNATION OF CRITICAL SKILLS.—A designated critical

military skill referred to in subsection (a) is a military skill designated as critical by the Secretary of Defense, or by the Secretary

of Homeland Security with respect to the Coast Guard when it is

not operating as a service in the Navy.

(c) PAYMENT METHODS.—A bonus under this section may be

paid in a single lump sum or in periodic installments.

(d) MAXIMUM BONUS AMOUNT.—(1) A member may enter into

an agreement under this section, or reenlist or voluntarily extend

the member’s enlistment, more than once to receive a bonus under

this section. However, a member may not receive a total of more

than $200,000 in payments under this section.

(2) The limitation in paragraph (1) on the total bonus payments that a member may receive under this section does not

apply with respect to an officer who is assigned duties as a health

care professional.

(e) CERTAIN MEMBERS INELIGIBLE.—(1) A retention bonus may

not be provided under subsection (a) to a member of the armed

forces who—

(A) has completed more than 25 years of active duty; or

(B) will complete the member’s twenty-fifth year of active

duty before the end of the period of active duty for which the

bonus is being offered.

(2) The limitations in paragraph (1) do not apply with respect

to an officer who is assigned duties as a health care professional

during the period of active duty for which the bonus is being offered.

(f ) RELATIONSHIP TO OTHER INCENTIVES.—A retention bonus

paid under this section is in addition to any other pay and allowances to which a member is entitled.

(g) REPAYMENT OF BONUS.—(1) If an officer who has entered

into a written agreement under subsection (a) fails to complete the

total period of active duty specified in the agreement, or an enlisted

member who voluntarily or because of misconduct does not complete the term of enlistment for which a bonus was paid under this

section, the Secretary of Defense, and the Secretary of Homeland

Security with respect to members of the Coast Guard when it is not

operating as a service in the Navy, may require the member to

repay the United States, on a pro rata basis and to the extent that

the Secretary determines conditions and circumstances warrant, all

sums paid under this section.
§ 324 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 138

1 Reference to ‘‘Secretary of Transportation’’ in subsection (h) probably should be to ‘‘Secretary

of Homeland Security’’.

(2) An obligation to repay the United States imposed under

paragraph (1) is for all purposes a debt owed to the United States.

(3) A discharge in bankruptcy under title 11 that is entered

less than 5 years after the termination of a written agreement entered into under subsection (a) does not discharge the member from

a debt arising under paragraph (2).

(h) ANNUAL REPORT.—Not later than February 15 of each year,

the Secretary of Defense and the Secretary of Transportation 1

shall submit to Congress a report—

(1) analyzing the effect, during the preceding fiscal year, of

the provision of bonuses under this section on the retention of

members qualified in the critical military skills for which the

bonuses were offered; and

(2) describing the intentions of the Secretary regarding the

continued use of the bonus authority during the current and

next fiscal years.

(i) TERMINATION OF BONUS AUTHORITY.—No bonus may be paid

under this section with respect to any reenlistment, or voluntary

extension of an enlistment, in the armed forces entered into after

December 31, 2004, and no agreement under this section may be

entered into after that date.

(Added P.L. 106–398, § 1 (§ 633(a)(1)), Oct. 30, 2000, 114 Stat. 1654A–157; amended P.L. 107–

107, § 614(d), Dec. 28, 2001, 115 Stat. 1136; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116 Stat.

2314; P.L. 107–314, §§ 614(d), 618, Dec. 2, 2002, 116 Stat. 2568, 2570; P.L. 108–136, § 614(d),

Nov. 24, 2003, 117 Stat. 1501; P.L. 108–136, §§ 614(d), 622, 1045(b)(1), Nov. 24, 2003, 117 Stat.

1501, 1505, 1612.)

§ 324. Special pay: accession bonus for new officers in critical skills

(a) ACCESSION BONUS AUTHORIZED.—Under regulations prescribed by the Secretary concerned, a person who executes a written agreement to accept a commission or an appointment as an officer of the armed forces and serve on active duty in a designated

critical officer skill for the period specified in the agreement may,

upon acceptance of the agreement by the Secretary concerned, be

paid an accession bonus in an amount determined by the Secretary

concerned.

(b) DESIGNATION OF CRITICAL OFFICER SKILLS.—The Secretary

concerned shall designate the critical officer skills for the purposes

of this section. A skill may be designated as a critical officer skill

for an armed force under this subsection if—

(1) in order to meet requirements of the armed force, it is

critical for the armed force to have a sufficient number of officers who are qualified in that skill; and

(2) in order to mitigate a current or projected significant

shortage of personnel in the armed force who are qualified in

that skill, it is critical to access into that armed force in sufficient numbers persons who are qualified in that skill or are to

be trained in that skill.

(c) LIMITATION ON AMOUNT OF BONUS.—The amount of an accession bonus under subsection (a) may not exceed $60,000.
139 § 325 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(d) PAYMENT METHOD.—Upon acceptance of a written agreement under subsection (a) by the Secretary concerned, the total

amount of the accession bonus payable under the agreement becomes fixed. The agreement shall specify whether the accession

bonus will be paid by the Secretary in a lump sum or installments.

(e) RELATION TO OTHER ACCESSION BONUS AUTHORITY.—An individual may not receive an accession bonus under this section and

section 302d, 302h, 302j, or 312b of this title for the same period

of service.

(f) REPAYMENT FOR FAILURE TO COMMENCE OR COMPLETE OBLIGATED SERVICE.—(1) An individual who, after having received all

or part of the accession bonus under an agreement referred to in

subsection (a), fails to accept a commission or an appointment as

an officer or to commence or complete the total period of active

duty service specified in the agreement shall repay to the United

States the amount that bears the same ratio to the total amount

of the bonus authorized for such person as the unserved part of the

period of agreed active duty service bears to the total period of the

agreed active duty service. However, the amount required to be repaid by the individual may not exceed the amount of the accession

bonus that was paid to the individual.

(2) Subject to paragraph (3), an obligation to repay the United

States imposed under paragraph (1) is for all purposes a debt owed

to the United States. A discharge in bankruptcy under title 11 that

is entered less than five years after the termination of an agreement entered into under subsection (a) does not discharge the individual signing the agreement from a debt arising under such agreement or under paragraph (1).

(3) The Secretary concerned may waive, in whole or in part,

the repayment requirement under paragraph (1) on a case-by-case

basis if the Secretary concerned determines that repayment would

be against equity and good conscience or would be contrary to the

best interests of the United States.

(g) TERMINATION OF AUTHORITY.—No agreement under this

section may be entered into after December 31, 2004.

(Added P.L. 107–107, § 621(a), Dec. 28, 2001, 115 Stat. 1139; amended P.L. 107–314, §§ 614(e),

1062(c)(2), Dec. 2, 2002, 116 Stat. 2568, 2651; P.L. 108–136, §§ 614(e), 623, Nov. 24, 2003, 117

Stat. 1502, 1505.)

§ 325. Incentive bonus: savings plan for education expenses

and other contingencies

(a) BENEFIT AND ELIGIBILITY.—The Secretary concerned may

purchase United States savings bonds under this section for a

member of the armed forces who is eligible as follows:

(1) A member who, before completing three years of service

on active duty, enters into a commitment to perform qualifying

service.

(2) A member who, after completing three years of service

on active duty, but not more than nine years of service on active duty, enters into a commitment to perform qualifying service.

(3) A member who, after completing nine years of service

on active duty, enters into a commitment to perform qualifying

service.
§ 325 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 140

(b) QUALIFYING SERVICE.—For the purposes of this section,

qualifying service is service on active duty in a specialty designated

by the Secretary concerned as critical to meet requirements

(whether or not such specialty is designated as critical to meet wartime or peacetime requirements) for a period that—

(1) is not less than six years; and

(2) does not include any part of a period for which the

member is obligated to serve on active duty under an enlistment or other agreement for which a benefit has previously

been paid under this section.

(c) FORMS OF COMMITMENT TO ADDITIONAL SERVICE.—For the

purposes of this section, a commitment means—

(1) in the case of an enlisted member, a reenlistment; and

(2) in the case of a commissioned officer, an agreement entered into with the Secretary concerned.

(d) AMOUNTS OF BONDS.—The total of the face amounts of the

United States savings bonds authorized to be purchased for a member under this section for a commitment shall be as follows:

(1) In the case of a purchase for a member under para- graph (1) of subsection (a), $5,000.

(2) In the case of a purchase for a member under paragraph (2) of subsection (a), the amount equal to the excess of

$15,000 over the total of the face amounts of any United States

savings bonds previously purchased for the member under this

section.

(3) In the case of a purchase for a member under paragraph (3) of subsection (a), the amount equal to the excess of

$30,000 over the total of the face amounts of any United States

savings bonds previously purchased for the member under this

section.

(e) TOTAL AMOUNT OF BENEFIT.—The total amount of the benefit authorized for a member when United States savings bonds are

purchased for the member under this section by reason of a commitment by that member shall be the sum of—

(1) the purchase price of the United States savings bonds;

and

(2) the amounts that would be deducted and withheld for

the payment of individual income taxes if the total amount

computed under this subsection for that commitment were paid

to the member as a bonus.

(f) AMOUNT WITHHELD FOR TAXES.—The total amount payable

for a member under subsection (e)(2) for a commitment by that

member shall be withheld, credited, and otherwise treated in the

same manner as amounts deducted and withheld from the basic

pay of the member.

(g) REPAYMENT FOR FAILURE TO COMPLETE OBLIGATED SERV- ICE.—(1) If a person fails to complete the qualifying service for

which the person is obligated under a commitment for which a benefit has been paid under this section, the person shall refund to the

United States the amount that bears the same ratio to the total

amount paid for the person (as computed under subsection (e)) for

that particular commitment as the uncompleted part of the period

of qualifying service bears to the total period of the qualifying service for which obligated.
141 § 326 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS

(2) Subject to paragraph (3), an obligation to reimburse the

United States imposed under paragraph (1) is for all purposes a

debt owed to the United States.

(3) The Secretary concerned may waive, in whole or in part, a

refund required under paragraph (1) if the Secretary concerned determines that recovery would be against equity and good conscience

or would be contrary to the best interests of the United States.

(4) A discharge in bankruptcy under title 11 that is entered

less than five years after the termination of an enlistment or other

agreement under this section does not discharge the person signing

such enlistment or other agreement from a debt arising under the

enlistment or agreement, respectively, or this subsection.

(h) RELATIONSHIP TO OTHER SPECIAL PAYS.—The benefit authorized under this section is in addition to any other bonus or incentive or special pay that is paid or payable to a member under

any other provision of this chapter for any portion of the same

qualifying service.

(i) REGULATIONS.—This section shall be administered under

regulations prescribed by the Secretary of Defense for the armed

forces under his jurisdiction and by the Secretary of Homeland Security for the Coast Guard when the Coast Guard is not operating

as a service in the Navy.

(Added P.L. 107–107, § 622(a)(1), Dec. 28, 2001, 115 Stat. 1140; amended P.L. 107–296,

§ 1704(c), Nov. 25, 2002, 116 Stat. 2314.)

§ 326. Incentive bonus: conversion to military occupational

specialty to ease personnel shortage

(a) INCENTIVE BONUS AUTHORIZED.—The Secretary concerned

may pay a bonus under this section to an eligible member of the

armed forces who executes a written agreement to convert to, and

serve for a period of not less than three years in, a military occupational specialty for which there is a shortage of trained and qualified personnel.

(b) ELIGIBLE MEMBERS.—A member is eligible to enter into an

agreement under subsection (a) if—

(1) the member is entitled to basic pay; and

(2) at the time the agreement is executed, the member is

serving in—

(A) pay grade E–6, with not more than 10 years of

service computed under section 205 of this title; or

(B) pay grade E–5 or below, regardless of years of

service.

(c) AMOUNT AND PAYMENT OF BONUS.—(1) A bonus under this

section may not exceed $4,000.

(2) A bonus payable under this section shall be disbursed in

one lump sum when the member’s conversion to the military occupational specialty is approved by the chief personnel officer of the

member’s armed force.

(d) RELATIONSHIP TO OTHER PAY AND ALLOWANCES.—A bonus

paid to a member under this section is in addition to any other pay

and allowances to which the member is entitled.

(e) REPAYMENT OF BONUS.—(1) A member who receives a

bonus under this section and who, voluntarily or because of misconduct, fails to serve in such military occupational specialty for
§ 326 TITLE 37—CH. 5—SPECIAL AND INCENTIVE PAYS 142

the period specified in the agreement executed under subsection (a)

shall refund to the United States an amount that bears the same

ratio to the bonus amount paid to the member as the unserved part

of such period bears to the total period agreed to be served.

(2) An obligation to reimburse the United States imposed

under paragraph (1) is, for all purposes, a debt owed to the United

States.

(3) A discharge in bankruptcy under title 11 that is entered

less than five years after the termination of the agreement for

which a bonus was paid under this section shall not discharge the

person signing such agreement from the debt arising under paragraph (1).

(4) Under regulations prescribed pursuant to subsection (f), the

Secretary concerned may waive, in whole or in part, a refund required under paragraph (1) if the Secretary determines that recovery would be against equity and good conscience or would be contrary to the best interests of the United States.

(f) REGULATIONS.—The Secretaries concerned shall prescribe

regulations to carry out this section. Regulations prescribed by the

Secretary of a military department shall be subject to the approval

of the Secretary of Defense.

(g) TERMINATION OF AUTHORITY.—No agreement under this

section may be entered into after December 31, 2006.

(Added P.L. 108–136, § 625(a), Nov. 24, 2003, 117 Stat. 1506.)
143

CHAPTER 7—ALLOWANCES

Sec.

401. Definitions.

402. Basic allowance for subsistence.

402a. Supplemental subsistence allowance for low-income members with dependents.

403. Basic allowance for housing.

403b. Cost-of-living allowance in the continental United States.

404. Travel and transportation allowances: general.

404a. Travel and transportation allowances: temporary lodging expenses.

404b. Travel and transportation allowances: lodging expenses at temporary duty

location for members on authorized leave.

405. Travel and transportation allowances: per diem while on duty outside the

United States or in Hawaii or Alaska.

405a. Travel and transportation allowances: departure allowances.

406. Travel and transportation allowances: dependents; baggage and household

effects.

406a. Travel and transportation allowances: authorized for travel performed

under orders that are canceled, revoked, or modified.

406b. Travel and transportation allowances: members of the uniformed services

attached to a ship overhauling or inactivating.

406c. Travel and Transportation allowances: members assigned to a vessel under

construction.

407. Travel and transportation allowances: dislocation allowance.

408. Travel and transportation allowances: travel within limits of duty station.

409. Travel and transportation allowances: house trailers and mobile homes.

410. Travel and transportation allowances: miscellaneous categories.

411. Travel and transportation allowances: administrative provisions.

411a. Travel and transportation allowances: travel performed in connection with

convalescent leave.

411b. Travel and transportation allowances: travel performed in connection with

leave between consecutive overseas tours.

411c. Travel and transportation allowances: travel performed in connection with

rest and recuperative leave from certain stations in foreign countries.

411d. Travel and transportation allowances: transportation inciI42411e. Travel

and transportation allowances: transportation incident to certain emergencies for members performing temporary duty.

411f. Travel and transportation allowances: transportation for survivors of

deceased member to attend the member’s burial ceremonies.

411g. Travel and transportation allowances: transportation incident to voluntary

extensions of overseas tours of duty.

411h. Travel and transportation allowances: transportation of family members

incident to the serious illness or injury of members.

411i. Travel and transportation allowances: parking expenses.

412. Appropriations for travel: may not be used for attendance at certain

meetings.

413. Chairman and Vice Chairman of the Joint Chiefs of Staff.

414. Personal money allowance.

415. Uniform allowance: officers; initial allowance.

416. Uniform allowance: officers; additional allowances.

417. Uniform allowance: officers; general provisions.

418. Clothing allowance: enlisted members.

419. Civilian clothing allowance.

420. Allowances while participating in international sports.

421. Allowances: no increase while dependent is entitled to basic pay.

422. Cadets and midshipmen.

423. Validity of allowance payments based on purported marriages.

424. Band leaders.
TITLE 37—CH. 7—ALLOWANCES 144

425. United States Navy Band; United States Marine Corps Band: allowances

while on concert tour.

[426. Repealed.]

427. Family separation allowance.

428. Allowance for recruiting expenses.

429. Travel and transportation allowances: minor dependent schooling.

430. Travel and transportation: dependent children of members stationed

overseas.

431. Benefits for certain members assigned to the Defense Intelligence Agency.

432. Travel and transportation: members escorting certain dependents.

433. Allowance for muster duty.

434. Subsistence reimbursement relating to escorts of foreign arms control inspection teams.

435. Funeral honors duty: allowance.

436. High-deployment allowance: lengthy or numerous deployments; frequent

mobilizations.

§ 401. Definitions

(a) DEPENDENT DEFINED.—In this chapter, the term ‘‘dependent’’, with respect to a member of a uniformed service, means the

following persons:

(1) The spouse of the member.

(2) An unmarried child of the member who—

(A) is under 21 years of age;

(B) is incapable of self-support because of mental or

physical incapacity and is in fact dependent on the member for more than one-half of the child’s support; or

(C) is under 23 years of age, is enrolled in a full-time

course of study in an institution of higher education approved by the Secretary concerned for purposes of this subparagraph, and is in fact dependent on the member for

more than one-half of the child’s support.

(3) A parent of the member if—

(A) the parent is in fact dependent on the member for

more than one-half of the parent’s support;

(B) the parent has been so dependent for a period prescribed by the Secretary concerned or became so dependent

due to a change of circumstances arising after the member

entered on active duty; and

(C) the dependency of the parent on the member is determined on the basis of an affidavit submitted by the parent and any other evidence required under regulations prescribed by the Secretary concerned.

(4) An unmarried person who—

(A) is placed in the legal custody of the member as a

result of an order of a court of competent jurisdiction in

the United States (or Puerto Rico or a possession of the

United States) for a period of at least 12 consecutive

months;

(B) either—

(i) has not attained the age of 21;

(ii) has not attained the age of 23 years and is enrolled in a full time course of study at an institution

of higher learning approved by the Secretary concerned; or

(iii) is incapable of self support because of a mental or physical incapacity that occurred while the per-
145 § 402 TITLE 37—CH. 7—ALLOWANCES

son was considered a dependent of the member or

former member under this paragraph pursuant to

clause (i) or (ii);

(C) is dependent on the member for over one-half of

the person’s support;

(D) resides with the member unless separated by the

necessity of military service or to receive institutional care

as a result of disability or incapacitation or under such

other circumstances as the Secretary concerned may by

regulation prescribe; and

(E) is not a dependent of a member under any other

paragraph.

(b) OTHER DEFINITIONS.—For purposes of subsection (a):

(1) The term ‘‘child’’ includes—

(A) a stepchild of the member (except that such term

does not include a stepchild after the divorce of the member from the stepchild’s parent by blood);

(B) an adopted child of the member, including a child

placed in the home of the member by a placement agency

(recognized by the Secretary of Defense) in anticipation of

the legal adoption of the child by the member; and

(C) an illegitimate child of the member if the member’s parentage of the child is established in accordance

with criteria prescribed in regulations by the Secretary

concerned.

(2) The term ‘‘parent’’ means—

(A) a natural parent of the member;

(B) a stepparent of the member;

(C) a parent of the member by adoption;

(D) a parent, stepparent, or adopted parent of the

spouse of the member; and

(E) any other person, including a former stepparent,

who has stood in loco parentis to the member at any time

for a continuous period of at least five years before the

member became 21 years of age.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 469; amended P.L. 93–64, §§ 103, 104, July 9, 1973, 87 Stat.

148; P.L. 100–26, § 8(e)(7), Apr. 21, 1987, 101 Stat. 286; P.L. 102–190, § 621, Dec. 5, 1991, 105

Stat. 1377; P.L. 103–160, § 631(a), Nov. 30, 1993, 107 Stat. 1683; P.L. 103–337, § 701(b), Oct.

5, 1994, 108 Stat. 2797.)

§ 402. Basic allowance for subsistence

(a) ENTITLEMENT TO ALLOWANCE.—(1) Except as provided in

paragraph (2) or otherwise provided by law, each member of a uniformed service who is entitled to basic pay is entitled to a basic allowance for subsistence as set forth in this section.

(2) An enlisted member is not entitled to the basic allowance

for subsistence during basic training.

(b) RATES OF ALLOWANCE BASED ON FOOD COSTS.—(1) The

monthly rate of basic allowance for subsistence to be in effect for

an enlisted member for a year (beginning on January 1 of that

year) shall be equal to the sum of—

(A) the monthly rate of basic allowance for subsistence

that was in effect for an enlisted member for the preceding

year; plus
§ 402 TITLE 37—CH. 7—ALLOWANCES 146

(B) the product of the monthly rate under subparagraph

(A) and the percentage increase in the monthly cost of a liberal

food plan for a male in the United States who is between 20

and 50 years of age over the preceding fiscal year, as determined by the Secretary of Agriculture each October 1.

(2) The monthly rate of basic allowance for subsistence to be

in effect for an officer for a year (beginning on January 1 of that

year) shall be the amount equal to the monthly rate of basic allowance for subsistence in effect for officers for the preceding year, increased by the same percentage by which the rate of basic allowance for subsistence for enlisted members for the preceding year is

increased effective on such January 1.

(3) For purposes of implementing paragraph (1), the monthly

rate of basic allowance for subsistence that was in effect for an enlisted member for calendar year 2001 is deemed to be $233.

(c) ADVANCE PAYMENT.—The allowance to an enlisted member

may be paid in advance for a period of not more than three

months.

(d) SPECIAL RATE FOR ENLISTED MEMBERS OCCUPYING SINGLE

QUARTERS WITHOUT ADEQUATE AVAILABILITY OF MEALS.—The Secretary of Defense, and the Secretary of the department in which

the Coast Guard is operating, may pay an enlisted member the

basic allowance for subsistence under this section at a monthly rate

that is twice the amount in effect under subsection (b)(1) while—

(1) the member is assigned to single Government quarters

which have no adequate food storage or preparation facility in

the quarters; and

(2) there is no Government messing facility serving those

quarters that is capable of making meals available to the occupants of the quarters.

(e) SPECIAL RULE FOR CERTAIN ENLISTED RESERVE MEMBERS.—Unless entitled to basic pay under section 204 of this title,

an enlisted member of a reserve component may receive, at the discretion of the Secretary concerned, rations in kind, or a part thereof, when the member’s instruction or duty periods, as described in

section 206(a) of this title, total at least 8 hours in a calendar day.

The Secretary concerned may provide an enlisted member who

could be provided rations in kind under the preceding sentence

with a commutation when rations in kind are not available.

(f) SPECIAL RULE FOR HIGH-COST DUTY LOCATIONS AND OTHER

UNIQUE AND UNUSUAL CIRCUMSTANCES.—The Secretary of Defense

may authorize a member of the armed forces who is not entitled

to the meals portion of the per diem in connection with an assignment in a high-cost duty location or under other unique and unusual circumstances, as determined by the Secretary, to receive

any or all of the following:

(1) Meals at no cost to the member, regardless of the entitlement of the member to a basic allowance for subsistence

under subsection (a).

(2) A basic allowance for subsistence at the standard rate,

regardless of the entitlement of the member for all meals or select meals during the duty day.

(3) A supplemental subsistence allowance at a rate higher

than the basic allowance for subsistence rates in effect under
147 § 402a TITLE 37—CH. 7—ALLOWANCES

this section, regardless of the entitlement of the member for all

meals or select meals during the duty day.

(g) POLICIES ON USE OF DINING AND MESSING FACILITIES.—The

Secretary of Defense, in consultation with the Secretaries concerned, shall prescribe policies regarding use of dining and field

messing facilities of the uniformed services.

(h) REGULATIONS.—(1) The Secretary of Defense shall prescribe

regulations for the administration of this section. Before prescribing the regulations, the Secretary shall consult with each Secretary concerned.

(2) The regulations shall include the specific rates of basic allowance for subsistence required by subsection (b).

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 470; amended P.L. 89–444, § 2(2), June 9, 1966, 80 Stat.

198; P.L. 93–419, § 3(1)–(5), Sept. 19, 1974, 88 Stat. 1152; P.L. 96–513, § 411, Dec. 12, 1980,

94 Stat. 2905; P.L. 98–94, § 908(a), Sept. 24, 1983, 97 Stat. 637; P.L. 98–525, § 605, Oct. 19,

1984, 98 Stat. 2537; P.L. 98–557, § 17(d), Oct. 30, 1984, 98 Stat. 2868; P.L. 99–145, § 1303(b)(5),

Nov. 8, 1985, 99 Stat. 740, P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 104–106,

§ 602(a)–(c)(1), Feb. 10, 1996, 110 Stat. 356, 357; P.L. 105–85, § 602(a), Nov. 18, 1997, 111 Stat.

1771; P.L. 105–261, § 604(a), Oct. 16, 1998, 112 Stat. 2037; P.L. 106–398, § 1 (§ 603)), Oct. 30,

2000, 114 Stat. 1654A–144; P.L. 107–107, § 604(a), Dec. 28, 2001, 115 Stat. 1133; P.L. 107–296,

§ 1704(c), Nov. 25, 2002, 116 Stat. 2314; P.L. 107–314, § 603, Dec. 2, 2002, 116 Stat. 2566; P.L.

108–136, §§ 604, 1045(b)(2), Nov. 24, 2003, 117 Stat. 1499, 1612.)

§ 402a. Supplemental subsistence allowance for low-income

members with dependents

(a) SUPPLEMENTAL ALLOWANCE REQUIRED.—(1) The Secretary

concerned shall increase the basic allowance for subsistence to

which a member of the armed forces described in subsection (b) is

otherwise entitled under section 402 of this title by an amount (in

this section referred to as the ‘‘supplemental subsistence allowance’’) designed to remove the member’s household from eligibility

for benefits under the food stamp program.

(2) The supplemental subsistence allowance may not exceed

$500 per month. In establishing the amount of the supplemental

subsistence allowance to be paid an eligible member under this

paragraph, the Secretary shall take into consideration the amount

of the basic allowance for housing that the member receives under

section 403 of this title or would otherwise receive under such section, in the case of a member who is not entitled to that allowance

as a result of assignment to quarters of the United States or a

housing facility under the jurisdiction of a uniformed service.

(3) In the case of a member described in subsection (b) who establishes to the satisfaction of the Secretary concerned that the allotment of the member’s household under the food stamp program,

calculated in the absence of the supplemental subsistence allowance, would exceed the amount established by the Secretary concerned under paragraph (2), the amount of the supplemental subsistence allowance for the member shall be equal to the lesser of

the following:

(A) The value of that allotment.

(B) $500.

(b) MEMBERS ENTITLED TO ALLOWANCE.—(1) Subject to subsection (d), a member of the armed forces with dependents is entitled to receive the supplemental subsistence allowance if the Secretary concerned determines that the member’s income, together

with the income of the rest of the member’s household (if any), is
§ 402a TITLE 37—CH. 7—ALLOWANCES 148

1 Reference to ‘‘Secretary of Transportation’’ in subsection (h) probably should be to ‘‘Secretary

of Homeland Security’’.

within the highest income standard of eligibility, as then in effect

under section 5(c) of the Food Stamp Act of 1977 (7 U.S.C. 2014(c))

and without regard to paragraph (1) of such section, for participation in the food stamp program.

(2) In determining whether a member meets the eligibility criteria under paragraph (1), the Secretary—

(A) shall not take into consideration the amount of the

supplemental subsistence allowance payable under this section;

but

(B) shall take into consideration the amount of the basic

allowance for housing that the member receives under section

403 of this title or would otherwise receive under such section,

in the case of a member who is not entitled to that allowance

as a result of assignment to quarters of the United States or

a housing facility under the jurisdiction of a uniformed service.

(c) APPLICATION FOR ALLOWANCE.—To request the supplemental subsistence allowance, a member shall submit an application to the Secretary concerned in such form and containing such

information as the Secretary concerned may prescribe. A member

applying for the supplemental subsistence allowance shall furnish

such evidence regarding the member’s satisfaction of the eligibility

criteria under subsection (b) as the Secretary concerned may require.

(d) EFFECTIVE PERIOD.—The entitlement of a member to receive the supplemental subsistence allowance terminates upon the

occurrence of any of the following events, even though the member

continues to meet the eligibility criteria described in subsection (b):

(1) Payment of the supplemental subsistence allowance for

12 consecutive months.

(2) Promotion of the member to a higher grade.

(3) Transfer of the member in a permanent change of station.

(e) REAPPLICATION.—Upon the termination of the effective period of the supplemental subsistence allowance for a member, or in

anticipation of the imminent termination of the allowance, a member may reapply for the allowance under subsection (c), and the

Secretary concerned shall approve the application and resume payment of the allowance to the member, if the member continues to

meet, or once again meets, the eligibility criteria described in subsection (b).

(f ) REPORTING REQUIREMENT.—Not later than March 1 of each

year after 2001, the Secretary of Defense shall submit to Congress

a report specifying the number of members of the armed forces who

received, at any time during the preceding year, the supplemental

subsistence allowance. In preparing the report, the Secretary of Defense shall consult with the Secretary of Transportation 1. No report is required under this subsection after March 1, 2006.

(g) DEFINITIONS.—In this section:

(1) The term ‘‘Secretary concerned’’ means—

(A) the Secretary of Defense; and
149 § 403 TITLE 37—CH. 7—ALLOWANCES

1Section 603(b) of the National Defense Authorization Act for Fiscal Year 1998 (Public Law

105–85, approved November 18, 1997; 37 U.S.C. 403 note), as amended by section 605(e) of the

Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 (as enacted by Public

Law 106–398; 114 Stat. 1654A–148), provides as follows:

(b) TRANSITION TO BASIC ALLOWANCE FOR HOUSING.—The Secretary of Defense shall develop

and implement a plan to incrementally manage the rate of growth of the various components

of the basic allowance for housing authorized by section 403 of title 37, United States Code (as

amended by subsection (a)), during a transition period of not more than eight years. During the

transition period, the Secretary may continue to use the authorities provided under sections 403,

403a, 405(b), and 427(a) of title 37, United States Code (as in effect on the day before the date

of the enactment of this Act), but subject to such modifications as the Secretary considers necessary, to provide allowances for members of the uniformed services.

(B) the Secretary of Homeland Security, with respect

to the Coast Guard when it is not operating as a service

in the Navy.

(2) The terms ‘‘allotment’’ and ‘‘household’’ have the meanings given those terms in section 3 of the Food Stamp Act of

1977 (7 U.S.C. 2012).

(3) The term ‘‘food stamp program’’ means the program established pursuant to section 4 of the Food Stamp Act of 1977

(7 U.S.C. 2013).

(h) TERMINATION OF AUTHORITY.—No supplemental subsistence

allowance may be provided under this section after September 30,

2006.

(Added P.L. 106–398, § 1 (§ 604), Oct. 30, 2000, 114 Stat. 1654A–145; amended P.L. 107–107,

§ 604(d), Dec. 28, 2001, 115 Stat. 1134; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314.)

§ 403. Basic allowance for housing 1

(a) GENERAL ENTITLEMENT.—(1) Except as otherwise provided

by law, a member of a uniformed service who is entitled to basic

pay is entitled to a basic allowance for housing at the monthly

rates prescribed under this section or another provision of law with

regard to the applicable component of the basic allowance for housing. The amount of the basic allowance for housing for a member

will vary according to the pay grade in which the member is assigned or distributed for basic pay purposes, the dependency status

of the member, and the geographic location of the member. The

basic allowance for housing may be paid in advance.

(2) A member of a uniformed service with dependents is not

entitled to a basic allowance for housing as a member with dependents unless the member makes a certification to the Secretary concerned indicating the status of each dependent of the member. The

certification shall be made in accordance with regulations prescribed by the Secretary of Defense.

(b) BASIC ALLOWANCE FOR HOUSING INSIDE THE UNITED

STATES.—(1) The Secretary of Defense shall prescribe the rates of

the basic allowance for housing that are applicable for the various

military housing areas in the United States. The rates for an area

shall be based on the costs of adequate housing determined for the

area under paragraph (2).

(2) The Secretary of Defense shall determine the costs of adequate housing in a military housing area in the United States for

all members of the uniformed services entitled to a basic allowance

for housing in that area. The Secretary shall base the determination upon the costs of adequate housing for civilians with comparable income levels in the same area. After June 30, 2001, the
§ 403 TITLE 37—CH. 7—ALLOWANCES 150

Secretary may not differentiate between members with dependents

in pay grades E–1 through E–4 in determining what constitutes

adequate housing for members.

(3) The total amount that may be paid for a fiscal year for the

basic allowance for housing under this subsection may not be less

than the product of—

(A) the total amount authorized to be paid for such allowance for the preceding fiscal year; and

(B) a fraction—

(i) the numerator of which is the index of the national

average monthly cost of housing for June of the preceding

fiscal year; and

(ii) the denominator of which is the index of the national average monthly cost of housing for June of the second preceding fiscal year.

(4) An adjustment in the rates of the basic allowance for housing under this subsection as a result of the Secretary’s redetermination of housing costs in an area shall take effect on the same

date as the effective date of the next increase in basic pay under

section 1009 of this title or other provision of law.

(5) On and after July 1, 2001, the Secretary of Defense shall

establish a single monthly rate for members of the uniformed services with dependents in pay grades E–1 through E–4 in the same

military housing area. The rate shall be consistent with the rates

paid to members in pay grades other than pay grades E–1 through

E–4 and shall be based on the following:

(A) The average cost of a two-bedroom apartment in that

military housing area.

(B) One-half of the difference between the average cost of

a two-bedroom townhouse in that area and the amount determined in subparagraph (A).

(6) So long as a member of a uniformed service retains uninterrupted eligibility to receive a basic allowance for housing within an

area of the United States, the monthly amount of the allowance for

the member may not be reduced as a result of changes in housing

costs in the area or the promotion of the member.

(c) BASIC ALLOWANCE FOR HOUSING OUTSIDE THE UNITED

STATES.—(1) The Secretary of Defense may prescribe an overseas

basic allowance for housing for a member of a uniformed service

who is on duty outside of the United States. The Secretary shall

establish the basic allowance for housing under this subsection on

the basis of housing costs in the overseas area in which the member is assigned.

(2) So long as a member of a uniformed service retains uninterrupted eligibility to receive a basic allowance for housing in an

overseas area and the actual monthly cost of housing for the member is not reduced, the monthly amount of the allowance in an area

outside the United States may not be reduced as a result of

changes in housing costs in the area or the promotion of the member. The monthly amount of the allowance may be adjusted to reflect changes in currency rates.

(3)(A) In the case of a member of the uniformed services authorized to receive an allowance under paragraph (1), the Secretary

concerned may make a lump-sum payment to the member for re-
151 § 403 TITLE 37—CH. 7—ALLOWANCES

quired deposits and advance rent, and for expenses relating thereto, that are—

(i) incurred by the member in occupying private housing

outside of the United States; and

(ii) authorized or approved under regulations prescribed by

the Secretary concerned.

(B) Expenses for which a member may be reimbursed under

this paragraph may include losses relating to housing that are sustained by the member as a result of fluctuations in the relative

value of the currencies of the United States and the foreign country

in which the housing is located.

(C) The Secretary concerned shall recoup the full amount of

any deposit or advance rent payments made by the Secretary under

subparagraph (A), including any gain resulting from currency fluctuations between the time of payment and the time of recoupment.

(d) BASIC ALLOWANCE FOR HOUSING WHEN DEPENDENTS ARE

UNABLE TO ACCOMPANY MEMBER.—(1) A member of a uniformed

service with dependents who is on permanent duty at a location described in paragraph (2) is entitled to a family separation basic allowance for housing under this subsection at a monthly rate equal

to the rate of the basic allowance for housing established under

subsection (b) or the overseas basic allowance for housing established under subsection (c), whichever applies to that location, for

members in the same grade at that location without dependents.

(2) A permanent duty location referred to in paragraph (1) is

a location—

(A) to which the movement of the member’s dependents is

not authorized at the expense of the United States under section 406 of this title, and the member’s dependents do not reside at or near the location; and

(B) at which quarters of the United States are not available for assignment to the member.

(3) If a member with dependents is assigned to duty in an area

that is different from the area in which the member’s dependents

reside, the member is entitled to a basic allowance for housing as

provided in subsection (b) or (c), whichever applies to the member,

subject to the following:

(A) If the member’s assignment to duty in that area, or the

circumstances of that assignment, require the member’s dependents to reside in a different area, as determined by the

Secretary concerned, the amount of the basic allowance for

housing for the member shall be based on the area in which

the dependents reside or the member’s last duty station,

whichever the Secretary concerned determines to be most equitable.

(B) If the member’s assignment to duty in that area is

under the conditions of a low-cost or no-cost permanent change

of station or permanent change of assignment, the amount of

the basic allowance for housing for the member shall be based

on the member’s last duty station if the Secretary concerned

determines that it would be inequitable to base the allowance

on the cost of housing in the area to which the member is reassigned.
§ 403 TITLE 37—CH. 7—ALLOWANCES 152

(4) The family separation basic allowance for housing under

this subsection shall be in addition to any other allowance or per

diem that the member is otherwise entitled to receive under this

title. A member may receive a basic allowance for housing under

both paragraphs (1) and (3).

(e) EFFECT OF ASSIGNMENT TO QUARTERS.—(1) Except as otherwise provided by law, a member of a uniformed service who is assigned to quarters of the United States or a housing facility under

the jurisdiction of a uniformed service appropriate to the grade,

rank, or rating of the member and adequate for the member and

dependents of the member, if with dependents, is not entitled to a

basic allowance for housing.

(2) A member without dependents who is in a pay grade above

pay grade E–6 and who is assigned to quarters in the United

States or a housing facility under the jurisdiction of a uniformed

service, appropriate to the grade or rank of the member and adequate for the member, may elect not to occupy those quarters and

instead to receive the basic allowance for housing prescribed for the

member’s pay grade by this section.

(3) A member without dependents who is in pay grade E–6 and

who is assigned to quarters of the United States that do not meet

the minimum adequacy standards established by the Secretary of

Defense for members in such pay grade, or to a housing facility

under the jurisdiction of a uniformed service that does not meet

such standards, may elect not to occupy such quarters or facility

and instead to receive the basic allowance for housing prescribed

for the member’s pay grade under this section.

(4) The Secretary concerned may deny the right to make an

election under paragraph (2) or (3) if the Secretary determines that

the exercise of such an election would adversely affect a training

mission, military discipline, or military readiness.

(5) A member with dependents who is assigned to quarters of

the United States or a housing facility under the jurisdiction of a

uniformed service may be paid the basic allowance for housing if,

because of orders of competent authority, the dependents are prevented from occupying those quarters.

(f) INELIGIBILITY DURING INITIAL FIELD DUTY OR SEA DUTY.—

(1) A member of a uniformed service without dependents who

makes a permanent change of station for assignment to a unit conducting field operations is not entitled to a basic allowance for

housing while on that initial field duty unless the commanding officer of the member certifies that the member was necessarily required to procure quarters at the member’s expense.

(2)(A) Except as provided in subparagraphs (B) and (C), a

member of a uniformed service without dependents who is in a pay

grade below pay grade E–6 is not entitled to a basic allowance for

housing while the member is on sea duty.

(B) Under regulations prescribed by the Secretary concerned,

the Secretary may authorize the payment of a basic allowance for

housing to a member of a uniformed service without dependents

who is serving in pay grade E–4 or E–5 and is assigned to sea

duty. In prescribing regulations under this subparagraph, the Secretary concerned shall consider the availability of quarters for

members serving in grades E–4 and E–5.
153 § 403 TITLE 37—CH. 7—ALLOWANCES

(C) Notwithstanding section 421 of this title, two members of

the uniformed services in a pay grade below pay grade E–6 who

are married to each other, have no other dependents, and are simultaneously assigned to sea duty are each entitled to a basic allowance for housing during the period of such simultaneous sea

duty. The amount of the allowance payable to a member under the

preceding sentence shall be based on the without dependents rate

for the pay grade of the member.

(3) The Secretary of Defense, and the Secretary of Homeland

Security with respect to the Coast Guard when it is not operating

as a service in the Department of the Navy, shall prescribe regulations defining the terms ‘‘field duty’’ and ‘‘sea duty’’ for purposes of

this section.

(g) RESERVE MEMBERS.—(1) A member of a reserve component

without dependents who is called or ordered to active duty in support of a contingency operation, or a retired member without dependents who is ordered to active duty under section 688(a) of title

10 in support of a contingency operation, may not be denied a basic

allowance for housing if, because of that call or order, the member

is unable to continue to occupy a residence—

(A) which is maintained as the primary residence of the

member at the time of the call or order; and

(B) which is owned by the member or for which the member is responsible for rental payments.

(2) Paragraph (1) shall not apply if the member is authorized

transportation of household goods under section 406 of this title as

part of the call or order to active duty described in such paragraph.

(3) The Secretary of Defense shall establish a rate of basic allowance for housing to be paid to a member of a reserve component

while the member serves on active duty under a call or order to

active duty specifying a period of less than 140 days, unless the

call or order to active duty is in support of a contingency operation.

(h) RENTAL OF PUBLIC QUARTERS.—Notwithstanding any other

law (including those restricting the occupancy of housing facilities

under the jurisdiction of a department or agency of the United

States by members, and their dependents, of the armed forces

above specified grades, or by members, and their dependents, of the

National Oceanic and Atmospheric Administration and the Public

Health Service), a member of a uniformed service, and the dependents of the member, may be accepted as tenants in, and may occupy on a rental basis, any of those housing facilities, other than

public quarters constructed or designated for assignment to an occupancy without charge by such a member and the dependents of

the member, if any. Such a member may not, because of occupancy

under this subsection, be deprived of any money allowance to

which the member is otherwise entitled for the rental of quarters.

(i) TEMPORARY HOUSING ALLOWANCE WHILE IN TRAVEL OR

LEAVE STATUS.—A member of a uniformed service is entitled to a

temporary basic allowance for housing (at a rate determined by the

Secretary of Defense) while the member is in a travel or leave status between permanent duty stations, including time granted as

delay en route or proceed time, when the member is not assigned

to quarters of the United States.
§ 403 TITLE 37—CH. 7—ALLOWANCES 154

(j) AVIATION CADETS.—The eligibility of an aviation cadet of

the Navy, Air Force, Marine Corps, or Coast Guard for a basic allowance for housing shall be determined as if the aviation cadet

were a member of the uniformed services in pay grade E–4.

(k) ADMINISTRATION.—(1) The Secretary of Defense shall prescribe regulations for the administration of this section.

(2) The Secretary concerned may make such determinations as

may be necessary to administer this section, including determinations of dependency and relationship. When warranted by the circumstances, the Secretary concerned may reconsider and change or

modify any such determination. The authority of the Secretary concerned under this subsection may be delegated. Any determination

made under this section with regard to a member of the uniformed

services is final and is not subject to review by any accounting officer of the United States or a court, unless there is fraud or gross

negligence.

(3) Parking facilities (including utility connections) provided

members of the uniformed services for house trailers and mobile

homes not owned by the Government shall not be considered to be

quarters for the purposes of this section or any other provision of

law. Any fees established by the Government for the use of such

a facility shall be established in an amount sufficient to cover the

cost of maintenance, services, and utilities and to amortize the cost

of construction of the facility over the 25-year period beginning

with the completion of such construction.

(l) TEMPORARY CONTINUATION OF ALLOWANCE FOR DEPENDENTS

OF MEMBERS DYING ON ACTIVE DUTY.—(1) The Secretary of Defense, or the Secretary of Homeland Security in the case of the

Coast Guard when not operating as a service in the Navy, may

allow the dependents of a member of the armed forces who dies on

active duty and whose dependents are occupying family housing

provided by the Department of Defense, or by the Department of

Homeland Security in the case of the Coast Guard, other than on

a rental basis on the date of the member’s death to continue to occupy such housing without charge for a period of 180 days.

(2) The Secretary concerned may pay a basic allowance for

housing (at the rate that is payable for members of the same grade

and dependency status as the deceased member for the area where

the dependents are residing) to the dependents of a member of the

uniformed services who dies while on active duty and whose

dependents—

(A) are not occupying a housing facility under the jurisdiction of a uniformed service on the date of the member’s death;

(B) are occupying such housing on a rental basis on such

date; or

(C) vacate such housing sooner than 180 days after the

date of the member’s death.

(3) The payment of the allowance under paragraph (2) shall

terminate 180 days after the date of the member’s death.

(m) MEMBERS PAYING CHILD SUPPORT.—(1) A member of a uniformed service with dependents may not be paid a basic allowance

for housing at the with dependents rate solely by reason of the payment of child support by the member if—
155 § 403 TITLE 37—CH. 7—ALLOWANCES

(A) the member is assigned to a housing facility under the

jurisdiction of a uniformed service; or

(B) the member is assigned to sea duty, and elects not to

occupy assigned quarters for unaccompanied personnel, unless

the member is in a pay grade above E–3.

(2) A member of a uniformed service assigned to quarters of

the United States or a housing facility under the jurisdiction of a

uniformed service who is not otherwise authorized a basic allowance for housing and who pays child support is entitled to the basic

allowance for housing differential, except for months for which the

amount payable for the child support is less than the rate of the

differential. Payment of a basic allowance for housing differential

does not affect any entitlement of the member to a partial allowance for quarters under subsection (n).

(3) The basic allowance for housing differential to which a

member is entitled under paragraph (2) is the amount equal to the

difference between—

(A) the rate of the basic allowance for quarters (with dependents) for the member’s pay grade, as such rate was in effect on December 31, 1997, under this section (as in effect on

that date); and

(B) the rate of the basic allowance for quarters (without

dependents) for the member’s pay grade, as such rate was in

effect on December 31, 1997, under this section (as in effect on

that date).

(4) Whenever the rates of basic pay for members of the uniformed services are increased, the monthly amount of the basic allowance for housing differential computed under paragraph (3)

shall be increased by the average percentage increase in the rates

of basic pay. The effective date of the increase shall be the same

date as the effective date of the increase in the rates of basic pay.

(5) In the case of two members, who have one or more common

dependents (and no others), who are not married to each other, and

one of whom pays child support to the other, the amount of the

basic allowance for housing paid to each member under this section

shall be reduced in accordance with regulations prescribed by the

Secretary of Defense. The total amount of the basic allowances for

housing paid to the two members may not exceed the sum of the

amounts of the allowance to which each member would be otherwise entitled under this section.

(n) PARTIAL ALLOWANCE FOR MEMBERS WITHOUT DEPENDENTS.—(1) A member of a uniformed service without dependents

who is not entitled to receive a basic allowance for housing under

subsection (b), (c), or (d) is entitled to a partial basic allowance for

housing at a rate determined by the Secretary of Defense under

paragraph (2).

(2) The rate of the partial basic allowance for housing is the

partial rate of the basic allowance for quarters for the member’s

pay grade as such partial rate was in effect on December 31, 1997,

under section 1009(c)(2) of this title (as such section was in effect

on such date).

(o) TREATMENT OF LOW-COST AND NO-COST MOVES AS NOT

BEING REASSIGNMENTS.—In the case of a member who is assigned

to duty at a location or under circumstances that make it necessary
§ 403b TITLE 37—CH. 7—ALLOWANCES 156

for the member to be reassigned under the conditions of low-cost

or no-cost permanent change of station or permanent change of assignment, the member may be treated for the purposes of this section as if the member were not reassigned if the Secretary concerned determines that it would be inequitable to base the member’s entitlement to, and amount of, a basic allowance for housing

on the cost of housing in the area to which the member is reassigned.

(Added P.L. 87–649, Sept. 7, 1962, 76 Stat. 470; amended P.L. 88–132, § 10, Oct. 2, 1963, 77

Stat. 216; P.L. 89–718, §§ 49(a)(1), 54, Nov. 2, 1966, 80 Stat. 1121, 1122; P.L. 90–207, § 1(3),

Dec. 16, 1967, 81 Stat. 651; P.L. 92–129, § 204, Sept. 28, 1971, 85 Stat. 358; P.L. 93–64, § 105,

July 9, 1973, 87 Stat. 148; P.L. 93–419, § 3(6), Sept. 19, 1974, 88 Stat. 1152; P.L. 96–343,

§ 4(a)(1), (2), Sept. 8, 1980, 94 Stat. 1125; P.L. 96–513, § 516(10), Dec. 12, 1980, 94 Stat. 2938;

P.L. 96–579, §§ 6(a)–(c), 7, Dec. 23, 1980, 94 Stat. 3367, 3368; P.L. 97–22, § 11(b)(2), July 10,

1981, 95 Stat. 138; P.L. 98–94, § 907(a), Sept. 24, 1983, 97 Stat. 637; P.L. 98–525, §§ 602(c),

604(a), Oct. 19, 1984, 98 Stat. 2534, 2537; P.L. 99–145, §§ 604(a), 605(a), § 809(b), § 1303(b)(6),

Nov. 8, 1985, 99 Stat. 638, 681, 740; P.L. 99–227, § 1, Dec. 28, 1985, 99 Stat. 1745; P.L. 100–

26, § 8(d)(5), Apr. 21, 1987, 101 Stat. 285, P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117;

P.L. 102–190, § 602(a), 604(a) and 632(a), Dec. 5, 1991, 105 Stat. 1373, 1374 and 1380; P.L. 103–

337, § 604(a)–(b), Oct. 5, 1994, 108 Stat. 2782; P.L. 104–106, §§ 603(a), 604(a), Feb. 10, 1996,

110 Stat. 357, 358; P.L. 104–201, §§ 604 (a)–(c), 605 Sept. 23, 1996, 110 Stat. 2540, 2541; P.L.

105–85, § 603(a), Nov. 18, 1997, 111 Stat. 1775; P.L. 105–261, § 603(a), Oct. 16, 1998, 112 Stat.

2037; P.L. 106–398, § 1 (§§ 605(a)–(d), 607, 608, 1087(b)(2)), Oct. 30, 2000, 114 Stat. 1654A–147,

148, 149, 292; P.L. 107–107, § 605(a), Dec. 28, 2001, 115 Stat. 1134; P.L. 107–296, § 1704(c), Nov.

25, 2002, 116 Stat. 2314; P.L. 107–314, § 602, Dec. 2, 2002, 116 Stat. 2566; P.L. 108–136,

§ 605(a), Nov. 24, 2003, 117 Stat. 1500.)

§ 403b. Cost-of-living allowance in the continental United

States

(a) PAYMENT AUTHORIZED.—The Secretary concerned may pay

a cost-of-living allowance to the eligible members of a uniformed

service under the jurisdiction of the Secretary.

(b) ELIGIBLE MEMBERS.—The following members are eligible to

receive a cost-of-living allowance under this section:

(1) A member assigned to a high cost area in the continental United States.

(2) A member assigned to an unaccompanied tour of duty

outside the continental United States if the primary dependent

of the member resides in a high cost area in the continental

United States.

(3) A member assigned to duty in the continental United

States if the Secretary of the uniformed service concerned determines that—

(A) the primary dependent of the member must reside

in a high cost area in the continental United States by reason of the member’s duty location or other circumstances;

and

(B) it would be inequitable for the member’s eligibility

for the allowance to be determined on the basis of the duty

location of the member.

(c) HIGH COST AREA DEFINED.—An area is a high cost area for

a fiscal year for purposes of this section if the uniformed services

cost of living for that area for the base period exceeds the average

cost of living in the continental United States for such base period

by at least the threshold percentage. The Secretary of Defense, in

consultation with the other administering Secretaries, shall establish the threshold percentage, except that the threshold percentage

may not be less than 8 percent. The administering Secretaries shall

prescribe a higher threshold percentage to be applied for a fiscal
157 § 403b TITLE 37—CH. 7—ALLOWANCES

year when it is necessary to do so in order to ensure that the total

amount of the payments of the cost-of-living allowance made to

members of the uniformed services under this section for such fiscal year does not exceed the total amount available to all uniformed services for that fiscal year for paying such allowance.

(d) AMOUNT OF ALLOWANCE.—The cost-of-living allowance that

may be paid to a member for a high cost area for a fiscal year shall

be the amount that is equal to the product of—

(1) the amount of the average spendable income determined applicable for the regular military compensation level of

such member under subsection (g); and

(2) the percentage equal to the excess of—

(A) the percentage by which the uniformed services

cost of living for the member’s high cost area for the base

period exceeds the average cost of living in the continental

United States for such base period, over

(B) the threshold percentage applicable to such fiscal

year under subsection (c).

(e) LIMITATION TO ONE ALLOWANCE.—If primary dependents of

a member reside separately in different high cost areas—

(1) the member may be paid only one cost-of-living allowance under this section; and

(2) the cost-of-living allowance payable to the member

shall be the highest of the amounts computed under this section for such high cost areas.

(f) SERVICE NOT COVERED.—(1) A cost-of-living allowance may

not be paid a member under this section for the days authorized

for travel of the member in connection with a permanent change

of duty station.

(2) A member of a reserve component is not eligible for a costof-living allowance under this section unless the member is on active duty under a call or order to active duty that—

(A) specifies a period of 140 days or more; or

(B) states that the call or order to active duty is in support

of a contingency operation.

(g) AVERAGE SPENDABLE INCOME.—The Secretary of Defense

shall determine, using a methodology and assumptions that the

Secretary considers appropriate, the amounts of average spendable

income of members of the uniformed services for various ranges of

regular military compensation. For purposes of this subsection,

spendable income is the total amount of regular military compensation that is available for purchase of goods and services after allocation of amounts for taxes, insurance, housing, gifts and contributions, and savings.

(h) JOINT REGULATIONS.—The Secretary of Defense and the

other administering Secretaries shall jointly prescribe regulations

to carry out this section.

(i) OTHER DEFINITIONS.—In this section:

(1) The term ‘‘primary dependent’’, with respect to a member, means—

(A) the member’s spouse; or

(B) in the case of an unmarried member, a dependent

described in paragraph (2) or (4) of section 401(a) of this

title.
§ 404 TITLE 37—CH. 7—ALLOWANCES 158

(2) The term ‘‘cost of living’’ means a price index selected

by the Secretary of Defense, in consultation with the other administering Secretaries, from among the following indices:

(A) The Consumer Price Index (all items–United

States city average) published monthly by the Bureau of

Labor Statistics.

(B) Any other index developed in the private sector

that the Secretary of Defense, in consultation with the

other administering Secretaries, determines is comparable

to the Consumer Price Index and is appropriate for use for

purposes of this section.

(3) The term ‘‘uniformed services cost of living’’ means the

price index selected as described in paragraph (2) and adjusted

as the Secretary of Defense, in consultation with the other administering Secretaries, considers appropriate to reflect variations between expenses of members of the uniformed services

(as offset by the basic allowance for subsistence) and the corresponding expenses of persons not members of the uniformed

services with regard to the following:

(A) Nonhousing costs (including costs of transportation, goods, and services, taking into consideration savings attributable to use of such military facilities as commissary stores and exchange stores).

(B) Average income tax paid.

(C) Cost of health care.

(4) The term ‘‘base period’’, with respect to a fiscal year,

means the 12-month period ending on June 30 of the year in

which such fiscal year begins.

(5) The term ‘‘administering Secretaries’’ means the following:

(A) The Secretary of Defense, with respect to the

armed forces (other than the Coast Guard when it is not

operating as a service in the Navy).

(B) The Secretary of Homeland Security, with respect

to the Coast Guard when it is not operating as a service

in the Navy.

(C) The Secretary of Commerce, with respect to the

National Oceanic and Atmospheric Administration.

(D) The Secretary of Health and Human Services, with

respect to the Public Health Service.

(P.L. 103–337, § 602(a)(1), Oct. 5, 1994, 108 Stat. 2779; amended P.L. 107–296, § 1704(c), Nov.

25, 2002, 116 Stat. 2314; P.L. 107–314, § 654(b)(2), Dec. 2, 2002, 116 Stat. 2582.)

§ 404. Travel and transportation allowances: general

(a) Except as provided in subsection (f) and under regulations

prescribed by the Secretaries concerned, a member of a uniformed

service is entitled to travel and transportation allowances for travel

performed or to be performed under orders, without regard to the

comparative costs of the various modes of transportation—

(1) upon a change of permanent station, or otherwise, or

when away from his designated post of duty regardless of the

length of time he is away from that post;
159 § 404 TITLE 37—CH. 7—ALLOWANCES

(2) upon appointment, call to active duty, enlistment, or induction, from his home or from the place from which called or

ordered to active duty to his first station;

(3) upon separation from the service, placement on the

temporary disability retired list, release from active duty, or

retirement, from his last duty station to his home or the place

from which he was called or ordered to active duty, whether

or not he is or will be a member of a uniformed service at the

time the travel is or will be performed;

(4) when away from home to perform duty, including duty

by a member of the Army National Guard of the United States

or the Air National Guard of the United States, as the case

may be, in his status as a member of the National Guard, for

which he is entitled to, or has waived, pay under this title; and

(5) when not on active duty, if assigned to a Reserve

school, and attending a reserve training meeting for the purpose of performing duties as an instructor at such meeting, if

such meeting is 100 or more miles from the site at which the

member would attend paid drills of the Reserve school to which

he is assigned.

(b)(1) The Secretaries concerned may prescribe—

(A) the conditions under which travel and transportation

allowances are authorized, including advance payments thereof; and

(B) the allowances for the kinds of travel, but not more

than the amounts authorized in this section.

(2) In prescribing such conditions and allowances, the Secretaries concerned shall provide that a member who is performing

travel under orders away from his designated post of duty and who

is authorized a per diem under clause (2) of subsection (d) shall be

paid for the meals portion of that per diem in a cash amount at

a rate that is not less than the rate established under section

1011(a) of this title for meals sold to members. The preceding sentence shall not apply with respect to a member on field duty or sea

duty (as defined in regulations prescribed under section 403(f)(3) of

this title) or a member of a unit with respect to which the Secretary concerned has determined that unit messing is essential to

the accomplishment of the unit’s training and readiness.

(c)(1) Under uniform regulations prescribed by the Secretaries

concerned and as provided in paragraph (2), a member who—

(A) is retired, or is placed on the temporary disability retired list, under chapter 61 of title 10;

(B) is retired with pay under any other law, or, immediately following at least eight years of continuous active duty

with no single break therein of more than 90 days, is discharged with separation pay or severance pay or is involuntarily released from active duty with separation pay or readjustment pay; or

(C) is involuntarily separated from active duty during the

period beginning on October 1, 1990, and ending on December

31, 2001,

may, not later than one year from the date he is so retired, placed

on that list, involuntarily separated, discharged, or released, except

as prescribed in regulations by the Secretaries concerned, select his
§ 404 TITLE 37—CH. 7—ALLOWANCES 160

home for the purposes of the travel and transportation allowances

authorized by subsection (a).

(2) A member authorized under paragraph (1) to select a home

for the purposes of such allowances may select as his home—

(A) any place within the United States;

(B) the place outside the United States from which the

member was called or ordered to active duty to his first duty

station; or

(C) any other place.

However, if the member selects as his home a place other than a

place described in clause (A) or (B) of the preceding sentence, the

travel and transportation allowances authorized by subsection (a)

may not exceed the allowances which would be payable if the place

selected as his home were in the United States (other than Hawaii

or Alaska).

(d)(1) The travel and transportation allowances authorized for

each kind of travel may not be more than one of the following:

(A) Transportation in kind, reimbursement therefor, or,

under regulations prescribed by the Secretaries concerned,

when travel by privately owned conveyance is authorized or

approved as more advantageous to the Government, a monetary allowance in place of the cost of transportation, at the

rates provided in section 5704 of title 5.

(B) Transportation in kind, reimbursement therefor, or a

monetary allowance as provided in subparagraph (A), plus a

payment in lieu of subsistence as provided in paragraph (2) in

an amount sufficient to meet normal and necessary expenses

in the area to which travel is performed.

(C) A mileage allowance at a rate per mile prescribed by

the Secretaries concerned and based on distances established

under subparagraph (A).

(2) Under regulations prescribed by the Secretaries concerned,

a member of a uniformed service entitled to travel and transportation allowances under subsection (a) is entitled to any of the following:

(A) A per diem allowance at a rate not to exceed that established by the Secretaries concerned.

(B) Reimbursement for the actual and necessary expenses

of official travel not to exceed an amount established by the

Secretaries concerned.

(C) A combination of payments described in subparagraphs

(A) and (B).

(3) A per diem allowance or maximum amount of reimbursement established for purposes of paragraph (2) shall be established,

to the extent feasible, by locality.

(4) For travel consuming less than a full day, the payment prescribed by regulation under paragraph (2) shall be allocated in such

manner as the Secretaries concerned prescribe.

(5) Effective January 1, 2003, the per diem rates established

under paragraph (2)(A) for travel performed in connection with a

change of permanent station or for travel described in paragraph

(2) or (3) of subsection (a) shall be equal to the standard per diem

rates established in the Federal travel regulation for travel within

the continental United States of civilian employees and their de-
161 § 404 TITLE 37—CH. 7—ALLOWANCES

pendents, unless the Secretaries concerned determine that a higher

rate for members is more appropriate.

(e) A member who is on duty with, or is undergoing training

for, the Air Mobility Command, the Marine Corps Transport

Squadrons, the Fleet Tactical Support Squadrons, the Naval Aircraft Ferrying Squadrons, or any other unit determined by the Secretary concerned to be performing duties similar to the duties performed by such command or squadrons, and who is away from his

permanent station, may be paid a per diem in lieu of subsistence

in an amount not more than the amount to which he would be entitled if he were performing travel in connection with temporary

duty without, in either case, the issuance of orders for specific travel.

(f)(1) The travel and transportation allowances authorized

under this section for a member who is separated from the service

or released from active duty may be paid or provided only for travel

actually performed.

(2)(A) Except as provided in subparagraph (B), a member who

is separated from the service or released from active duty and

who—

(i) on the date of his separation from the service or release

from active duty, has not served on active duty for a period of

time equal to at least 90 percent of the period of time for which

he initially enlisted or otherwise initially agreed to serve; or

(ii) is separated from the service or released from active

duty under other than honorable conditions, as determined by

the Secretary concerned;

may be provided travel and transportation under this section only

by transportation in kind by the least expensive mode of transportation available or by a monetary allowance that does not exceed

the cost to the Government of such transportation in kind.

(B) Subparagraph (A) does not apply to a member—

(i) who is retired, or is placed on the temporary disability

retired list, under chapter 61 of title 10;

(ii) who is separated from the service or released from active duty for a medical condition affecting the member, as determined by the Secretary concerned;

(iii) who is separated from the service or released from active duty because the period of time for which the member initially enlisted or otherwise initially agreed to serve has been

reduced by the Secretary concerned and is separated or released under honorable conditions;

(iv) who is discharged under section 1173 of title 10; or

(v) who is involuntarily separated from active duty during

the period beginning on October 1, 1990, and ending on December 31, 2001.

(3) For purposes of entitlement to per diem in place of subsistence under subsection (d)(2), a member shall not be considered

under subsection (a)(1) to be performing travel under orders away

from his designated post of duty if such member—

(A) is an enlisted member serving his first tour of active

duty;

(B) has not actually reported to a permanent duty station

pursuant to orders directing such assignment; and
§ 404 TITLE 37—CH. 7—ALLOWANCES 162

(C) is not actually traveling between stations pursuant to

orders directing a change of station.

(g)(1) Subject to paragraph (2), a member of the armed forces

accompanying a Member of Congress or a congressional employee

on official travel may be authorized reimbursement for actual travel and transportation expenses incurred for such travel.

(2) The reimbursement authorized in paragraph (1) may be

paid—

(A) at a rate that does not exceed the rate approved for official congressional travel; and

(B) only when the travel of the member is directed or approved by the Secretary of Defense or the Secretary concerned.

(3) In this subsection:

(A) The term ‘‘Member of Congress’’ means a member of

the Senate or the House of Representatives, a Delegate to the

House of Representatives, and the resident Commissioner from

Puerto Rico.

(B) The term ‘‘congressional employee’’ means an employee

of a Member of Congress or an employee of Congress.

(h) Under uniform regulations prescribed by the Secretaries

concerned, a member of a uniformed service entitled to travel and

transportation allowances under subsection (a) is entitled to reimbursement for parking fees, ferry fares, and bridge, road, and tunnel tolls actually incurred incident to such travel.

(i)(1) In the case of a member of a reserve component performing active duty for training or inactive-duty training who is

not otherwise entitled to travel and transportation allowances in

connection with such duty under subsection (a), the Secretary concerned may reimburse the member for housing service charge expenses incurred by the member in occupying transient government

housing during the performance of such duty. If transient government housing is unavailable or inadequate, the Secretary concerned may provide the member with lodging in kind in the same

manner as members entitled to such allowances under subsection

(a).

(2) Any payment or other benefit under this subsection shall

be provided in accordance with regulations prescribed by the Secretaries concerned.

(3) The Secretary may pay service charge expenses under paragraph (1) and expenses of providing lodging in kind under such

paragraph out of funds appropriated for operation and maintenance for the t of funds appropriated for operation and maintenance for the reserve component concerned. Use of Government

charge cards is authorized for payment of these expenses.

(4) Decisions regarding the availability or adequacy of government housing at a military installation under paragraph (1) shall

be made by the installation commander.

(j) In this section, the term ‘‘involuntarily separated’’ has the

meaning given that term in section 1141 of title 10.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 472; amended P.L. 89–680, § 1(1), Oct. 15, 1966, 80 Stat.

957; P.L. 89–718, §§ 55, 56, Nov. 2, 1966, 80 Stat. 1122, 1123; P.L. 90–168, § 3, Dec. 1, 1967,

81 Stat. 525; P.L. 91–183, Dec. 30, 1969, 83 Stat. 840; P.L. 94–296, § 1, May 29, 1976, 90 Stat.

584; P.L. 96–342, § 807(a), Sept. 8, 1980, 94 Stat. 1096; P.L. 96–343, § 5(a), Sept. 8, 1980, 94

Stat. 1126; P.L. 97–60, § 121(a), Oct. 14, 1981, 95 Stat. 999; P.L. 98–94, § 908(b), Sept. 24, 1983,

97 Stat. 637; P.L. 98–525, § 533(g), § 613(a), § 1402(c), Oct. 19, 1984, 98 Stat. 2528, 2539, 2621;

P.L. 99–145, § 612(a), Nov. 8, 1985, 99 Stat. 639; amended identically P.L. 99–500, 99–591, 99–
163 § 404a TITLE 37—CH. 7—ALLOWANCES

661, §§ 101(c) [§ 9073], 101(c) [§ 9073], 1343(b)(2), Oct. 18, Oct. 30, Nov. 14, 1986, 100 Stat.

1783–113, 3341–113, 3995; P.L. 100–26, § 8(d)(6), Apr. 21, 1987, 101 Stat. 285; P.L. 99–661,

§ 614(a), Nov. 14, 1986, 100 Stat. 3879; P.L. 100–26, § 8(a), (d)(6), Apr. 21, 1987, 101 Stat. 284,

285; P.L. 100–180, § 617(a), Dec. 4, 1987, 101 Stat. 1096; P.L. 101–189, § 621, Nov. 29, 1989,

103 Stat. 1446; P.L. 101–510, § 503(a), Nov. 5, 1990, 104 Stat. 1558, P.L. 102–25, § 702(b)(1) and

(2), April 6, 1991, 105 Stat. 117; P.L. 102–484, § 624, Oct. 23, 1992, 106 Stat. 2423; P.L. 103–

160, § 561(l)(1), Nov. 30, 1993, 107 Stat. 1668; P.L. 103–337, § 621 and 622, Oct. 5, 1994, 108

Stat. 2784; P.L. 104–106, § 621, Feb. 10, 1996, 110 Stat. 363; P.L. 104–201, § 1252, Sept. 23,

1996, 110 Stat. 2698; P.L. 105–85, § 602(b)(1), Nov. 18, 1997, 111 Stat. 1772; P.L. 105–261,

§ 561(f), Oct. 16, 1998, 112 Stat. 2025; P.L. 106–65, § 631, Oct. 5, 1999, 113 Stat. 661; P.L. 106–

398, § 1 (§§ 571(f), 1087(b)(3)), Oct. 30, 2000, 114 Stat. 1654A–134, 292; P.L. 107–107, § 631, Dec.

28, 2001, 115 Stat. 1143.)

§ 404a. Travel and transportation allowances: temporary

lodging expenses

(a) PAYMENT OR REIMBURSEMENT OF SUBSISTENCE EXPENSES.—

(1) Under regulations prescribed by the Secretaries concerned, a

member of a uniformed service who is ordered to make a change

of permanent station described in paragraph (2) shall be paid or reimbursed for subsistence expenses of the member and the member’s dependents for the period (subject to subsection (c)) for which

the member and dependents occupy temporary quarters incident to

that change of permanent station.

(2) Paragraph (1) applies to the following:

(A) A permanent change of station from any duty station

to a duty station in the United States (other than Hawaii or

Alaska).

(B) A permanent change of station from a duty station in

the United States (other than Hawaii or Alaska) to a duty station outside the United States or in Hawaii or Alaska.

(C) In the case of a member who is reporting to the member’s first permanent duty station, the change from the member’s home of record or initial technical school to that first permanent duty station.

(b) PAYMENT IN ADVANCE.—The Secretary concerned may make

any payment for subsistence expenses to a member under this section in advance of the member actually incurring the expenses. The

amount of an advance payment made to a member shall be computed on the basis of the Secretary’s determination of the average

number of days that members and their dependents occupy temporary quarters under the circumstances applicable to the member

and the member’s dependents.

(c) MAXIMUM PAYMENT PERIOD.—(1) In the case of a change of

permanent station described in subparagraph (A) or (C) of subsection (a)(2), the period for which subsistence expenses are to be

paid or reimbursed under this section may not exceed 10 days.

(2) In the case of a change of permanent station described in

subsection (a)(2)(B)—

(A) the period for which such expenses are to be paid or

reimbursed under this section may not exceed five days; and

(B) such payment or reimbursement may be provided only

for expenses incurred before leaving the United States (other

than Hawaii or Alaska).

(d) DAILY SUBSISTENCE RATES.—Regulations prescribed under

subsection (a) shall prescribe average daily subsistence rates for

purposes of this section for the member and for each dependent.

Such rates may not exceed the maximum per diem rates prescribed
§ 404b TITLE 37—CH. 7—ALLOWANCES 164

under section 404(d) of this title for the area where the temporary

quarters are located.

(e) MAXIMUM DAILY PAYMENT.—A member may not be paid or reimbursed more that $180 a day under this section.

(Added P.L. 97–60, § 122(a)(1), Oct. 14, 1981, 95 Stat. 1002; amended P.L. 99–145, § 613(a), Nov.

8, 1985, 99 Stat. 640, P.L. 102–25, § 702(b)(1) and (2), April 6, 1991, 105 Stat. 117; P.L. 102–

484, § 621, Oct. 23, 1992, 106 Stat. 2422; P.L. 103–160, § 621, Nov. 30, 1993, 107 Stat. 1682;

P.L. 106–65, § 632, Oct. 5, 1999, 113 Stat. 661; P.L. 106–398, § 1 (§ 641), Oct. 30, 2000, 114 Stat.

1654A–159; P.L. 107–107, § 632(a), (b), Dec. 28, 2001, 115 Stat. 1144.)

§ 404b. Travel and transportation allowances: lodging expenses at temporary duty location for members on

authorized leave

(a) PAYMENT OR REIMBURSEMENT AUTHORIZED.—The Secretary

concerned may pay or reimburse a member of the armed forces assigned to temporary duty as described in subsection (b) for lodging

expenses incurred by the member at the temporary duty location

while the member is in an authorized leave status.

(b) COVERED MEMBERS.—Subsection (a) applies with respect to

a member assigned to temporary duty, for a period of more than

30 days, in support of a contingency operation or in other specific

situations designated by the Secretary concerned if the

member——

(1) immediately before taking the authorized leave, was

performing the temporary duty at a location away from the

home or permanent duty station of the member;

(2) was receiving a per diem allowance under section

404(a)(4) of this title to cover lodging and subsistence expenses

incurred at the temporary duty location because quarters of

the United States were not available for assignment to the

member at that location; and

(3) immediately after completing the authorized leave, returns to the duty location.

(c) PAYMENT LIMITATION.—The amount paid or reimbursed

under subsection (a) for a member may not exceed the lesser of—

(1) the actual daily cost of lodging incurred by the member

at the temporary duty location while the member was in an

authorized leave status; and

(2) the lodging portion of the applicable daily per diem rate

for the temporary duty location.

(Added P.L. 108–136, § 635(a), Nov. 24, 2003, 117 Stat. 1510.)

§ 405. Travel and transportation allowances: per diem while

on duty outside the United States or in Hawaii or

Alaska

(a) PER DIEM AUTHORIZED.—Without regard to the monetary

limitation of this title, the Secretary concerned may pay a per diem

to a member of the uniformed services who is on duty outside of

the United States or in Hawaii or Alaska, whether or not the member is in a travel status. The Secretary may pay the per diem in

advance of the accrual of the per diem.

(b) DETERMINATION OF PER DIEM.—In determining the per

diem to be paid under this section, the Secretary concerned shall

consider all elements of the cost of living to members of the uniformed services under the Secretary’s jurisdiction and their de-
165 § 405a TITLE 37—CH. 7—ALLOWANCES

pendents, including the cost of quarters, subsistence, and other

necessary incidental expenses. However, dependents may not be

considered in determining the per diem allowance for a member in

a travel status.

(c) TREATMENT OF HOUSING COST AND ALLOWANCE.—Housing

cost and allowance may be disregarded in prescribing a station cost

of living allowance under this section.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 473; amended P.L. 89–718, § 57, Nov. 2, 1966, 80 Stat.

1123; P.L. 91–486, Oct. 22, 1970, 84 Stat. 1085; P.L. 96–107, § 807(a), Nov. 9, 1979, 93 Stat.

813; P.L. 98–525, § 602(e), Oct. 19, 1984, 98 Stat. 2536; P.L. 99–145, § 1303(b)(8), Nov. 8, 1985,

99 Stat. 714; P.L. 101–189, § 622, Nov. 29, 1989, 103 Stat. 1446; P.L. 103–160, § 622(a), Nov.

30, 1993, 107 Stat. 1683; P.L. 105–85, § 603(c)(2), Nov. 18, 1997, 111 Stat. 1781; P.L. 105–261,

§ 603(b), Oct. 16, 1998, 112 Stat. 2037; P.L. 106–398, § 1 (§ 641(b)), Oct. 30, 2000, 114 Stat.

1654A–160.)

§ 405a. Travel and transportation allowances: departure allowances

(a) Under regulations prescribed by the Secretaries concerned,

when dependents of members of the uniformed services are authorized or ordered to depart by competent authority they may be authorized such allowances as the Secretary concerned determines

necessary to offset the expenses incident to the departure. Allowances authorized by this section are in addition to those authorized

by any other section of this title. Such allowances may be paid in

advance. For the purposes of this section, a dependent ‘‘authorized

or ordered to depart by competent authority’’ includes—

(1) a dependent who is present at or in the vicinity of the

member’s duty station when the departure of dependents is authorized or ordered by competent authority and who actually

moves to an authorized safe haven designated by that authority, whether such safe haven is at or in the vicinity of the

member’s duty station or elsewhere;

(2) a dependent who resides at or in the vicinity of a

former duty station of the member following the assignment of

the member elsewhere or who resides at or in the vicinity of

a duty station (other than the duty station of the member) incident to orders in connection with an unaccompanied tour of

duty of the member, if a departure of dependents is authorized

or ordered by competent authority from the duty station at

which or in the vicinity of which the dependent resides and the

dependent actually moves to an authorized safe haven designated by that authority;

(3) a dependent who established a household at or in the

vicinity of the member’s duty station but who is temporarily

absent therefrom for any reason when departure of dependents

is authorized or ordered by competent authority; and

(4) a dependent who was authorized to join the member

and who departed from his former place of residence incident

to joining the member but who, as a result of the departure of

dependents, is diverted to a safe haven designated by competent authority or is authorized to travel to a place the dependent may designate, even though he was in the United

States when the departure was authorized or ordered.

(b)(1) Under regulations prescribed by the Secretaries concerned, each member whose dependents are covered by subsection

(a) is entitled to have one motor vehicle that is owned by the mem-
§ 406 TITLE 37—CH. 7—ALLOWANCES 166

ber (or a dependent of the member) and is for the personal use of

the member or his dependents transported at the expense of the

United States to a designated place for the use of the dependents.

When the dependents are permitted to rejoin the member, the vehicle may be transported at the expense of the United States to his

permanent duty station.

(2) If a motor vehicle of a member (or a dependent of the member) that is transported at the expense of the United States under

paragraph (1) does not arrive at the authorized destination of the

vehicle by the designated delivery date, the Secretary concerned

shall reimburse the member for expenses incurred after that date

to rent a motor vehicle for the dependent’s use. The amount reimbursed may not exceed $30 per day, and the rental period for which

reimbursement may be provided expires after 7 days or on the date

on which the delayed vehicle arrives at the authorized destination

(whichever occurs first).

(Added P.L. 89–26, § 1(1), May 22, 1965, 79 Stat. 116; amended P.L. 89–608, § 2, Sept. 30, 1966,

80 Stat. 851; P.L. 96–465, § 2303(e), Oct. 17, 1980, 94 Stat. 2165; P.L. 97–60, §§ 121(c), 123, Oct.

14, 1981, 95 Stat. 1002, 1003; P.L. 99–661, § 1343(b)(3), Nov. 14, 1986, 100 Stat. 3995, P.L. 102–

25, § 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 102–484, § 625(b)(1), Oct. 23, 1992, 106 Stat.

2424; P.L. 104–106, § 622(a), Feb. 10, 1996, 110 Stat. 363; P.L. 105–261, § 653(c), Oct. 16, 1998,

112 Stat. 2052.)

§ 406. Travel and transportation allowances: dependents;

baggage and household effects

(a)(1) Except as provided in paragraph (2), a member of a uniformed service who is ordered to make a change of permanent station is entitled to transportation in kind, reimbursement therefor,

or a monetary allowance in place of the cost of transportation, plus

a per diem, for the member’s dependents at rates prescribed by the

Secretaries concerned, but not more than the rate authorized under

section 404(d) of this title. The Secretary concerned may also reimburse the member for mandatory pet quarantine fees for household

pets, but not to exceed $550 per change of station, when the member incurs the fees incident to such change of station.

(2)(A) Except as provided in subparagraph (B), a member

who—

(i) is separated from the service or released from active

duty; and

(ii) on the date of his separation from the service or release

from active duty, has not served on active duty for a period of

time equal to at least 90 percent of the period of time for which

he initially enlisted or otherwise initially agreed to serve,

may be provided transportation under this subsection for his dependents only by transportation in kind by the least expensive

mode of transportation available or by a monetary allowance that

does not exceed the cost to the Government of such transportation

in kind.

(B) Subparagraph (A) does not apply to a member—

(i) who is retired, or is placed on the temporary disability

retired list, under chapter 61 of title 10;

(ii) who is separated from the service or released from active duty for a medical condition affecting the member, as determined by the Secretary concerned;
167 § 406 TITLE 37—CH. 7—ALLOWANCES

(iii) who is separated from the service or released from active duty because the period of time for which the member initially enlisted or otherwise initially agreed to serve has been

reduced by the Secretary concerned and is separated or released under honorable conditions;

(iv) who is discharged under section 1173 of title 10; or

(v) who is involuntarily separated from active duty during

the period beginning on October 1, 1990, and ending on December 31, 2001.

(3) The allowances authorized under this subsection may be

paid in advance.

(4) In this section, the term ‘‘involuntarily separated’’ has the

meaning given that term in section 1141 of title 10.

(b)(1)(A) Except as provided in paragraph (2), in connection

with a change of temporary or permanent station, a member is entitled to transportation (including packing, crating, drayage, temporary storage, and unpacking) of baggage and household effects

within the weight allowances listed in subparagraph (C), without

regard to the comparative costs of the various modes of transportation. Temporary storage in excess of 180 days may be authorized.

Alternatively, the member may be paid reimbursement or a monetary allowance under subparagraph (F).

(B) Subject to uniform regulations prescribed by the Secretaries concerned, in the case of a permanent change of station in

which the Secretary concerned has authorized transportation of a

motor vehicle under section 2634 of title 10 (except when such

transportation is authorized from the old duty station to the new

duty station), the member is entitled to a monetary allowance for

transportation of that motor vehicle—

(i) from the old duty station to—

(I) the customary port of embarkation which is nearest

the old duty station if delivery of the motor vehicle to the

port of embarkation is not made in conjunction with the

member’s travel to the member’s port of embarkation; or

(II) the customary port of embarkation which is nearest to the member’s port of embarkation if delivery of the

motor vehicle to the port of embarkation is made in conjunction with the member’s travel to the member’s port of

embarkation;

whichever is most cost-effective for the Government considering all operational, travel, and transportation requirements

incident to such change of station; and

(ii) from the customary port of debarkation which has been

designated by the Government as most cost-effective for the

Government considering all operational, travel, and transportation requirements incident to such change of station to the

new duty station.

Such monetary allowance shall be established at a rate per mile

that does not exceed the rate established under section 404(d)(1) of

this title. If clause (i)(I) applies to the transportation by the member of a motor vehicle from the old duty station, the monetary allowance under this subparagraph shall also cover return travel to

the old duty station by the member or other person transporting

the vehicle. In the case of transportation described in clause (ii),
§ 406 TITLE 37—CH. 7—ALLOWANCES 168

the monetary allowance shall also cover travel from the new duty

station to the port of debarkation to pick up the vehicle. In the case

of the transportation of a motor vehicle arranged by the member

under section 2634(h) of title 10, the Secretary concerned may pay

the member, upon presentation of proof of shipment, a monetary

allowance in lieu of transportation, as established under section

404(d)(1) of this title.

(C) Under regulations prescribed by the Secretary of Defense,

the weight allowance in pounds to which a member is entitled

under subparagraph (A) is determined in accordance with the following table:

Pay Grade

Without

Dependents

With Dependents

O–10 to O–6 ................................................................................ 18,000 18,000

O–5 ............................................................................................... 16,000 17,500

O–4 ............................................................................................... 14,000 17,000

O–3 ............................................................................................... 13,000 14,500

O–2 ............................................................................................... 12,500 13,500

O–1 ............................................................................................... 10,000 12,000

W–5 .............................................................................................. 16,000 17,500

W–4 .............................................................................................. 14,000 17,000

W–3 .............................................................................................. 13,000 14,500

W–2 .............................................................................................. 12,500 13,500

W–1 .............................................................................................. 10,000 12,000

E–9 ............................................................................................... 12,000 14,500

E–8 ............................................................................................... 11,000 13,500

E–7 ............................................................................................... 10,500 12,500

E–6 ............................................................................................... 8,000 11,000

E–5 ............................................................................................... 7,000 9,000

E–4 ............................................................................................... 7,000 8,000

E–3 ............................................................................................... 5,000 8,000

E–2 ............................................................................................... 5,000 8,000

E–1 ............................................................................................... 5,000 8,000

(D) In connection with the change of temporary or permanent

station of a member in a pay grade below pay grade O–6, the Secretary concerned may authorize a higher weight allowance than the

weight allowance determined under subparagraph (C) for the member if the Secretary concerned determines that the application of

the weight allowance determined under such subparagraph would

result in significant hardship to the member or the dependents of

the member. An increase in weight allowance under this subparagraph may not result in a weight allowance exceeding the weight

allowance specified in subparagraph (C) for pay grades O–6 to O–

10, unless the additional weight allowance in excess of such maximum is intended to permit the shipping of consumables that cannot be reasonably obtained at the new station of the member. The

Secretary of Defense shall prescribe regulations to carry out this

subparagraph.

(E) Under regulations prescribed by the Secretary of Defense,

or the Secretary of Homeland Security for the Coast Guard when

it is not operating as a service in the Navy, cadets at the United

States Military Academy, the United States Air Force Academy,

and the United States Coast Guard Academy, and midshipmen at

the United States Naval Academy shall be entitled, in connection

with temporary or permanent station change, to transportation of
169 § 406 TITLE 37—CH. 7—ALLOWANCES

baggage and household effects as provided in subparagraph (A).

The weight allowance for cadets and midshipmen is 350 pounds.

(F) A member entitled to transportation of baggage and household effects under subparagraph (A) may, as an alternative to the

provision of transportation, be paid reimbursement or, at the member’s request, a monetary allowance in advance for the cost of

transportation of the baggage and household effects. The monetary

allowance may be paid only if the amount of the allowance does not

exceed the cost that would be incurred by the Government under

subparagraph (A) for the transportation of the baggage and household effects. Appropriations available to the Department of Defense, the Department of Homeland Security, and the Department

of Health and Human Services for providing transportation of baggage or household effects of members of the uniformed services

shall be available to pay a reimbursement or monetary allowance

under this subparagraph. The Secretary concerned may prescribe

the manner in which the risk of liability for damage, destruction,

or loss of baggage or household effects arranged, packed, crated, or

loaded by a member is allocated among the member, the United

States, and any contractor when a reimbursement or monetary allowance is elected under this subparagraph.

(G) Under regulations prescribed by the Secretary of Defense,

the Secretary concerned may pay a member a share (determined

pursuant to such regulations) of the savings resulting to the United

States when the total weights of the member’s baggage and household effects shipped and stored under subparagraph (A) are less

than the average weights of the baggage and household effects that

are shipped and stored, respectively, by other members in the same

grade and with the same dependents status as the member in connection with changes of station that are comparable to the member’s change of station. The total savings shall be equal to the difference between the cost of shipping and cost of storing such average weights of baggage and household effects, respectively, and the

corresponding costs associated with the weights of the member’s

baggage and household effects. For the administration of this subparagraph, the Secretary of Defense shall annually determine the

average weights of baggage and household effects shipped and

stored in connection with a change of temporary or permanent station.

(2) The transportation and allowances authorized under paragraph (1) may be paid or provided to a member upon his separation

from the service or release from active duty only if the member applies for the transportation and allowances not later than 180 days

after the date of his separation or release from active duty. If a

member to whom this paragraph applies has been authorized nontemporary storage under subsection (d), the 180-day period shall

not begin until such authorization for nontemporary storage expires. This paragraph does not apply to a member to whom subsection (g)(1) applies.

(c) The allowances and transportation authorized by subsections (a) and (b) are in addition to those authorized by sections

403(c), 404, and 405 of this title and are—

(1) subject to such conditions and limitations;

(2) for such grades, ranks, and ratings; and
§ 406 TITLE 37—CH. 7—ALLOWANCES 170

(3) to and from such places;

prescribed by the Secretaries concerned. Transportation of the

household effects of a member may not be made by commercial air

carrier at an estimated over-all cost that is more than the estimated over-all cost of the transportation thereof by other means,

unless an appropriate transportation officer has certified in writing

to his commanding officer that those household effects to be so

transported are necessary for use in carrying out assigned duties,

or are necessary to prevent undue hardship and other means of

transportation will not fill those needs. However, not more than

1,000 pounds of unaccompanied baggage may be transported by

commercial air carrier, without regard to the preceding sentence,

under regulations prescribed under the authority of the Secretary

of Defense.

(d) The nontemporary storage of baggage and household effects

may be authorized in facilities of the United States, or in commercial facilities when it is considered to be more economical to the

United States. However, the weight of baggage and household effects stored, plus the weight of the baggage and household effects

transported, in connection with a change of station may not be

more than the maximum weight limitations in regulations prescribed by the Secretaries concerned when it is not otherwise fixed

by law. In the event a member’s baggage and household effects exceed such maximum weight limitation, the Secretary concerned, if

requested to do so by the member, may pay the cost for the nontemporary storage of that excess weight and collect the amount

paid from the member’s pay and allowances, or collect the amount

in such other manner as the Secretary concerned determines appropriate. The nontemporary storage of baggage and household effects may not be authorized for a period longer than one year from

the date the member concerned is separated from the service, retired, placed on the temporary disability retired list, discharged, or

released from active duty, except as prescribed in regulations by

the Secretaries concerned for a member who, on that date, or at

any time during the one-year period following that date, is confined

in a hospital, or is in its vicinity, undergoing medical treatment; or

in the case of a member who—

(1) is retired, or is placed on the temporary disability retired list, under chapter 61 of title 10; or

(2) is retired with pay under any other law, or immediately

following at least eight years of continuous active duty with no

single break therein of more than 90 days, is discharged with

separation pay or severance pay or is involuntarily released

from active duty with separation pay or readjustment pay.

Except in the case of a member who, on the date of his separation,

discharge, or release, or at any time during the one-year period following that date, is confined in a hospital, or is in its vicinity, undergoing medical treatment, the cost of the storage, for the period

that exceeds one year, shall be paid by the member.

(e) When orders directing a change of permanent station for

the member concerned have not been issued, or when they have

been issued but cannot be used as authority for the transportation

of his dependent, baggage, and household effects, the Secretaries

concerned may authorize the movements of the dependents, bag-
171 § 406 TITLE 37—CH. 7—ALLOWANCES

gage, and household effects and prescribe transportation in kind,

reimbursement therefor, or a monetary allowance in place thereof

(as the case may be), plus a per diem, as authorized under subsection (a) or (b). This subsection may be used only under unusual

or emergency circumstances, including those in which—

(1) the member is performing duty at a place designated

by the Secretary concerned as being within a zone from which

dependents should be evacuated;

(2) orders which direct the members’ travel in connection

with temporary duty do not provide for return to the permanent station or do not specify or imply any limit to the period

of absence from his permanent station; or

(3) the member is serving on permanent duty at a station

outside the United States, in Hawaii or Alaska, or on sea duty.

(f) Under regulations, prescribed by the Secretary concerned,

transportation for dependents, baggage, and household effects of a

member, plus a per diem for the member’s dependents, is authorized if he dies while entitled to basic pay under chapter 3 of this

title.

(g)(1) Under uniform regulations prescribed by the Secretaries

concerned, a member who—

(A) is retired, or is placed on the temporary disability retired list, under chapter 61 of title 10;

(B) is retired with pay under any other law, or, immediately following at least eight years of continuous active duty

with no single break therein of more than 90 days, is discharged with separation pay or severance pay or is involuntarily released from active duty with separation pay or readjustment pay; or

(C) is involuntarily separated from active duty during the

period beginning on October 1, 1990, and ending on December

31, 2001,

is, not later than one year from the date he is so retired, placed

on that list, involuntarily separated, discharged, or released, except

as prescribed in regulations by the Secretaries concerned, entitled

to transportation for his dependents, baggage, and household effects to the home selected under section 404(c) of this title, and to

a per diem for his dependents. In addition, baggage and household

effects may be shipped to a location other than the home selected

by the member.

(2) If baggage and household effects of a member are shipped

to a place selected by a member as his home under section 404(c)

of this title that is not a place described in clause (A) or (B) of section 404(c)(2) of this title or to a location other than the home selected by the member, or if transportation is provided for a member’s dependents to a place selected by the member as his home

under section 404(c) of this title that is not a place described in

clause (A) or (B) of section 404(c)(2) of this title, and the costs of

that shipment or transportation are in excess of those that would

have been incurred if the shipment had been made or the transportation had been provided to a location in the United States (other

than Alaska or Hawaii), the member shall pay that excess cost.

(3) If a member authorized to select a home under section

404(c) of this title accrues that right or any entitlement under this
§ 406 TITLE 37—CH. 7—ALLOWANCES 172

subsection but dies before he exercises it, that right or entitlement

accrues to and may be exercised by his surviving dependents or, if

there are no surviving dependents, his baggage and household effects may be shipped to the home of the person legally entitled to

such baggage and effects. However, if baggage and household effects are shipped under circumstances described in paragraph (2)

in which the member would have been required to pay the excess

costs of that shipment, the surviving dependents or the person legally entitled to the baggage and household effects, as the case may

be, shall pay that excess cost.

(h)(1) If the Secretary concerned determines that it is in the

best interests of a member described in paragraph (2) or the member’s dependents and the United States, the Secretary may, when

orders directing a change of permanent station for the member concerned have not been issued, or when they have been issued but

cannot be used as authority for the transportation of the member’s

dependents, baggage, and household effects—

(A) authorize the movement of the member’s dependents,

baggage, and household effects at the station to an appropriate

location in the United States or its possessions or, if the dependents are foreign nationals, to the country of the dependents’ origin and prescribe transportation in kind, reimbursement therefor, or a monetary allowance in place thereof, as the

case may be, plus a per diem, as authorized under subsection

(a) or (b); and

(B) in the case of a member described in paragraph (2)(A),

authorize the transportation of one motor vehicle, which is

owned or leased by the member (or a dependent of the member) and is for the personal use of a dependent of the member,

to that location by means of transportation authorized under

section 2634 of title 10 or authorize the storage of the motor

vehicle pursuant to subsection (b) of such section.

If the member’s baggage and household effects are in nontemporary

storage under subsection (d), the Secretary concerned may authorize their movement to the location concerned and prescribe transportation in kind or reimbursement therefor, as authorized under

subsection (b). For the purposes of this section, a member’s unmarried child for whom the member received transportation in kind to

his station outside the United States or in Hawaii or Alaska, reimbursement therefor, or a monetary allowance in place thereof, and

who became 21 years of age while the member was serving at that

station, shall be considered as a dependent of the member.

(2) A member referred to in paragraph (1) is a member who—

(A) is serving at a station outside the United States or in

Hawaii or Alaska;

(B) receives an administrative discharge under other than

honorable conditions; or

(C) is sentenced by a court-martial—

(i) to be confined for a period of more than 30 days,

(ii) to receive a dishonorable or bad-conduct discharge,

or

(iii) to be dismissed from a uniformed service.

(3) If a motor vehicle of a member (or a dependent of the member) that is transported at the expense of the United States under
173 § 406 TITLE 37—CH. 7—ALLOWANCES

1Subsection (d) of section 2634 of title 10 (relating to motor vehicles for members on change

of permanent station) provides as follows:

(d) When the Secretary concerned makes a determination under section 406( j) of title 37 that

the dependents of a member on a permanent change of station are unable to accompany the

member to an overseas duty station because of unexpected and uncontrollable circumstances,

and the member shipped a motor vehicle pursuant to this section in anticipation of a dependent

accompanying the member to the new duty station, the member may reship or transship such

motor vehicle in accordance with this section.

this subsection does not arrive at the authorized destination of the

vehicle by the designated delivery date, the Secretary concerned

shall reimburse the member for expenses incurred after that date

to rent a motor vehicle for the dependent’s use. The amount reimbursed may not exceed $30 per day, and the rental period for which

reimbursement may be provided expires after 7 days or on the date

on which the delayed vehicle arrives at the authorized destination

(whichever occurs first).

(4)(A) If a determination described in subparagraph (B) is

made with respect to a dependent of a member described in that

subparagraph and a request described in subparagraph (C) is made

by or on behalf of that dependent, the Secretary may provide a benefit authorized for a member under paragraph (1) or (3) to that dependent in lieu of providing such benefit to the member.

(B) A determination described in this subparagraph is a determination by the commanding officer of a member that—

(i) the member has committed a dependent-abuse offense

against a dependent of the member;

(ii) a safety plan and counseling have been provided to

that dependent;

(iii) the safety of the dependent is at risk; and

(iv) the relocation of the dependent is advisable.

(C) A request described in this subparagraph is a request by

the spouse of a member, or by the parent of a dependent child in

the case of a dependent child of a member, for relocation.

(D) Transportation may be provided under this paragraph for

household effects or a motor vehicle only if a written agreement of

the member, or an order of a court of competent jurisdiction, gives

possession of the effects or vehicle to the spouse or dependent of

the member concerned.

(E) In this paragraph, the term ‘‘dependent-abuse offense’’

means an offense described in section 1059(c) of title 10.

(i) A member traveling under orders who is relieved from a

duty station is entitled to transportation for his dependents, baggage, and household effects, plus a per diem for the member’s dependents, regardless of the time the dependents, baggage, or household effects arrive at their destination. Appropriations of the Department of Defense available for travel or transportation that are

current when the member is relieved may be used to pay for the

transportation.

(j ) 1 Under uniform regulations prescribed by the Secretaries

concerned, a member with dependents who is ordered to make an

overseas permanent change of station and who, in anticipation of

his dependents accompanying him overseas, ships baggage and

household effects to that overseas station, may be authorized a return shipment of the baggage and household effects if, after the

shipment, the member’s dependents are unable to accompany him
§ 406a TITLE 37—CH. 7—ALLOWANCES 174

overseas and the Secretary concerned determines that such inability was unexpected and uncontrollable.

(k) For the purposes of this section, the residence of a dependent of a member who is a student not living with the member while

at school shall be considered to be the permanent duty station of

the member or the designated residence of dependents of the member if the member’s dependents are not authorized to reside with

the member.

(l) No carrier, port agent, warehouseman, freight forwarder, or

other person involved in the transportation of property may have

any lien on, or hold, impound, or otherwise interfere with, the

movement of baggage and household goods being transported under

this section.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 473; amended P.L. 88–431, § 1(a), Aug. 14, 1964, 78 Stat.

439; P.L. 89–101, § 2, July 30, 1965, 79 Stat. 425; P.L. 89–680, § 1(2), (3), Oct. 15, 1966, 80 Stat.

957; P.L. 89–718, §§ 58, 59, Nov. 2, 1966, 80 Stat. 1123; P.L. 90–623, § 3(6), Oct. 22, 1968, 82

Stat. 1314, P.L. 96–107 § 841, Nov. 9, 1979, 93 Stat. 817; P.L. 96–513, § 506(7), Dec. 12, 1980,

94 Stat. 2919; P.L. 97–60, § 121(b), Oct. 14, 1981, 95 Stat. 1000; P.L. 96–86, § 404, Dec. 1, 1981,

95 Stat. 1105; P.L. 97–258, § 2(i)(1), Sept. 13, 1982, 96 Stat. 1061; P.L. 96–295, § 3(4), Oct. 12,

1982, 96 Stat. 1303; P.L. 98–94, § 909, Sept. 24, 1983, 97 Stat 638; P.L. 99–145, §§ 612(b),

614(a), 617(a), § 1303(b)(9), Nov. 8, 1985, 99 Stat. 639–641, 741; P.L. 99–433, § 602(f)(2), Oct.

1, 1986, 100 Stat. 1070; P.L. 99–661, §§ 617(a), 620(a), (b)(1), 652(a), (b), Nov. 14, 1986, 100 Stat.

3880, 3882, 3888; P.L. 100–180, § 616(b), Dec. 4, 1987, 101 Stat. 1096; P.L. 100–456, § 602(a),

Sept. 29, 1988, 102 Stat. 1976; P.L. 101–189, § 623, Nov. 29, 1989, 103 Stat. 1447; P.L. 101–

510, §§ 503(b), 622, 1484(i)(9), Nov. 5, 1990, 104 Stat. 1558, 1580, 1718, P.L. 102–25, § 702(b)(1),

(2) and (3), April 6, 1991, 105 Stat. 117; P.L. 102–190, § 1111(d)(4), Dec. 5, 1991, 105 Stat. 1492;

P.L. 102–484, § 622(a), § 1054(a)(4), Oct. 23, 1992, 106 Stat. 2422, 2502; P.L. 103–160, § 561(l)(1),

Nov. 30, 1993, 107 Stat. 1668; P.L. 104–106, §§ 623, 642(a)(1), 1502(b), 1505(d), Feb. 10, 1996,

110 Stat. 363, 368, 506, 514; P.L. 104–201, §§ 368(b), 621(a), 624, Sept. 23, 1996, 110 Stat. 2498,

2548; P.L. 105–85, § § 603(d)(1)(B), 631, Nov. 18, 1997, 111 Stat. 1782, 1795; P.L. 105–261,

§§ 561(f), 631(a), (b)(1), 632, 653(b) Oct. 16, 1998, 112 Stat. 2025, 2043, 2044, 2051; P.L. 106–

398, § 1 (§§ 571(f), 642(a), 643), Oct. 30, 2000, 114 Stat. 1654A–134, 161; P.L. 107–107, §§ 633(a),

634(a), Dec. 28, 2001, 115 Stat. 1144; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314;

P.L. 108–136, §§ 571, 631(b), Nov. 24, 2003, 117 Stat. 1484, 1508.)

§ 406a. Travel and transportation allowances: authorized for

travel performed under orders that are canceled,

revoked, or modified

Under uniform regulations prescribed by the Secretaries concerned, a member of a uniformed service is entitled to travel and

transportation allowances under section 404 of this title, and to

transportation of his dependents, baggage, and household effects

under sections 406 and 409 of this title, if otherwise qualified, for

travel performed before the effective date of orders that direct him

to make a change of station and that are later—

(1) canceled, revoked, or modified to direct him to return

to the station from which he was being transferred; or

(2) modified to direct him to make a different change of

station.

(Added P.L. 88–238, § 1(1), Dec. 23, 1963, 77 Stat. 475.)

§ 406b. Travel and transportation allowances: members of

the uniformed services attached to a ship overhauling or inactivating

(a) Under regulations prescribed by the Secretary concerned, a

member of the uniformed services who is on permanent duty

aboard a ship which is being overhauled or inactivated away from

its home port and whose dependents are residing at the home port

of the ship is entitled to transportation, transportation in kind, reimbursement for personally procured transportation, or an allow-
175 § 406c TITLE 37—CH. 7—ALLOWANCES

ance for transportation as provided in section 404(d)(3) of this title

for round-trip travel from the port of overhaul or inactivation to the

home port on or after the thirty-first calendar day, and every sixtieth calendar day after the thirty-first calendar day after the date

on which the ship enters the overhaul or inactivation port or after

the date on which the member becomes permanently attached to

the ship, whichever date is later. However, in no event shall the

amount of reimbursement for personally procured transportation or

allowance for transportation exceed the cost of Government-procured commercial round-trip air travel.

(b) Transportation in kind, reimbursement for personally procured transportation, or a monetary allowance in place of the cost

of transportation as provided in section 404(d)(1) of this title may

be provided, in lieu of the member’s entitlement to transportation,

for the member’s dependents from the location that was the home

port of the ship before commencement of overhaul or inactivation

to the port of overhaul or inactivation. The total reimbursement for

transportation for the member’s dependents may not exceed the

cost of Government-procured commercial round-trip travel.

(c) In any case in which a member of the uniformed services

is assigned to permanent duty aboard a ship that undergoes a

change of home port to the overhaul or inactivation port, the dependents of the member may be provided transportation allowances prescribed in subsections (a) and (b) in lieu of the transportation authorized by section 406 of this title and section 2634 of

title 10.

(d) Section 421 of this title does not apply with respect to

transportation or allowances provided under this section.

(Added P.L. 91–210, § 1(1), Mar. 13, 1970, 84 Stat. 53; amended P.L. 93–170, Nov. 29, 1973,

87 Stat. 689; P.L. 96–513, § 516(11), Dec. 12, 1980, 94 Stat. 2938; P.L. 97–22, § 11(b)(3)(A), July

10, 1981, 95 Stat. 138; P.L. 99–145, § 616(a), (c)(1), Nov. 8, 1985, 99 Stat. 641; P.L. 100–26,

§ 8(d)(7), Apr. 21, 1987, 101 Stat. 285; P.L. 100–180, § 1233(a)(3), Dec. 4, 1987, 101 Stat. 1161;

P.L. 101–189, § 624(b), Nov. 29, 1989, 103 Stat. 1448; P.L. 102–484, § 1054(a)(5), Oct. 23, 1992,

106 Stat. 2502.)

§ 406c. Travel and transportation allowances: members assigned to a vessel under construction

(a) ALLOWANCE AUTHORIZED.—(1) Under regulations prescribed

by the Secretary concerned, a member of the uniformed services

who is assigned to permanent duty aboard a ship that is under construction at a location other than—

(A) the designated home port of the ship; or

(B) the area where the dependents of the member are residing,

is entitled to transportation, or an allowance for transportation

under section 404(d)(3) of this title, for round-trip travel from the

port of construction to either of those locations as provided in paragraph (2).

(2) A member referred to in paragraph (1) shall be entitled to

such transportation or allowance on or after the thirty-first day

(and every sixtieth day after the thirty-first day) after the later

of—

(A) the date on which the ship enters the construction

port; and
§ 407 TITLE 37—CH. 7—ALLOWANCES 176

(B) the date on which the member becomes permanently

assigned to the ship.

(3) The amount of reimbursement for personally procured

transportation or the allowance for transportation under this subsection may not exceed the cost of Government-procured commercial round-trip air travel.

(b) DEPENDENTS TRAVEL.—(1) In lieu of the entitlement of a

member of the uniformed services to transportation under subsection (a), the Secretary concerned may provide transportation in

kind, reimbursement for personally procured transportation, or a

monetary allowance in place of the cost of transportation as provided in section 404(d)(1) of this title for the travel of the dependents of the member from the designated home port of the ship, or

the area where the dependents of the member are residing, to the

port of construction.

(2) The total reimbursement for transportation for the member’s dependents under paragraph (1) may not exceed the cost of

Government-procured commercial round-trip travel.

(c) CHANGE OF HOME PORT.—In any case in which a member

of the uniformed services assigned to permanent duty aboard a

ship that undergoes a change of home port to the port at which the

ship is being constructed, the dependents of such member may be

provided the transportation allowances prescribed in subsections

(a) and (b) in lieu of the transportation authorized by section 406

of this title and section 2634 of title 10.

(d) APPLICATION OF OTHER LAW.—Section 420 of this title does

not apply with respect to transportation or allowances provided

under this section.

(Added P.L. 101–189, § 624, Nov. 29, 1989, 103 Stat. 1447; amended P.L. 102–190, § 622, Dec.

5, 1991, 105 Stat. 1378.)

§ 407. Travel and transportation allowances: dislocation allowance

(a) ELIGIBILITY FOR PRIMARY DISLOCATION ALLOWANCE.—(1)

Under regulations prescribed by the Secretary concerned, a member of a uniformed service described in paragraph (2) is entitled to

a primary dislocation allowance at the rate determined under subsection (c) for the member’s pay grade and dependency status.

(2) A member of the uniformed services referred to in paragraph (1) is any of the following:

(A) A member who makes a change of permanent station

and the member’s dependents actually make an authorized

move in connection with the change, including a move by the

dependents—

(i) to join the member at the member’s duty station

after an unaccompanied tour of duty when the member’s

next tour of duty is an accompanied tour at the same station; and

(ii) to a location designated by the member after an accompanied tour of duty when the member’s next tour of

duty is an unaccompanied tour at the same duty station.

(B) A member whose dependents actually move pursuant

to section 405a(a), 406(e), 406(h), or 554 of this title.
177 § 407 TITLE 37—CH. 7—ALLOWANCES

(C) A member whose dependents actually move from their

place of residence under circumstances described in section

406a of this title.

(D) A member who is without dependents and—

(i) actually moves to a new permanent station where

the member is not assigned to quarters of the United

States; or

(ii) actually moves from a place of residence under circumstances described in section 406a of this title.

(E) A member who is ordered to move in connection with

the closure or realignment of a military installation and, as a

result, the member’s dependents actually move or, in the case

of a member without dependents, the member actually moves.

(F) A member whose dependents actually move from the

member’s place of residence in connection with the performance of orders for the member to report to the member’s first

permanent duty station if the move—

(i) is to the permanent duty station or a designated location; and

(ii) is an authorized move.

(G) Each of two members married to each other who—

(i) is without dependents;

(ii) actually moves with the member’s spouse to a new

permanent duty station; and

(iii) is assigned to family quarters of the United States

at or in the vicinity of the new duty station.

(3) If a primary dislocation allowance is paid under this subsection to a member described in subparagraph (C) or (D)(ii) of

paragraph (2), the member is not entitled to another dislocation allowance as a member described in subparagraph (A) or (E) of such

paragraph in connection with the same move.

(4) If a primary dislocation allowance is payable to two members described in paragraph (2)(G) who are married to each other,

the amount of the allowance payable to such members shall be the

amount otherwise payable under this subsection to the member in

the higher pay grade, or to either member if both members are in

the same pay grade. The allowance shall be paid jointly to both

members.

(b) SECONDARY ALLOWANCE AUTHORIZED UNDER CERTAIN CIRCUMSTANCES.—(1) Under regulations prescribed by the Secretary

concerned, whenever a member is entitled to a primary dislocation

allowance under subsection (a) as a member described in paragraph (2)(C) or (2)(D)(ii) of such subsection, the member is also entitled to a secondary dislocation allowance at the rate determined

under subsection (c) for the member’s pay grade and dependency

status if, subsequent to the member or the member’s dependents

actually moving from their place of residence under circumstances

described in section 406a of this title, the member or member’s dependents complete that move to a new location and then actually

move from that new location to another location also under circumstances described in section 406a of this title.

(2) If a secondary dislocation allowance is paid under this subsection, the member is not entitled to a dislocation allowance as a
§ 407 TITLE 37—CH. 7—ALLOWANCES 178

member described in paragraph (2)(A) or (2)(E) of subsection (a) in

connection with those moves.

(c) DISLOCATION ALLOWANCE RATES.—(1) The amount of the

dislocation allowance to be paid under this section to a member

shall be based on the member’s pay grade and dependency status

at the time the member becomes entitled to the allowance, except

that the Secretary concerned may not differentiate between members with dependents in pay grades E–1 through E–5.

(2) The initial rate for the dislocation allowance, for each pay

grade and dependency status, shall be equal to the rate in effect

for that pay grade and dependency status on December 31, 1997,

as adjusted by the average percentage increase in the rates of basic

pay for calendar year 1998. Effective on the same date that the

monthly rates of basic pay for members are increased for a subsequent calendar year, the Secretary of Defense shall adjust the rates

for the dislocation allowance for that calendar year by the percentage equal to the average percentage increase in the rates of basic

pay for that calendar year.

(d) FISCAL YEAR LIMITATION; EXCEPTIONS.—(1) A member is

not entitled to more than one dislocation allowance under this section during a fiscal year unless—

(A) the Secretary concerned finds that the exigencies of the

service require the member to make more than one change of

permanent station during the fiscal year;

(B) the member is ordered to a service school as a change

of permanent station;

(C) the member’s dependents are covered by section

405a(a), 406(e), 406(h), or 554 of this title; or

(D) subparagraph (C) or (D)(ii) of subsection (a)(2) or subsection (b) apply with respect to the member or the member’s

dependents.

(2) This subsection does not apply in time of national emergency or in time of war.

(e) FIRST OR LAST DUTY.—A member is not entitled to payment

of a dislocation allowance under this section when the member is

ordered from the member’s home to the member’s first duty station

(except as provided in subsection (a)(2)(F)) or from the member’s

last duty station to the member’s home.

(f) PARTIAL DISLOCATION ALLOWANCE.—(1) Under regulations

prescribed by the Secretary concerned, a member ordered to occupy

or vacate family housing provided by the United States to permit

the privatization or renovation of housing or for any other reason

(other than pursuant to a permanent change of station) may be

paid a partial dislocation allowance of $500.

(2) Effective on the same date that the monthly rates of basic

pay for all members are increased under section 1009 of this title

or another provision of law, the Secretary of Defense shall adjust

the rate of the partial dislocation allowance authorized by this subsection by the percentage equal to the average percentage increase

in the rates of basic pay.

(3) Subsections (c) and (d) do not apply to the partial dislocation allowance authorized by this subsection.

(g) RULE OF CONSTRUCTION.—For purposes of this section, a

member whose dependents may not make an authorized move in
179 § 409 TITLE 37—CH. 7—ALLOWANCES

connection with a change of permanent station is considered a

member without dependents.

(h) ADVANCE PAYMENT.—A dislocation allowance payable under

this section may be paid in advance.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 474; amended P.L. 89–26, § 1(3), (4), May 22, 1965, 79 Stat.

117; P.L. 89–718, § 60, Nov. 2, 1966, 80 Stat. 1123; P.L. 90–207, § 1(4), Dec. 16, 1967, 81 Stat.

651; P.L. 97–60, § 124, Oct. 14, 1981, 95 Stat. 1003; P.L. 99–145, § 611(a), Nov. 8, 1985, 99 Stat.

639; P.L. 99–661, § 619(a), Nov. 14, 1986, 100 Stat. 3881; P.L. 100–180, § 613, Dec. 4, 1987, 101

Stat. 1093, P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 104–106, § 624, Feb. 10,

1996, 110 Stat. 363; P.L. 104–201, § 622(a), Sept. 23, 1996, 110 Stat. 2548; P.L. 106–398, § 1

(§ 644), Oct. 30, 2000, 114 Stat. 1654A–161; P.L. 107–107, §§ 635, 636, Dec. 28, 2001, 115 Stat.

1144, 1145.)

§ 408. Travel and transportation allowances: travel within

limits of duty station

(a) A member of a uniformed service may be directed, by regulations of the head of the department or agency in which he is serving, to procure transportation necessary for conducting official business of the United States within the limits of his station. Expenses

so incurred by the member for train, bus, streetcar, taxicab, ferry,

bridge, and similar fares and tolls, or for the use of privately owned

vehicles at a fixed rate a mile plus parking fees, shall be defrayed

by the department or agency under which he is serving, or the

member is entitled to be reimbursed for the expenses.

(b)(1) Under regulations prescribed by the Secretary concerned,

a member of a uniformed service who performs emergency duty described in paragraph (2) is entitled to travel and transportation allowances under section 404 of this title for that duty.

(2) The emergency duty referred to in paragraph (1) is duty

that—

(A) is performed by a member under emergency circumstances that threaten injury to property of the Federal

Government or human life;

(B) is performed at a location within the limits of the

member’s station (other than at the residence or normal duty

location of the member);

(C) is performed pursuant to the direction of competent authority; and

(D) requires the member’s use of overnight accommodations.

(P.L. 87–649, Sept, 7, 1962, 76 Stat. 475; amended P.L. 99–145, § 619(a), Nov. 8, 1985, 99 Stat.

642; P.L. 100–26, § 8(d)(6), Apr. 21, 1987, 101 Stat. 285; P.L. 102–190, § 623, Dec. 5, 1991, 105

Stat. 1379.)

§ 409. Travel and transportation allowances: house trailers

and mobile homes

(a)(1) A member, or in the case of a member’s death, the member’s dependent, who would otherwise be entitled to transportation

of baggage and household effects under section 406 of this title,

may be provided transportation of a house trailer or mobile home

dwelling within the continental United States, within Alaska, or

between the continental United States and Alaska (or reimbursement for such transportation), if the house trailer or mobile home

dwelling is intended for use as a residence by such member or dependent. Such transportation may be limited to such modes and
§ 410 TITLE 37—CH. 7—ALLOWANCES 180

maximum costs as may be prescribed by regulations under subsection (d).

(2) Except as provided in subsection (c), transportation of a

house trailer or mobile home dwelling under paragraph (1) is in

place of the transportation of baggage and household effects the

member or member’s dependent would otherwise be entitled to

have provided.

(3) The cost of transportation of a house trailer or mobile home

dwelling under paragraph (1) may not be more than the total cost

of transportation (including packing, pick-up, line-haul or drayage,

delivery, and unpacking) of baggage and household effects of the

member or dependent having the maximum weight authorized for

the member or dependent under regulations prescribed by the Secretary concerned.

(4) A house trailer or mobile home dwelling in transit under

this section may be stored up to 180 days in accordance with regulations prescribed by the Secretary concerned.

(b) Any payment authorized by this section may be made in advance of the transportation concerned.

(c) A member or member’s dependent who is entitled to the

transportation of baggage and household effects from a place inside

the continental United States or Alaska to a place outside the continental United States or Alaska, or from a place outside the continental United States or Alaska to a place inside the continental

United States or Alaska, may be provided the transportation of a

house trailer or mobile home dwelling under this section, but the

total cost to the Government of the transportation of baggage and

household effects and the transport of a house trailer or mobile

home dwelling may not exceed the cost of transporting baggage and

household effects of the member or dependent having the maximum weight authorized for the member or dependent under regulations prescribed by the Secretary concerned.

(d) The Secretaries concerned shall prescribe regulations to

carry out this section.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 475; amended P.L. 88–406, Aug. 7, 1964, 78 Stat. 383; P.L.

89–718, §§ 61, 62, Nov. 2, 1966, 80 Stat. 1123; P.L. 90–246, Jan. 2, 1968, 81 Stat. 782; P.L. 96–

342, § 808(a)(1), Sept. 8, 1980, 94 Stat. 1096; P.L. 100–26, § 8(e)(6), Apr. 21, 1987, 101 Stat. 286,

P.L. 102–25, § 702(b)(1) and (2), April 6, 1991, 105 Stat. 117; P.L. 107–314, § 654(b)(3), Dec. 2,

2002, 116 Stat. 2582.)

§ 410. Travel and transportation allowances: miscellaneous

categories

(a) The following persons are entitled to such travel and transportation allowances provided by section 404 of this title, as prescribed by the Secretaries concerned—

(1) cadets of the United States Military Academy;

(2) midshipmen of the United States Naval Academy;

(3) cadets of the United States Air Force Academy;

(4) cadets of the Coast Guard Academy;

(5) applicants for enlistment;

(6) rejected applicants for enlistment;

(7) general prisoners;

(8) discharged prisoners;

(9) insane patients transferred from military hospitals to

other hospitals or to their homes; and
181 § 411a TITLE 37—CH. 7—ALLOWANCES

(10) persons discharged from Saint Elizabeths Hospital

after transfer from a uniformed service.

(b) The Secretary concerned shall, in prescribing allowances

under subsection (a), consider the rights of the United States, as

well as those of the persons concerned.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 475; amended P.L. 102–25, § 702(b)(1), April 6, 1991, 105

Stat. 117.)

§ 411. Travel and transportation allowances: administrative

provisions

(a) For the administration of sections 404 (a), (b), and (d)–(f),

404a, 405, 405a, 406(a)–(f), 407, 409, and 410 of this title, the Secretaries concerned shall prescribe regulations that are, as far as

practicable, uniform for all of the uniformed services.

(b) In establishing the rates and kinds of allowances authorized by the sections of this title designated by subsection (a), the

Secretaries concerned shall—

(1) consider the average cost of common carrier transportation, when prescribing a monetary allowance in place of

transportation;

(2) consider the current economic data on the cost of subsistence, including lodging and other necessary incidental expenses related thereto, when prescribing per diem rates and

designating areas as high cost areas; and

(3) consider the average cost of transportation and current

economic data on the cost of subsistence, including lodging and

other necessary incidental expenses relating thereto, when prescribing mileage allowances.

(c) The Secretaries concerned shall determine what constitutes

a travel status for the purposes of the sections of this title designated by subsection (a).

(d) The Secretary concerned shall define the term ‘‘permanent

station’’ for the purposes of the sections of this title designated by

subsection (a). The definition shall include a shore station or the

home yard or home port of a vessel to which a member of a uniformed service who is entitled to basic pay may be ordered. An authorized change in the home yard or home port of such a vessel is

a change of permanent station.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 476; amended P.L. 89–26, § 1(5), May 22, 1965, 79 Stat.

117; P.L. 96–343, § 5(b), Sept. 8, 1980, 94 Stat. 1126; P.L. 96–513, § 516(12), Dec. 12, 1980, 94

Stat. 2938; P.L. 97–60, § 122(b), Oct. 14, 1981, 95 Stat. 1003, P.L. 102–25, § 702(b)(1), April 6,

1991, 105 Stat. 117.)

§ 411a. Travel and transportation allowances: travel performed in connection with convalescent leave

(a) Under uniform regulations prescribed by the Secretaries

concerned, a member of a uniformed service is entitled to travel

and transportation allowances for travel from his place of medical

treatment in the continental United States to a place selected by

him and approved by the Secretary concerned, and return, when

the Secretary concerned determines that the member is traveling

in connection with authorized leave for convalescence from illness

or injury incurred while the member was eligible for the receipt of

hostile fire pay under section 310 of this title.
§ 411b TITLE 37—CH. 7—ALLOWANCES 182

(b) The allowances prescribed under this section may not be at

rates more than the rates authorized under section 404(d)(1) of this

title. Authorized travel under this section is performed in a duty

status.

(Added P.L. 90–207, § 9(1), Dec. 16, 1967, 81 Stat. 655.)

§ 411b. Travel and transportation allowances: travel performed in connection with leave between consecutive overseas tours

(a) ALLOWANCES AUTHORIZED.—Under uniform regulations prescribed by the Secretaries concerned, a member of a uniformed

service stationed outside the continental United States who is ordered to a consecutive tour of duty at the same duty station or who

is ordered to make a change of permanent station to another duty

station outside the continental United States may be paid travel

and transportation allowances in connection with authorized leave

from his last duty station to a place approved by the Secretary concerned, and from that place to his designated post of duty. Such allowances may be paid for the member and for the dependents of

the member who are authorized to, and do, accompany him at his

duty stations.

(b) AUTHORITY TO DEFER TRAVEL; LIMITATIONS.—(1) Under the

regulations referred to in subsection (a), a member may defer the

travel for which the member is paid travel and transportation allowances under this section until any time before the completion of

the consecutive tour at the same duty station or the completion of

the tour of duty at the new duty station under the order involved,

as the case may be.

(2) If a member is unable to undertake the travel before expiration of the deferral period under paragraph (1) because of duty

in connection with a contingency operation, the member may defer

the travel until not more than one year after the date on which the

member’s duty in connection with the contingency operation ends.

(c) LIMITATION ON ALLOWANCE RATE.—The allowances prescribed under this section may not exceed the rate authorized

under section 404(d) of this title. Authorized travel under this section is performed in a duty status.

(Added P.L. 93–213, § 1(1), Dec. 28, 1973, 87 Stat. 910; amended P.L. 97–60, § 125, Oct. 14,

1981, 95 Stat. 1003; P.L. 99–145, § 615(a), Nov. 8, 1985, 99 Stat. 641; P.L. 100–26, § 8(d)(8), Apr.

21, 1987, 101 Stat. 286; P.L. 100–180 § 614(d)(1), Dec. 4, 1987, 101 Stat. 1095; P.L. 102–190,

§ 624, Dec. 5, 1991, 105 Stat. 1379; P.L. 104–201, § 623(a), Sept. 23, 1996, 110 Stat. 2548; P.L.

107–107, § 637(a), Dec. 28, 2001, 115 Stat. 1146; P.L. 107–314, §§ 621, 654(b)(4), Dec. 2, 2002,

116 Stat. 2570, 2582.)

§ 411c. Travel and transportation allowances: travel performed in connection with rest and recuperative

leave from certain stations in foreign countries

(a) Under uniform regulations prescribed by the Secretaries

concerned, a member of a uniformed service who is serving at a

duty station outside the United States in an area specifically designated for the purposes of this section by the Secretary concerned

may be paid for or provided transportation for himself and his dependents authorized to reside at his duty station—
183 § 411d TITLE 37—CH. 7—ALLOWANCES

(1) to another location outside the United States having

different social, climatic, or environmental conditions than

those at the duty station at which the member is serving; or

(2) to a location in the United States.

(b) When the transportation authorized by subsection (a) is

provided by the Secretary concerned, the Secretary may use Government or commercial carriers. The Secretary concerned may limit

the amount of payments made to members under subsection (a).

(Added P.L. 97–60, § 126(a), Oct. 14, 1981, 95 Stat. 1003; amended P.L. 100–26, § 8(d)(9), Apr.

21, 1987, 101 Stat. 286; P.L. 105–261, § 633(a)(1), (b), Oct. 16, 1998, 112 Stat. 2044.)

§ 411d. Travel and transportation allowances: transportation

incident to personal emergencies for certain members and dependents

(a) Under uniform regulations prescribed by the Secretaries

concerned, transportation in accordance with subsection (b) may be

provided for a member of a uniformed service and for dependents

of that member authorized to reside at the member’s duty station

(or authorized to reside at another location and receive a station

allowance) incident to emergency leave granted for reasons of a

personal emergency (or in the case of transportation provided only

for a dependent, under circumstances involving a personal emergency similar to the circumstances for which emergency leave could

be granted a member).

(b)(1) In the case of a member stationed outside the continental

United States and the dependents of such a member, transportation under this section may be provided from the location of the

member or dependents, at the time notification of the personal

emergency is received, or the member’s permanent duty station

(and if the member’s dependents reside at another overseas location and receive a station allowance, from that location)—

(A) to the international airport in the continental United

States closest to the location from which the member and his

dependents departed;

(B) to any airport in the continental United States to

which travel can be arranged at the same or a lower cost as

travel obtained under subparagraph (A); or

(C) to an airport in Alaska, Hawaii, the Commonwealth of

Puerto Rico, any possession of the United States, or any other

location outside the continental United States, as determined

by the Secretary concerned.

(2) In the case of a member whose domicile is outside the continental United States and who is stationed in the continental

United States and the dependents of such a member, transportation under this section may be provided from the international

airport in the continental United States nearest the location of the

member and dependents at the time notification of the personal

emergency is received or the international airport nearest the

member’s permanent duty station to an international airport in

Alaska, Hawaii, the Commonwealth of Puerto Rico, a possession of

the United States, or any other location outside the continental

United States, as determined by the Secretary concerned.

(3) In the case of a member stationed outside the continental

United States whose dependents reside in the continental United
§ 411e TITLE 37—CH. 7—ALLOWANCES 184

States, transportation under this section may be provided for the

member as described in paragraph (1) and for the dependents as

described in paragraph (2).

(4) Whenever transportation is provided under this section, return transportation may be provided to the location from which the

member or dependent departed or the member’s duty station.

(c) Transportation under this section may be authorized only

upon a determination that, considering the nature of the personal

emergency involved, Government transportation is not reasonably

available. The cost of transportation authorized under this section

for a member, or the dependents of a member, may not exceed the

cost of Government-procured commercial air travel between the applicable locations described in subsection (b).

(Added P.L. 97–60, § 126(a), Oct. 14, 1981, 95 Stat. 1004; amended P.L. 98–525, § 612(a)(1), Oct.

19, 1984, 98 Stat. 2538; P.L. 100–26, § 8(e)(6), Apr. 21, 1987, 101 Stat. 286, P.L. 102–25,

§ 702(b)(1) and (2), April 6, 1991, 105 Stat. 117; P.L. 103–337, § 623, Oct. 5, 1994, 108 Stat.

2784; P.L. 106–65, § 633, Oct. 5, 1999, 113 Stat. 661; P.L. 107–314, § 654(b)(5), Dec. 2, 2002,

116 Stat. 2582.)

§ 411e. Travel and transportation allowances: transportation

incident to certain emergencies for members performing temporary duty

(a) Under uniform regulations prescribed by the Secretaries

concerned, a member of a uniformed service who is performing

temporary duty away from his permanent duty station (or who is

assigned to a ship or unit operating away from its home port) may

be provided the travel and transportation authorized by section 404

of this title for travel performed by the member from his place of

temporary duty (or from his ship or unit) to his permanent duty

station (or the home port of the ship or unit) or to any other location, and return (if applicable), if such travel has been approved incident to a personal emergency of the member.

(b) Transportation under this section may be authorized only

upon a determination that Government transportation is not reasonably available, considering the nature of the personal emergency involved. The cost of transportation authorized under this

section may not exceed the cost of Government-procured commercial air travel from the member’s place of temporary duty (or from

his ship or unit) to the member’s permanent duty station (or the

home port of the ship or unit), and return (if applicable).

(Added P.L. 97–60, § 126(a), Oct. 14, 1981, 95 Stat. 1004; amended P.L. 100–456, § 623(a), Sept.

29, 1988, 102 Stat. 1984.)

§ 411f. Travel and transportation allowances: transportation

for survivors of deceased member to attend the

member’s burial ceremonies

(a) ALLOWANCES AUTHORIZED.—(1) The Secretary concerned

may provide round trip travel and transportation allowances to eligible relatives of a member of the uniformed services who dies

while on active duty or inactive duty in order that the eligible relatives may attend the burial ceremony of the deceased member.

(2) The Secretary concerned may also provide round trip travel

and transportation allowances to an attendant who accompanies an

eligible relative provided travel and transportation allowances
185 § 411f TITLE 37—CH. 7—ALLOWANCES

under paragraph (1) for travel to the burial ceremony if the Secretary concerned determines that—

(A) the accompanied eligible relative is unable to travel

unattended because of age, physical condition, or other justifiable reason; and

(B) there is no other eligible relative of the deceased member traveling to the burial ceremony who is eligible for travel

and transportation allowances under paragraph (1) and is

qualified to serve as the attendant.

(b) LIMITATIONS.—(1) Except as provided in paragraphs (2) and

(3), allowances under subsection (a) are limited to travel and transportation to a location in the United States, Puerto Rico, and the

possessions of the United States and may not exceed the rates for

two days and the time necessary for such travel.

(2) If a deceased member was ordered or called to active duty

from a place outside the United States, Puerto Rico, or the possessions of the United States, the allowances authorized under subsection (a) may be provided to and from such place and may not

exceed the rates for two days and the time necessary for such travel.

(3) If a deceased member is interred in a cemetery maintained

by the American Battle Monuments Commission, the travel and

transportation allowances authorized under subsection (a) may be

provided to and from such cemetery and may not exceed the rates

for two days and the time necessary for such travel.

(c) ELIGIBLE RELATIVES.—(1) The following members of the

family of a deceased member of the uniformed services are eligible

for the travel and transportation allowances under subsection

(a)(1):

(A) The surviving spouse (including a remarried surviving

spouse) of the deceased member.

(B) The unmarried child or children of the deceased member referred to in section 401(a)(2) of this title.

(C) If no person described in subparagraph (A) or (B) is

provided travel and transportation allowances under subsection (a)(1), the parent or parents of the deceased member

(as defined in section 401(b)(2) of this title).

(2) If no person described in paragraph (1) is provided travel

and transportation allowances under subsection (a)(1), the travel

and transportation allowances may be provided to—

(A) the person who directs the disposition of the remains

of the deceased member under section 1482(c) of title 10, or,

in the case of a deceased member whose remains are commingled and buried in a common grave in a national cemetery, the

person who would have been designated under such section to

direct the disposition of the remains if individual identification

had been made; and

(B) up to two additional persons closely related to the deceased member who are selected by the person referred to in

subparagraph (A).

(d) EXPANDED ALLOWANCES RELATED TO RECOVERY OF REMAINS FROM VIETNAM CONFLICT.—(1) The Secretary of Defense

may provide round trip travel and transportation allowances for

the family of a deceased member of the armed forces who died
§ 411g TITLE 37—CH. 7—ALLOWANCES 186

while classified as a prisoner of war or as missing in action during

the Vietnam conflict and whose remains are returned to the United

States in order that the family members may attend the burial

ceremony of the deceased member.

(2) The allowances under paragraph (1) shall include round

trip transportation from the places of residence of such family

members to the burial ceremony and such living expenses and

other allowances as the Secretary of Defense considers appropriate.

(3) For purposes of paragraph (1), eligible family members of

the deceased member of the armed forces include the following:

(A) The surviving spouse (including a remarried surviving

spouse) of the deceased member.

(B) The child or children, including children described in

section 401(b)(1) of this title, of the deceased member.

(C) The parent or parents of the deceased member (as defined in section 401(b)(2) of this title).

(D) If no person described in subparagraph (A), (B), or (C)

is provided travel and transportation allowances under paragraph (1), any brothers, sisters, halfbrothers, halfsisters, stepbrothers, and stepsisters of the deceased member.

(e) BURIAL CEREMONY DEFINED.—In this section, the term

‘‘burial ceremony’’ includes the following:

(1) An interment of casketed or cremated remains.

(2) A placement of cremated remains in a columbarium.

(3) A memorial service for which reimbursement is authorized under section 1482(d)(2) of title 10.

(4) A burial of commingled remains that cannot be individually identified in a common grave in a national cemetery.

(f) REGULATIONS.—The Secretaries concerned shall prescribe

uniform regulations to carry out this section.

(Added P.L. 99–145, § 620(a)(1), Nov. 8, 1985, 99 Stat. 642; amended P.L. 100–456, § 632(b),

Sept. 29, 1988, 102 Stat. 1986; P.L. 103–35, § 204(a)(2), May 31, 1993, 107 Stat. 102; P.L. 107–

107, § 638(a), Dec. 28, 2001, 115 Stat. 1146.)

§ 411g. Travel and transportation allowances: transportation

incident to voluntary extensions of overseas tours

of duty

(a) Under regulations prescribed by the Secretary concerned, a

member of a uniformed service who—

(1) is stationed outside the United States; and

(2) voluntarily agrees to extend his overseas tour of duty

for a period equal to at least one-half of the overseas tour prescribed for his permanent duty station;

may be paid the transportation allowance described in subsection

(b) for himself and each dependent who is authorized to, and does,

accompany him.

(b) The transportation allowance authorized by subsection (a)

is an allowance provided—

(1) in connection with authorized leave; and

(2) for the cost of tranportation—

(A) from a member’s permanent duty station to a place

approved by the Secretary concerned and from that place

to his permanent duty station; or
187 § 411h TITLE 37—CH. 7—ALLOWANCES

(B) from a member’s permanent duty station to a place

no farther distant than his home of record (if he is a member without dependents) and from that place to his permanent duty station.

(c) The transportation allowance authorized by subsection (a)

may not be provided to an enlisted member who, with respect to

an extension of duty described in subsection (a)—

(1) elects to receive special pay under section 314 of this

title for duty performed during such extension of duty; or

(2) elects to receive rest and recuperative absence or transportation at Government expense, or any combination thereof,

under section 705 of title 10 for such extension of duty.

(d) The authority under this section shall expire on October 1,

1989.

(Added P.L. 100–180, § 614(a)(1), Dec. 4, 1987, 101 Stat. 1093; amended P.L. 100–456, § 624(a),

Sept. 29, 1988, 102 Stat. 1984; P.L. 101–189, § 653(c), Nov. 29, 1989, 103 Stat. 1462.)

§ 411h. Travel and transportation allowances: transportation

of family members incident to the serious illness or

injury of members

(a)(1) Under uniform regulations prescribed by the Secretaries

concerned, transportation described in subsection (c) may be provided for not more than two family members of a member described

in paragraph (2) if the attending physician or surgeon and the commander or head of the military medical facility exercising control

over the member determine that the presence of the family member may contribute to the member’s health and welfare.

(2) A member referred to in paragraph (1) is a member of the

uniformed services who—

(A) is serving on active duty, is entitled to pay and allowances under section 204(g) of this title (or would be so

entitled were it not for offsetting earned income described

in that section), or is retired for the illness or injury referred to in subparagraph (B);

(B) is seriously ill, seriously injured, or in a situation of

imminent death, whether or not electrical brain activity still

exists or brain death is declared; and

(C) is hospitalized in a medical facility in or outside the

United States.

(b)(1) In this section, the term ‘‘family member’’, with respect

to a member, means—

(A) the members’s spouse;

(B) children of the member (including stepchildren,

adopted children, and illegitimate children);

(C) parents of the member or persons in loco parentis to

the member, as provided in paragraph (2); and

(D) siblings of the member.

(2) Parents of a member or persons in loco parentis to a member include fathers and mothers through adoption and persons who

stood in loco parentis to the member for a period not less than one

year immediately before the member entered the uniformed service. However, only one father and one mother or their counterparts

in loco parentis may be recognized in any one case.
§ 411i TITLE 37—CH. 7—ALLOWANCES 188

(3) In this section, the term ‘‘health and welfare’’, with respect

to a member, includes a situation in which a decision must be

made by family members regarding the termination of artificial life

support being provided to the member.

(c) The transportation authorized by subsection (a) is roundtrip transportation between the home of the family member and

the location of the medical facility in which the member is hospitalized.

(d)(1) The transportation authorized by subsection (a) may be

provided by any of the following means:

(A) Transportation in-kind.

(B) A monetary allowance in place of transportation inkind at a rate to be prescribed by the Secretaries concerned.

(C) Reimbursement for the commercial cost of transportation.

(2) An allowance payable under this subsection may be paid in

advance.

(3) Reimbursement payable under this subsection may not exceed the cost of government-procured commercial round-trip air

travel.

(Added P.L. 100–180, § 615(a)(1), Dec. 4, 1987, 101 Stat. 1095; amended P.L. 100–456, § 632(a),

Sept. 29, 1988, 102 Stat. 1985; P.L. 103–337, § 624, Oct. 5, 1994, 108 Stat. 2785; P.L. 108–136,

§ 632, Nov. 24, 2003, 117 Stat. 1508.)

§ 411i. Travel and transportation allowances: parking expenses

(a) REIMBURSEMENT AUTHORITY.—Under regulations prescribed by the Secretary of Defense, the Secretary of a military department may reimburse eligible Department of Defense personnel

for expenses incurred after October 1, 2001, for parking a privately

owned vehicle at a place of duty described in subsection (b).

(b) ELIGIBILITY.—A member of the Army, Navy, Air Force, or

Marine Corps or an employee of the Department of Defense may

be reimbursed under subsection (a) for parking expenses while—

(1) assigned to duty as a recruiter for any of the armed

forces;

(2) assigned to duty at a military entrance processing facility of the armed forces; or

(3) detailed for instructional and administrative duties at

any institution where a unit of the Senior Reserve Officers’

Training Corps is maintained.

(Added P.L. 106–398, § 1 (§ 645(a)), Oct. 30, 2000, 114 Stat. 1654A–161.)

§ 412. Appropriations for travel: may not be used for attendance at certain meetings

Appropriations of the Department of Defense that are available

for travel may not, without the approval of the Secretary concerned

or his designee, be used for expenses incident to attendance of a

member of an armed force under that department at a meeting of

a technical, scientific, professional, or similar organization.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 476.)
189 § 413 TITLE 37—CH. 7—ALLOWANCES

§ 413. Chairman and Vice Chairman of the Joint Chiefs of

Staff

The Chairman and Vice Chairman of the Joint Chiefs of Staff

are entitled to the allowances provided by law for the Chief of Staff

of the Army.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 476; amended P.L. 100–180, § 1314(c)(1), Dec. 4, 1987, 101

Stat. 1176.)

§ 414. Personal money allowance

(a) ALLOWANCE FOR OFFICERS SERVING IN CERTAIN RANKS OR

POSITIONS.—In addition to other pay or allowances authorized by

this title, an officer who is entitled to basic pay is entitled to a personal money allowance of—

(1) $500 a year, while serving in the grade of lieutenant

general or vice admiral, or in an equivalent grade or rank;

(2) $1,200 a year, in place of any other personal money allowance authorized by this section, while serving as Surgeon

General of the Public Health Service;

(3) $2,200 a year, in addition to the personal money allowance authorized by clause (1), while serving as a senior member of the Military Staff Committee of the United Nations;

(4) $2,200 a year, while serving in the grade of general or

admiral or in an equivalent grade or rank; or

(5) $4,000 a year, in place of any other personal money allowance authorized by this section, while serving as Chief of

Staff of the Army, Chief of Naval Operations, Chief of Staff of

the Air Force, Commandant of the Marine Corps, or Commandant of the Coast Guard.

(b) ALLOWANCE FOR CERTAIN NAVAL OFFICERS.—In addition to

other pay or allowances authorized by law, an officer who is serving in one of the following positions is entitled to the amount set

forth for that position, to be paid annually out of naval appropriations for pay, and to be spent in his discretion for the contingencies

of his position—

(1) Superintendent of the Naval Postgraduate School—

$400;

(2) Commandant of Midshipmen at the Naval Academy—

$800;

(3) President of the Naval War College—$1,000;

(4) Superintendent of the Naval Academy—$5,200; and

(5) Director of Naval Intelligence—$5,200.

(c) ALLOWANCE FOR SENIOR ENLISTED MEMBERS.—In addition

to other pay or allowances authorized by this title, a noncommissioned officer is entitled to a personal money allowance of $2,000

a year while serving as the Sergeant Major of the Army, the Master Chief Petty Officer of the Navy, the Chief Master Sergeant of

the Air Force, the Sergeant Major of the Marine Corps, or the Master Chief Petty Officer of the Coast Guard.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 476; amended P.L. 89–718, § 49(a)(2), Nov. 2, 1966, 80 Stat.

1121; P.L. 102–25, § 702(b)(2), April 6, 1991, 105 Stat. 117; P.L. 106–398, § 1 (§ 609), Oct. 30,

2000, 114 Stat. 1654A–149.)
§ 415 TITLE 37—CH. 7—ALLOWANCES 190

1The sections of title 10 referred to in section 416(a) refer to appointments resulting from enrollment in a Senior ROTC program.

§ 415. Uniform allowance: officers; initial allowance

(a) Subject to subsection (b), an officer of an armed force is entitled to an initial allowance of not more than $400 as reimbursement for the purchase of required uniforms and equipment—

(1) upon first reporting for active duty (other than for

training) for a period of more than 90 days;

(2) upon completing at least 14 days of active duty as a

member of a reserve component;

(3) upon completing 14 periods, each of which was of at

least two hours’ duration, of inactive-duty training as a member of the Ready Reserve; or

(4) upon reporting for the first period of active duty required by section 2121(c) of title 10 as a member of the Armed

Forces Health Professions Scholarship program.

(b) An officer who has received an initial uniform reimbursement or allowance under any other law is not entitled to an initial

allowance under subsection (a).

(c) An allowance of $250 for uniforms and equipment may be

paid to each commissioned officer of the Public Health Service who

is—

(1) on active duty or on inactive duty training status; and

(2) required by directive of the Surgeon General to wear a

uniform.

An officer is not entitled to more than one allowance under this

subsection.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 477; amended P.L. 88–647, Title II, § 202(3), Oct. 13, 1964,

78 Stat. 1070; P.L. 89–444, § 2(1), June 9, 1966, 80 Stat. 198; P.L. 89–718, § 63, Nov. 2, 1966,

80 Stat. 1123; P.L. 90–83, § 5(1), Sept. 11, 1967, 81 Stat. 221; P.L. 91–278, § 3(3), June 12, 1970,

84 Stat. 306; P.L. 96–76, Title III, § 313(c), Sept. 29, 1979, 93 Stat. 586; P.L. 96–513, Title IV,

§ 412, Dec. 12, 1980, 94 Stat. 2905; P.L. 97–22, § 10(c), July 10, 1981, 95 Stat. 137; P.L. 97–

60, Title I, § 131(a), Oct. 14, 1981, 95 Stat. 1005, P.L. 102–25, § 702(b)(1), April 6, 1991, 105

Stat. 117; P.L. 106–398, § 1 (§ 610(a)), Oct. 30, 2000, 114 Stat. 1654A–150.)

§ 416. Uniform allowance: officers; additional allowances

(a) In addition to the allowance provided by section 415 of this

title, a reserve officer of an armed force, an officer of the Army or

the Air Force without specification of component, or a regular officer of an armed force appointed under section 2106 or 2107 of title

10 1 is entitled to not more than $200 as reimbursement for additional uniforms and equipment required on that duty, for each time

that the officer enters on active duty for a period of more than 90

days.

(b) Subsection (a) does not apply to a tour of active duty if—

(1) the officer, during that tour or within a period of two

years before entering on that tour, received, under any law, an

initial uniform reimbursement or allowance of more than $400;

or

(2) the officer enters on that tour within two years after

completing a period of active duty of more than 90 days duration.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 477; amended P.L. 88–624, § 1, Oct. 3, 1964, 78 Stat. 1002;

P.L. 88–647, § 202(3), Oct. 13, 1964, 78 Stat. 1070; P.L. 89–718, § 63, Nov. 2, 1966, 80 Stat. 1123,

P.L. 95–513, § 516(13), Dec. 12, 1980, 94 Stat. 2938; P.L. 101–189, § 663, Nov. 29, 1989, 103
191 § 418 TITLE 37—CH. 7—ALLOWANCES

Stat. 1465; P.L. 106–398, § 1 (§ 610(b)), Oct. 30, 2000, 114 Stat. 1654A–150; P.L. 107–107,

§ 606(a), Dec. 28, 2001, 115 Stat. 1134.)

§ 417. Uniform allowance: officers; general provisions

(a) Subject to standards, policies, and procedures prescribed by

the Secretary of Defense, the Secretary of each military department

may prescribe regulations that he considers necessary to carry out

sections 415(a)–(c) and 416 of this title within his department. The

Secretary of Homeland Security, with the concurrence of the Secretary of the Navy, may prescribe regulations that he considers

necessary to carry out those sections for the Coast Guard when it

is not operating as a service in the Navy. As far as practicable, regulations for all reserve components shall be uniform.

(b) Under regulations approved by the Secretary of Defense, or

by the Secretary of Homeland Security with respect to the Coast

Guard when it is not operating as a service in the Navy, and subject to section 415(a)–(c) or 416 of this title, a reserve officer of an

armed force who has received a uniform and equipment allowance

under section 415(a)–(c) or 416 of this title, may, if a different uniform is required, be paid a uniform and equipment reimbursement

upon transfer to, or appointment in, another reserve component.

(c) For the purposes of sections 415(a)–(c) and 416 of this title

and subsections (a) and (b), an officer may count only that duty for

which he is required to wear a uniform.

(d)(1) For purposes of sections 415 and 416 of this title, a period for which an officer of an armed force, while employed as a

National Guard technician, is required to wear a uniform under

section 709(b) of title 32 shall be treated as a period of active duty

(other than for training).

(2) A uniform allowance may not be paid, and uniforms may

not be furnished, to an officer under section 1593 of title 10 or section 5901 of title 5 for a period of employment referred to in paragraph (1) for which an officer is paid a uniform allowance under

section 415 or 416 of this title.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 478; amended P.L. 90–623, § 3(1), Oct. 22, 1968, 82 Stat.

1314, P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 104–106, § 1038(b), Feb. 10,

1996, 110 Stat. 432; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314.)

§ 418. Clothing allowance: enlisted members

(a) The Secretary of Defense and the Secretary of Homeland

Security, with respect to the Coast Guard when it is not operating

as a service in the Navy, may prescribe the quantity and kind of

clothing to be furnished annually to an enlisted member of the

armed forces or the National Guard, and may prescribe the amount

of a cash allowance to be paid to such a member if clothing is not

so furnished to him.

(b) In determining the quantity and kind of clothing or allowances to be furnished pursuant to regulations prescribed under this

section to persons employed as National Guard technicians under

section 709 of title 32, the Secretary of Defense shall take into account the requirement under subsection (b) of such section for such

persons to wear a uniform.

(c) A uniform allowance may not be paid, and uniforms may

not be furnished, under section 1593 of title 10 or section 5901 of

title 5 to a person referred to in subsection (b) for a period of em-
§ 419 TITLE 37—CH. 7—ALLOWANCES 192

1Section 717 of title 10, referred to in section 420, authorizes participation by service members in certain international sporting events and authorizes funds to support such participation.

ployment referred to in that subsection for which clothing is furnished or a uniform allowance is paid under this section.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 478; amended P.L. 104–106, § 1038(c), Feb. 10, 1996, 110

Stat. 432; P.L. 104–201, § 654, Sept. 23, 1996, 110 Stat. 2583; P.L. 106–398, § 1 (§ 611), Oct. 30,

2000, 114 Stat. 1654A–150; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314.)

§ 419. Civilian clothing allowance

Under regulations prescribed by the Secretary of Defense, an

officer of the armed force who is assigned to a permanent duty station at a location outside the United States may be paid a civilian

clothing allowance in such amount as the Secretary shall determine under regulations if such officer is required to wear civilian

clothing all or a substantial portion of the time in the performance

of the officer’s official duties. A clothing allowance under this section is in addition to any uniform allowance to which an officer is

otherwise entitled under this title.

(Added P.L. 100–180, § 611(a)(1)(B), Dec. 4, 1987, 101 Stat. 1093; amended P.L. 100–456, § 625,

Sept. 29, 1988, 102 Stat. 1984; P.L. 101–189, § 653(c), Nov. 29, 1989, 103 Stat. 1462.)

§ 420. Allowances while participating in international sports

(a) Section 717 of title 10 1 does not authorize the payment of

allowances at higher rates than those provided for participation in

military activities not covered by that section.

(b) Notwithstanding any other law, a member of a uniformed

service is not entitled to travel and transportation allowances

under sections 404–411 of this title for any period during which his

expenses for travel or transportation are being paid by the agency

sponsoring his participation in a competition covered by section 717

of title 10.

(c) Notwithstanding any other law, a member of a uniformed

service who has no dependents is not entitled to the basic allowances for subsistence and housing authorized by sections 402 and

403 of this title for a period during which he is subsisted and quartered by the agency sponsoring his participation in a competition

covered by section 717 of title 10.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 478, § 419; amended P.L. 89–718, § 64, Nov. 2, 1966, 80

Stat. 1123; renumbered § 420, P.L. 100–180, § 611(a)(1)(A), Dec. 4, 1987, 101 Stat. 1093; amended P.L. 105–85, § 603(d)(1)(C), Nov. 18, 1997, 111 Stat. 1782.)

§ 421. Allowances: no increase while dependent is entitled to

basic pay

A member of a uniformed service may not be paid an increased

allowance under this chapter, on account of a dependent, for any

period during which that dependent is entitled to basic pay under

section 204 of this title.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 479; § 420; renumbered § 421, P.L. 100–180, § 611(a)(1)(A),

Dec. 4, 1987, 101 Stat. 1093.)

§ 422. Cadets and midshipmen

(a) A cadet at the United States Military Academy, the United

States Air Force Academy, or the Coast Guard Academy, or a midshipman at the United States Naval Academy, is entitled to the allowances provided by law for a midshipman in the Navy, and to
193 § 424 TITLE 37—CH. 7—ALLOWANCES

2The reference in section 422(c) to section 2107 of title 10, United States Code, relates to appointments resulting from enrollment in a Senior ROTC program.

travel and transportation allowances prescribed under section 410

of this title, while traveling under orders as a cadet or midshipman.

(b) Each midshipman of the Navy to whom a Navy ration is

not furnished is entitled to the commuted value of the ration in

money for each day that he is on active duty, including each day

that he is on leave. The Secretary of the Navy may prescribe regulations stating the conditions under which the commuted value

shall be allowed and may prescribe regulations establishing the

rates at which the ration shall be commuted.

(c) A cadet or midshipman appointed under section 2107 of

title 10 2 is entitled to the same allowances as are provided for cadets and midshipmen at the United States Military, Naval, and Air

Force Academies for—

(1) initial travel to the educational institution in which

matriculated;

(2) travel while under orders; and

(3) travel on discharge.

However, no allowance for travel on discharge may be paid to a discharged cadet or midshipman who continues his scholastic instruction at the same educational institution.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 479; amended P.L. 88–647, § 202(4), Oct. 13, 1964, 78 Stat.

1070; P.L. 89–718, § 63, Nov. 2, 1966, 80 Stat. 1123.)

§ 423. Validity of allowance payments based on purported

marriages

A payment of an allowance, based on a purported marriage,

that is made under this chapter, under the Career Compensation

Act of 1949, or under the Pay Readjustment Act of 1942, before judicial annulment or termination of that marriage, is valid, if a

court of competent jurisdiction adjudges or decrees that the marriage was entered into in good faith on the part of the spouse who

is a member of a uniformed service or if, in the absence of such a

judgment or decree, such a finding of good faith is made by the Secretary concerned or by a person designated by him to investigate

the matter.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 479.)

§ 424. Band leaders

(a) The leader of the Army Band is entitled to the allowances

of a captain in the Army.

(b) The leader of the United States Navy Band is entitled to

the allowances of a lieutenant in the Navy.

(c) A member of the Marine Corps who is appointed as director

or assistant director of the United States Marine Corps Band under

section 6222 of title 10 is entitled, while serving thereunder, only

to the allowances of an officer in the grade in which he is serving.

However, his allowances may not be less than those to which he

was entitled at the time of his appointment under that section.

(d) The leader of the Naval Academy Band is entitled to the

allowances of the pay grade prescribed for him by the Secretary of
§ 425 TITLE 37—CH. 7—ALLOWANCES 194

1For temporary increase in the authorized amount of family separation allowance, see subsection (e) of this section, as added by section 606 of the National Defense Authorization Act

for Fiscal Year 2004 (Public Law 108–136; 117 Stat. 1500), and section 1316 of the Emergency

Wartime Supplemental Appropriations Act, 2003 (Public Law 108–11; 117 Stat. 570).

the Navy under section 207(e) of this title. The second leader is entitled to the allowances of a warrant officer, W–1.

(e) The director of the Coast Guard Band is entitled to the allowances of an officer in the grade in which he is serving. However,

his allowances may not be less than those to which he was entitled

at the time of his appointment as director.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 480; amended P.L. 89–189, § 3, Sept. 17, 1965, 79 Stat.

820; P.L. 95–551, § 3(b)(2), Oct. 30, 1978, 92 Stat. 2069.)

§ 425. United States Navy Band; United States Marine Corps

Band: allowances while on concert tour

While on concert tours approved by the President, the members of the United States Navy Band and the United States Marine

Corps Band do not forfeit allowances.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 480.)

ø§ 426. Repealed. P.L. 90–377, § 10, 82 Stat. 288.¿

§ 427. Family separation allowance

(a) ENTITLEMENT TO ALLOWANCE.—(1) In addition to any allowance or per diem to which he otherwise may be entitled under this

title a member of a uniformed service with dependents is entitled

to a monthly allowance equal to $100 1 if—

(A) the movement of his dependents to his permanent station or a place near that station is not authorized at the expense of the United States under section 406 of this title and

his dependents do not reside at or near that station;

(B) he is on duty on board a ship away from the home port

of the ship for a continuous period of more than 30 days; or

(C) he is on temporary duty away from his permanent station for a continuous period of more than 30 days and his dependents do not reside at or near his temporary duty station.

(2) A member who becomes entitled to an allowance under this

subsection by virtue of duty prescribed in subparagraph (B) or (C)

of paragraph (1) for a continuous period of more than 30 days is

entitled to the allowance effective as of the earlier of—

(A) the first day of that period; or

(B) the first day the member ceased being entitled to a

previous allowance under this subsection by reason of the end

of duty prescribed in such subparagraphs, if the member

ceased being entitled to the previous allowance within 30 days

before the first day of that period.

(b) ENTITLEMENT WHEN NO RESIDENCE OR HOUSEHOLD MAINTAINED FOR DEPENDENTS.—An allowance is payable under subsection (a) even though the member does not maintain for his primary dependents who would otherwise normally reside with him,

a residence or household, subject to his management and control,

which he is likely to share with them as a common household when

his duty assignment permits.
195 § 429 TITLE 37—CH. 7—ALLOWANCES

(c) EFFECT OF ELECTION TO SERVE UNACCOMPANIED TOUR OF

DUTY.—(1) Except as provided in paragraph (2) or (3), a member

who elects to serve a tour of duty unaccompanied by his dependents at a permanent station to which the movement of his dependents is authorized at the expense of the United States under section 406 of this title is not entitled to an allowance under subsection (a)(1)(A).

(2) The prohibition in the first sentence of paragraph (1) does

not apply to a member who elects to serve an unaccompanied tour

of duty because a dependent cannot accompany the member to or

at that permanent station for certified medical reasons.

(3) The Secretary concerned may waive paragraph (1) in situations in which it would be inequitable to deny the allowance to the

member because of unusual family or operational circumstances.

(d) ENTITLEMENT WHILE SPOUSE ENTITLED TO BASIC PAY.—A

member married to another member of the uniformed services becomes entitled, regardless of any other dependency status, to an allowance under subsection (a) by virtue of duty prescribed in subparagraph (A), (B), or (C) of paragraph (1) of such subsection if the

members were residing together immediately before being separated by reasons of execution of military orders. Section 421 of this

title does not apply to bar the entitlement to an allowance under

this section. However, not more than one monthly allowance may

be paid with respect to a married couple under this section.

(e) TEMPORARY INCREASE IN AUTHORIZED AMOUNT OF ALLOWANCE.—For the period beginning on October 1, 2003, and ending on

December 31, 2004, the monthly allowance authorized by subsection (a)(1) shall be increased to $250.

(Added P.L. 88–132, § 11(1), Oct. 2, 1963, 77 Stat. 217; amended P.L. 91–529, § 1, Dec. 7, 1970,

84 Stat. 1389; P.L. 91–533, § 1, Dec. 7, 1970, 84 Stat. 1392; P.L. 96–342, § 809(a), Sept. 8, 1980,

94 Stat. 1097; P.L. 99–145, § 607(a), Nov. 8, 1985, 99 Stat. 639; P.L. 99–661, § 618(a), Nov. 14,

1986, 100 Stat. 3880, P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 102–190,

§ 611(b) and 625, Dec. 5, 1991, 105 Stat. 1376 and 1379; P.L. 103–337, § 625(a), Oct. 5, 1994,

108 Stat. 2785; P.L. 104–106, § 606, Feb. 10, 1996, 110 Stat. 358; P.L. 104–201, § 607, Sept. 23,

1996, 110 Stat. 2542; P.L. 105–85, §§ 603(c)(3), 626, Nov. 18, 1997, 111 Stat. 1781, 1795; P.L.

107–107, § 607(a), Dec. 28, 2001, 115 Stat. 1134; P.L. 108–136, § 606, Nov. 24, 2003, 117 Stat.

1500.)

§ 428. Allowance for recruiting expenses

In addition to other pay or allowances authorized by law, and

under uniform regulations prescribed by the Secretaries concerned,

a member who is assigned to recruiting duties for his armed force

may be reimbursed for actual and necessary expenses incurred in

connection with those duties.

(Added P.L. 92–129, § 205(a), Sept. 28, 1971, 85 Stat. 359.)

§ 429. Travel and transportation allowances: minor dependent schooling

Under regulations to be prescribed by the Secretary of Defense,

a member of a uniformed service whose permanent station is outside the United States may be allowed transportation in kind for

any minor dependent (or reimbursement thereof), or a monetary allowance in place of such transportation in kind, to a school operated by the Department of Defense under the Defense Dependents’

Education Act of 1978 (20 U.S.C. 921 et seq.) for dependents in an

overseas area which is operated, and which such dependent at-
§ 430 TITLE 37—CH. 7—ALLOWANCES 196

tends, on a 5-day-a-week dormitory basis or on a 7-day-a-week dormitory basis. In the case of a dependent attending a school on a

5-day-a-week dormitory basis, the transportation in kind or allowance authorized by this section shall be for weekly trips to and

from such school, and in the case of a dependent attending a school

on a 7-day-a-week dormitory basis, such transportation in kind or

allowances shall be for not less than three trips to and from such

school during the school year.

(Added P.L. 95–561, § 1407, Nov. 1, 1978, 92 Stat, 2367; amended P.L. 99–145, § 1303(b)(10),

Nov. 8, 1985, 99 Stat. 741.)

§ 430. Travel and transportation: dependent children of

members stationed overseas

(a) AVAILABILITY OF ALLOWANCE.—(1) Under regulations prescribed by the Secretary of Defense, a member of a uniformed service may be paid the allowance set forth in subsection (b) if the

member—

(A) is assigned to a permanent duty station outside the

continental United States;

(B) is accompanied by the member’s dependents at or near

that duty station (unless the member’s only dependents are in

the category of dependent described in paragraph (2)); and

(C) has an eligible dependent child described in paragraph

(2).

(2) An eligible dependent child of a member referred to in

paragraph (1)(C) is a child who—

(A) is under 23 years of age and unmarried;

(B) is enrolled in a school in the continental United States

for the purpose of obtaining a formal education; and

(C) is attending that school or is participating in a foreign

study program approved by that school and, pursuant to that

foreign study program, is attending a school outside the United

States for a period of not more than one year.

(b) ALLOWANCE AUTHORIZED.—(1) A member described in subsection (a) may be paid a transportation allowance for each eligible

dependent child of the member of one annual trip between the

school being attended by that child and the member’s duty station

outside the continental United States and return. The allowance

authorized by this section may be transportation in kind or reimbursement therefor, as prescribed by the Secretaries concerned.

However, the transportation authorized by this section may not be

paid a member for a child attending a school in the continental

United States for the purpose of obtaining a secondary education

if the child is eligible to attend a secondary school for dependents

that is located at or in the vicinity of the duty station of the member and is operated under the Defense Dependents’ Education Act

of 1978 (20 U.S.C. 921 et seq.).

(2) At the option of the member, in lieu of the transportation

of baggage of a dependent child under paragraph (1) from the dependent’s school in the continental United States, the Secretary

concerned may pay or reimburse the member for costs incurred to

store the baggage at or in the vicinity of the school during the dependent’s annual trip between the school and the member’s duty

station or during a different period in the same fiscal year selected
197 § 431 TITLE 37—CH. 7—ALLOWANCES

by the member. The amount of the payment or reimbursement may

not exceed the cost that the Government would incur to transport

the baggage.

(3) The transportation allowance paid under paragraph (1) for

an annual trip of an eligible dependent child who is attending a

school outside the United States may not exceed the transportation

allowance that would be paid under this section for the annual trip

of that child between the child’s school in the continental United

States and the member’s duty station outside the continental

United States and return.

(c) USE OF AIRLIFT AND SEALIFT COMMAND.—Whenever possible, the Air Mobility Command or Military Sealift Command shall

be used, on a space-required basis, for the travel authorized by this

section.

(d) ATTENDANCE AT SCHOOL IN ALASKA OR HAWAII.—For a

member assigned to duty outside the continental United States,

transportation under this section may be provided a dependent

child as described in subsection (a)(2) who is attending a school in

Alaska or Hawaii.

(e) EXCEPTION.—The transportation allowance authorized by

this section (whether transportation in kind or reimbursement)

may not be paid in the case of a member assigned to a permanent

duty station in Alaska or Hawaii for a child attending a school in

the State of the permanent duty station.

(f) DEFINITIONS.—In this section:

(1) The term ‘‘formal education’’ means the following:

(A) A secondary education.

(B) An undergraduate college education.

(C) A graduate education pursued on a full-time basis

at an institution of higher education.

(D) Vocational education pursued on a full-time basis

at a postsecondary vocational institution.

(2) The term ‘‘institution of higher education’’ has the

meaning given that term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001).

(3) The term ‘‘postsecondary vocational institution’’ has the

meaning given that term in section 102(c) of the Higher Education Act of 1965 (20 U.S.C. 1002(c)).

(Added P.L. 98–94, § 910(a)(1), Sept. 24, 1983, 97 Stat. 639; amended P.L. 101–189, § 625, Nov.

29, 1989, 103 Stat. 1448; P.L. 101–510, § 1484(e), Nov. 5, 1991, 104 Stat. 1717; P.L. 102–25,

§ 702(b)(1) and (2), April 6, 1991, 105 Stat. 117; P.L. 105–261, § 634, Oct. 16, 1998, 112 Stat.

2044; P.L. 106–398, § 1 (§ 646), Oct. 30, 2000, 114 Stat. 1654A–162; P.L. 107–107, §§ 639(a)–(c),

931(c), Dec. 28, 2001, 115 Stat. 1148, 1200; P.L. 107–314, § 654(b)(6), Dec. 2, 2002, 116 Stat.

2582; P.L. 108–136, § 633, Nov. 24, 2003, 117 Stat. 1509.)

§ 431. Benefits for certain members assigned to the Defense

Intelligence Agency

(a) The Secretary of Defense may provide to members of the

armed forces described in subsection (e) allowances and benefits

comparable to those provided by the Secretary of State to officers

and employees of the Foreign Service under paragraphs (2), (3), (4),

(6), (7), (8), and (13) of section 901 and sections 705 and 903 of the

Foreign Service Act of 1980 (22 U.S.C. 4081 (2), (3), (4), (6), (7), (8),

and (13), 4025, 4083) and under section 5924(4) of title 5.
§ 432 TITLE 37—CH. 7—ALLOWANCES 198

(b) The authority of the Secretary of Defense to make payments under subsection (a) is effective for any fiscal year only to

the extent that appropriated funds are available for such purpose.

(c) Members of the armed forces may not receive benefits

under both subsection (a) and any other provision of this title for

the same purpose. The Secretary of Defense shall prescribe such

regulations as may be necessary to carry out this subsection.

(d) Regulations prescribed under subsection (a) may not take

effect until the Secretary of Defense has submitted such regulations to—

(1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and

(2) the Committee on Armed Services and the Permanent

Select Committee on Intelligence of the House of Representatives.

(e) Subsection (a) applies to members of the armed forces

who—

(1) are assigned—

(A) to Defense Attache ́ Offices or Defense Intelligence

Agency Liaison Offices outside the United States; or

(B) to the Defense Intelligence Agency and engaged in

intelligence-related duties outside the United States; and

(2) are designated by the Secretary of Defense for the purposes of subsection (a).

(Added P.L. 99–145, § 1302(b)(1), Nov. 8, 1985, 99 Stat. 738; amended, P.L. 102–25, § 702(b)(1),

April 6, 1991, 105 Stat. 117; P.L. 104–93, § 502(b), January 6, 1996, 109 Stat. 973; P.L. 106–

65, § 1067(2), Oct. 5, 1999, 113 Stat. 774.)

§ 432. Travel and transportation: members escorting certain

dependents

(a) Under regulations prescribed by the Secretary concerned, a

member of a uniformed service may be provided round trip transportation and travel allowances for travel performed or to be performed under competent orders as an escort for the member’s dependent when travel by the dependent is authorized by competent

authority and the dependent is incapable of traveling alone because

of age, mental or physical incapacity, or other extraordinary circumstances.

(b) Whenever possible, the Air Mobility Command or Military

Sealift Command shall be used, on a space-required basis, for the

travel authorized by this section.

(Added P.L. 99–661, § 615(a)(1), Nov. 14, 1986, 100 Stat. 3879, § 431; renumbered § 432, P.L.

100–26, § 8(b)(1), Apr. 21, 1987, 101 Stat. 285; amended P.L. 107–107, § 931(c), Dec. 28, 2001,

115 Stat. 1200.)

§ 433. Allowance for muster duty

(a) Under uniform regulations prescribed by the Secretaries

concerned, a member of the Ready Reserve who is not a member

of the National Guard or of the Selected Reserve is entitled to an

allowance for muster duty performed pursuant to section 12319 of

title 10 if the member is engaged in that duty for at least two

hours.

(b) The amount of the allowance under this section shall be

125 percent of the amount of the average per diem rate for the

United States (other than Alaska and Hawaii) under section
199 § 435 TITLE 37—CH. 7—ALLOWANCES

404(d)(2)(A) of this title as in effect on September 30 of the year

proceding the year in which the muster duty is performed.

(c) The allowance authorized by this section may not be disbursed in kind. The allowance may be paid to the member before,

on, or after the date on which the muster duty is performed, but

not later than 30 days after that date. The allowance shall constitute the single, flat-rate monetary allowance authorized for the

performance of muster duty and shall constitute payment in full to

the member, regardless of grade or rank in which serving, as commutation for travel to the immediate vicinity of the designated

muster duty location, transportation, subsistence, and the special

or extraordinary costs of enforced absence from home and civilian

pursuits, including such absence on weekends and holidays.

(d) A member who performs muster duty is not entitled to compensation for inactive-duty training under section 206(a) of this

title for the same period.

(Added P.L. 101–189, § 502(b), Nov. 29, 1989, 103 Stat. 1436; amended P.L. 101–510,

§ 1484(h)(5), Nov. 5, 1990, 104 Stat. 1718; P.L. 104–106, § 1501(d)(4)(B), Feb. 10, 1996, 110 Stat.

501; P.L. 105–85, § 627, Nov. 18, 1997, 111 Stat. 1795.)

§ 434. Subsistence reimbursement relating to escorts of foreign arms control inspection teams

(a) REIMBURSEMENT OF REASONABLE SUBSISTENCE COSTS.— Under uniform regulations prescribed by the Secretaries concerned,

a member of the armed forces may be reimbursed for the reasonable cost of subsistence incurred by the member while performing

duties as an escort of an arms control inspection team of a foreign

country, or any member of such a team, while the team or the team

member, as the case may be, is engaged in activities related to the

implementation of an arms control treaty or agreement.

(b) PERIOD OF AUTHORITY.—The authority under subsection (a)

applies to the period during which the inspection team, pursuant

to authority specifically provided in the applicable arms control

treaty or agreement, is in the country where inspections and related activities are being conducted by the team pursuant to that

treaty or agreement.

(c) EFFECT OF LOCATION OF MEMBER’S PERMANENT DUTY STATION.—The authority under subsection (a) applies to a member of

the armed forces whether the duties referred to in that subsection

are performed at, near, or away from the member’s permanent

duty station.

(Added P.L. 102–484, § 623(a), Oct. 23, 1992, 106 Stat. 2423.)

§ 435. Funeral honors duty: allowance

(a) ALLOWANCE AUTHORIZED.—(1) The Secretary concerned

may authorize payment of an allowance to a member of the Ready

Reserve for any day on which the member performs at least two

hours of funeral honors duty pursuant to section 12503 of title 10

or section 115 of title 32.

(2) The Secretary concerned may also authorize payment of

that allowance to a member of the armed forces in a retired status

for any day on which the member serves in a funeral honors detail

under section 1491 of title 10, if the time required for service in

such detail (including time for preparation) is not less than two
§ 436 TITLE 37—CH. 7—ALLOWANCES 200

hours. The amount of an allowance paid to a member under this

paragraph shall be in addition to any other compensation to which

the member may be entitled under this title or title 10 or 38.

(b) AMOUNT.—The daily rate of an allowance under this section

is $50.

(Added P.L. 106–65, § 578(j), Oct. 5, 1999, 113 Stat. 630; amended P.L. 106–398, § 1 (§ 575(b)),

Oct. 30, 2000, 114 Stat. 1654A–138; P.L. 107–107, § 561(b), Dec. 28, 2001, 115 Stat. 1119.)

§ 436. High-deployment allowance: lengthy or numerous deployments; frequent mobilizations

(a) MONTHLY ALLOWANCE.—The Secretary of the military department concerned shall pay a high-deployment allowance to a

member of the armed forces under the Secretary’s jurisdiction for

each month during which the member—

(1) is deployed; and

(2) at any time during that month—

(A) has been deployed for 191 or more consecutive

days (or a lower number of consecutive days prescribed by

the Secretary of Defense, acting through the Under Secretary of Defense for Personnel and Readiness);

(B) has been deployed, out of the preceding 730 days,

for a total of 401 or more days (or a lower number of days

prescribed by the Secretary of Defense, acting through the

Under Secretary of Defense for Personnel and Readiness);

or

(C) in the case of a member of a reserve component,

is on active duty—

(i) under a call or order to active duty for a period

of more than 30 days that is the second (or later) such

call or order to active duty (whether voluntary or involuntary) for that member in support of the same

contingency operation; or

(ii) for a period of more than 30 days under a provision of law referred to in section 101(a)(13)(B) of title

10, if such period begins within one year after the date

on which the member was released from previous

service on active duty for a period of more than 30

days under a call or order issued under such a provision of law.

(b) DEFINITION OF DEPLOYED.—In this section, the term ‘‘deployed’’, with respect to a member, means that the member is deployed or in a deployment within the meaning of section 991(b) of

title 10 (including any definition of ‘‘deployment’’ prescribed under

paragraph (4) of that section).

(c) RATE.—The monthly rate of the allowance payable to a

member under this section shall be determined by the Secretary

concerned, not to exceed $1,000 per month.

(d) PAYMENT OF CLAIMS.—A claim of a member for payment of

the high-deployment allowance that is not fully substantiated by

the recordkeeping system applicable to the member under section

991(c) of title 10 shall be paid if the member furnishes the Secretary concerned with other evidence determined by the Secretary

as being sufficient to substantiate the claim.
201 § 436 TITLE 37—CH. 7—ALLOWANCES

(e) RELATIONSHIP TO OTHER ALLOWANCES.—A high-deployment

allowance payable to a member under this section is in addition to

any other pay or allowance payable to the member under any other

provision of law.

(f) NATIONAL SECURITY WAIVER.—No allowance may be paid

under this section to a member for any month during which the applicability of section 991 of title 10 to the member is suspended

under subsection (d) of that section.

(g) AUTHORITY TO EXCLUDE CERTAIN DUTY ASSIGNMENTS.—The

Secretary concerned may exclude members serving in specified

duty assignments from eligibility for the high-deployment allowance while serving in those assignments. Any such specification of

duty assignments may only be made with the approval of the Secretary of Defense, acting through the Under Secretary of Defense

for Personnel and Readiness. Specification of a particular duty assignment for purposes of this subsection may not be implemented

so as to apply to the member serving in that position at the time

of such specification.

(h) PAYMENT FROM OPERATION AND MAINTENANCE FUNDS.—

The monthly allowance payable to a member under this section

shall be paid from appropriations available for operation and maintenance for the armed force in which the member serves.

(Added P.L. 106–65, § 586(b), Oct. 5, 1999, 113 Stat. 638; amended P.L. 106–398, § 1 (§§ 574(c),

1087(c)(1)(A)(i)), Oct. 30, 2000, 114 Stat. 1654A–137, 292; P.L. 107–107, § 592(a), Dec. 28, 2001,

115 Stat. 1125; P.L. 108–136, § 541(b)(1)–(5)(A), Nov. 24, 2003, 117 Stat. 1476, 1477.)
202

CHAPTER 9—LEAVE

Sec.

501. Payments for unused accrued leave.

502. Absences due to sickness, wounds, and certain other causes.

503. Absence without leave or over leave.

504. Cadets and midshipmen: chapter does not apply to.

§ 501. Payments for unused accrued leave

(a) In this section, the term ‘‘discharge’’ means—

(1) in the case of an enlisted member, separation or release

from active duty under honorable conditions, termination of an

enlistment in conjunction with the commencement of a successive enlistment (without regard to the date of the expiration of

the term of the enlistment being terminated), or appointment

as an officer;

(2) in the case of an officer, separation or release from active duty under honorable conditions; and

(3) in the case of either an officer or an enlisted member,

death while on active duty unless the decedent was put to

death as lawful punishment for a crime or a military offense.

(b)(1) A member of the Army, Navy, Air Force, Marine Corps,

Coast Guard, or National Oceanic and Atmospheric Administration,

who has accrued leave to his credit at the time of his discharge,

is entitled to be paid in cash or by a check on the Treasurer of the

United States for such leave on the basic pay to which he was entitled on the date of discharge.

(2) Payment may not be made under this subsection to a member who is discharged for the purpose of accepting an appointment

or a warrant in any uniformed service.

(3) Payment may not be made to a member for any leave he

elects to have carried over to a new enlistment in any uniformed

service on the day after the date of his discharge; but payment may

be made to a member for any leave he elects not to carry over to

a new enlistment. However, the number of days of leave for which

payment is made may not exceed sixty, less the number of days for

which payment was previously made under this section after February 9, 1976.

(4) A member to whom a payment may not be made under this

subsection, or a member who reverts from officer to enlisted status,

carries the accrued leave standing to his credit from the one status

to the other within any uniformed service.

(5) The limitation in the second sentence of paragraph (3) and

in subsection (f) shall not apply with respect to leave accrued—

(A) by a member of a reserve component while serving on

active duty in support of a contingency operation;

(B) by a member of the armed forces in the Retired Reserve while serving on active duty in support of a contingency

operation;
203 § 501 TITLE 37—CH. 9—LEAVE

1Section 2771 of title 10, referred to in section 501(d)(1), specifies the order of eligibility for

payments to beneficiaries of a deceased member as follows: (1) Beneficiary designated by member in writing; (2) surviving spouse; (3) children and their dependents, by representation; (4)

father and mother, in equal parts; (5) legal representative; and (6) person entitled under the

law of the domicile of the deceased member.

(C) by a retired member of the Regular Army, Regular

Navy, Regular Air Force, or Regular Marine Corps or a member of the Fleet Reserve or Fleet Marine Corps Reserve while

the member is serving on active duty in support of a contingency operation; or

(D) by a member of a reserve component while serving on

active duty, full-time National Guard duty, or active duty for

training for a period of more than 30 days but not in excess

of 365 days.

(c) Unused leave for which payment is made under subsection

(b) is not considered as service for any purpose.

(d)(1) Payments for unused accrued leave under subsections (b)

and (g), in the case of a member who dies while on active duty or

in the case of a member or former member who dies after retirement or discharge and before he receives that payment, shall be

made in accordance with section 2771 of title 10.1 In the case of

a member who dies while on active duty, payment for unused accrued leave under subsections (b) and (g) shall be based upon the

unused accrued leave the member carried forward into the leave

year during which he died plus the unused leave that accrued to

him during that leave year.

(2) The limitations in the second sentence of subsection (b)(3),

subsection (f), and the second sentence of subsection (g) shall not

apply with respect to a payment made under this subsection.

(e)(1) A member of the Army, Navy, Air Force, Marine Corps,

Coast Guard, or National Oceanic and Atmospheric Administration

who is discharged under other than honorable conditions forfeits all

accrued leave to his credit at the time of his discharge.

(2) The Secretary concerned may require that a member of a

uniformed service who is discharged before completing six months

of active duty because of a failure to serve satisfactorily (as determined by the Secretary concerned) forfeit all accrued leave to his

credit at the time of his discharge.

(f) The number of days upon which payment under subsection

(b) or (g) is based may not exceed sixty, less the number of days

for which payment has been previously made under such subsections after February 9, 1987. For the purposes of this subsection, the number of days upon which payment may be based

shall be determined without regard to any break in service or

change in status in the uniformed services.

(g) An officer of the Regular Corps of the Public Health Service, or an officer of the Reserve Corps of the Public Health Service

on active duty, who is credited with accumulated and accrued annual leave on the date of his separation, retirement, or release

from active duty, shall, if his application for that leave is approved

by the Secretary of Health and Human Services, be paid for that

leave in a lump-sum on the basis of his basic pay, subsistence allowance, and allowance for quarters whether or not he is receiving

that allowance on that date. However, the number of days upon
§ 502 TITLE 37—CH. 9—LEAVE 204

which the lump-sum payment is based is subject to subsection (f).

A lump-sum payment may not be made under this subsection to an

officer—

(1) whose appointment expires or is terminated and who,

without a break in active service, accepts a new appointment;

(2) who is retired for age in time of war and is continued

on, or recalled to, active duty without a break in active service;

or

(3) who is transferred to another department or agency of

the United States under circumstances in which, by any other

law, his leave may be transferred.

In this subsection, the term ‘‘accumulated annual leave’’ means unused accrued annual leave carried forward from one leave year into

the next leave year, and the term ‘‘accrued annual leave’’ means

the annual leave accruing to an officer during one leave year.

(h) Payment shall be made for all leave accumulated under section 701(g) of title 10 as soon as possible after the name of the person concerned is removed from a missing status, as defined in section 551(2) of this title.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 480; amended P.L. 89–151, §§ 1, 2, Aug. 28, 1965, 79 Stat.

586; P.L. 89–718, §§ 49(a)(1), 65, Nov. 2, 1966, 80 Stat. 1121, 1123; P.L. 92–596, § 2, Oct. 27,

1972, 86 Stat. 1318; P.L. 94–361, § 304(a)–(g), July 14, 1976, 90 Stat. 925, 926; P.L. 96–513,

§ 516(14), Dec. 12, 1980, 94 Stat. 2938; P.L. 98–525, § 606(a), Oct. 19, 1984, 98 Stat. 2537; P.L.

99–145, § 682, Nov. 8, 1985, 99 Stat. 665; P.L. 100–26, § 8(e)(6), (9), Apr. 21, 1987, 101 Stat.

286, 287, P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 102–190, § 637, Dec. 5, 1991,

105 Stat. 1383; P.L. 104–106, § 641, Feb. 10, 1996, 110 Stat. 368; P.L. 106–65, § 671, Oct. 5,

1999, 113 Stat. 674; P.L. 107–107, § 651(a), Dec. 28, 2001, 115 Stat. 1152.)

§ 502. Absences due to sickness, wounds, and certain other

causes

(a) A member of the Army, Navy, Air Force, Marine Corps,

Coast Guard, or National Oceanic and Atmospheric Administration,

who is absent because of sickness or wounds, or who is directed by

the Secretary concerned, or his designated representative, to be absent from duty to await orders pending disability retirement proceedings for a period that is longer than the leave authorized by

section 701 of title 10, is entitled to the pay and allowances to

which he would be entitled if he were not so absent. A member who

is absent with leave for any other reason for not longer than the

leave authorized by that section is entitled to the same pay and allowances to which he would be entitled if he were not on leave, and

to any additional allowances otherwise provided by law for members on leave.

(b) Except as provided in subsection (a) and section 701(h) of

title 10, a member who is authorized by the Secretary concerned,

or his designated representative, to be absent for a period that is

longer than the leave authorized by section 701 of title 10 is not

entitled to pay or allowances during the part of his absence that

is more than the number of days’ leave authorized by that section.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 482; amended P.L. 89–718, § 49(a)(1), Nov. 2, 1966, 80 Stat.

1121; P.L. 96–513, § 516(15), Dec. 12, 1980, 94 Stat. 2939; P.L. 99–661, § 506(b), Nov. 14, 1986,

100 Stat. 3865, P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117.)

§ 503. Absence without leave or over leave

(a) A member of the Army, Navy, Air Force, Marine Corps,

Coast Guard, or National Oceanic and Atmospheric Administration,
205 § 504 TITLE 37—CH. 9—LEAVE

who is absent without leave or over leave, forfeits all pay and allowances for the period of that absence, unless it is excused as unavoidable.

(b) A commissioned officer of the Regular Corps of the Public

Health Service, or an officer of the Reserve Corps of the Public

Health Service on active duty, who is absent without leave, forfeits

all pay and allowances for the period of that absence, unless it is

excused as unavoidable.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 482; amended P.L. 89–718, § 49(a)(1), Nov. 2, 1966, 80 Stat.

1121; P.L. 96–513, § 516(15), Dec. 12, 1980, 94 Stat. 2939.)

§ 504. Cadets and midshipmen: chapter does not apply to

This chapter does not apply to cadets at the United States

Military Academy, the United States Air Force Academy, the Coast

Guard Academy, midshipmen at the United States Naval Academy,

or cadets or midshipmen serving elsewhere in the armed forces.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 483.)
206

CHAPTER 10—PAYMENTS TO MISSING PERSONS

Sec.

551. Definitions.

552. Pay and allowances: continuance while in a missing status; limitations.

553. Allotments: continuance, suspension, initiation, resumption, or increase

while in a missing status; limitations.

554. Travel and transportation: dependents; household and personal effects;

trailers; additional movements; motor vehicles; sale of bulky items;

claims for proceeds; appropriation chargeable.

555. Secretarial review.

556. Secretarial determinations.

557. Settlement of accounts.

558. Income tax deferment.

559. Benefits for members held as captives.

§ 551. Definitions

In this chapter:

(1) The term ‘‘dependent’’, with respect to a member of a

uniformed service, means—

(A) his spouse;

(B) his unmarried child (including an unmarried dependent stepchild or adopted child) under 21 years of age;

(C) his dependent mother or father;

(D) a dependent designated in official records; and

(E) a person determined to be dependent by the Secretary concerned, or his designee.

(2) The term ‘‘missing status’’ means the status of a member of a uniformed service who is officially carried or determined to be absent in a status of—

(A) missing;

(B) missing in action;

(C) interned in a foreign country;

(D) captured, beleaguered, or besieged by a hostile

force; or

(E) detained in a foreign country against his will.

(3) The term ‘‘pay and allowances’’ means—

(A) basic pay;

(B) special pay;

(C) incentive pay;

(D) basic allowance for housing;

(E) basic allowance for subsistence; and

(F) station per diem allowances for not more than 90

days.

(Added P.L. 89–554, § 5(b), Sept. 6, 1966, 80 Stat. 625; amended P.L. 99–145, § 1301(g), Nov.

8, 1985, 99 Stat. 737; P.L. 100–26, § 8(e)(10), Apr. 21, 1987, 101 Stat. 287; P.L. 105–85,

§ 603(d)(1)(D), Nov. 18, 1997, 111 Stat. 1782.)
207 § 552 TITLE 37—CH. 10—MISSING PERSONS

1Section 1523 of title 10, referred to in the third sentence of section 552(a), precludes any

entitlement to bonus, gratuity, pay, or allowance resulting from a posthumous commission or

warrant.

§ 552. Pay and allowances: continuance while in a missing

status; limitations

(a) A member of a uniformed service who is on active duty or

performing inactive-duty training, and who is in a missing status,

is—

(1) for the period he is in the status, entitled to receive or

have credited to his account the same pay and allowances, as

defined in this chapter, to which he was entitled at the beginning of that period or may thereafter become entitled; and

(2) for the period, not to exceed one year, required for his

hospitalization and rehabilitation after termination of that status, under regulations prescribed by the Secretaries concerned,

with respect to incentive pay, considered to have satisfied the

requirements of section 301 of this title so as to entitle him to

a continuance of that pay.

However, a member who is performing full-time training duty or

other full-time duty without pay, or inactive-duty training with or

without pay, is entitled to the pay and allowances to which he

would have been entitled if he had been on active duty with pay.

Notwithstanding section 1523 of title 10 1 or any other provision of

law, the promotion of a member while he is in a missing status is

fully effective for all purposes.

(b) The expiration of a member’s term of service while he is in

a missing status does not end his entitlement to pay and allowances under subsection (a). Notwithstanding the death of a member

while in a missing status, entitlement to pay and allowances under

subsection (a) ends on the date—

(1) the Secretary concerned receives evidence that the

member is dead; or

(2) that his death is prescribed or determined under section 555 of this title or under chapter 76 of title 10.

(c) A member is not entitled to pay and allowances under subsection (a) for a period during which he is officially determined to

be absent from his post of duty without authority, and he is indebted to the United States for payments from amounts credited to

his account for that period.

(d) A member who is performing full-time training duty or inactive-duty training is entitled to the benefits of this section only

when he is officially determined to be in a missing status that results from the performance of duties prescribed by competent authority.

(e) A member in a missing status who is continued in that status under section 555 of this title or under chapter 76 of title 10

is entitled to be credited with pay and allowances under subsection

(a).

(Added P.L. 89–554, § 5(b), Sept. 6, 1966, 80 Stat. 625; amended P.L. 92–169, § 1, Nov. 24, 1971,

85 Stat. 489; P.L. 92–482, Oct. 12, 1972, 86 Stat. 796; P.L. 93–26, § 1, Apr. 27, 1973, 87 Stat.

26; P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 104–106, § 569(c)(2), Feb. 10, 1996,

110 Stat. 351.)
§ 553 TITLE 37—CH. 10—MISSING PERSONS 208

§ 553. Allotments: continuance, suspension, initiation, resumption, or increase while in a missing status;

limitations

(a) Notwithstanding the end of the period for which it was

made, an allotment, including one for the purchase of United

States savings bonds, made by a member of a uniformed service before he was in a missing status may be continued for the period

he is entitled to pay and allowances under section 552 of this title.

(b) When there is no allotment in effect, or when it is insufficient for a purpose authorized by the Secretary concerned, he, or

his designee, may authorize new allotments or increases in allotments that are warranted by the circumstances and payable for the

period the member is entitled to pay and allowances under section

552 of this title.

(c) The total of all allotments from the pay and allowances of

a member in a missing status may not be more than the amount

of pay and allowances he is permitted to allot under regulations

prescribed by the Secretary concerned.

(d) A premium paid by the United States on insurance issued

on the life of a member which is unearned because it covers a period after his death reverts to the appropriation of the department

concerned.

(e) Subject to subsections (f) and (g), the Secretary concerned,

or his designee, may, when he considers it in the interest of the

member, his dependents, or the United States, direct the initiation,

continuance, discontinuance, increase, decrease, suspension, or resumption of payments of allotments from the pay and allowances

of a member entitled to pay and allowances under section 552 of

this title.

(f) When the Secretary concerned officially reports that a member in a missing status is alive, the payments of allotments authorized by subsections (a)–(d) may, subject to section 552 of this title,

be made until the date on which, in a case covered by section 555

of this title, the Secretary concerned receives evidence, or, in a case

covered by chapter 76 of title 10, the Secretary concerned determines pursuant to that chapter, that the member is dead or has

returned to the controllable jurisdiction of the department concerned.

(g) A member in a missing status who is continued in that status under section 555 of this title or under chapter 76 of title 10

is entitled to have the payments of allotments authorized by subsections (a)–(d) continued, increased, or initiated.

(h) When the Secretary concerned considers it essential for the

well-being and protection of the dependents of a member on active

duty (other than a member entitled to pay and allowances under

section 552 of this title), he may, with or without the consent, and

subject to termination at the request, of the member—

(1) direct the payment of a new allotment from the pay of

the member;

(2) increase or decrease the amount of an allotment made

by the member; and
209 § 554 TITLE 37—CH. 10—MISSING PERSONS

(3) continue payment of an allotment of the member which

has expired.

(Added P.L. 89–554, § 5(b), Sept. 6, 1966, 80 Stat. 626; amended P.L. 102–25, § 702(b)(1), April

6, 1991, 105 Stat. 117; P.L. 104–106, § 569(c)(3), Feb. 10, 1996, 110 Stat. 351.)

§ 554. Travel and transportation: dependents; household and

personal effects; trailers; additional movements;

motor vehicles; sale of bulky items; claims for proceeds; appropriation chargeable

(a) In this section, ‘‘household and personal effects’’ and

‘‘household effects’’ may include, in addition to other authorized

weight allowances, two privately owned motor vehicles which may

be shipped at United States expense. Under regulations prescribed

by the Secretaries concerned, and in place of the transportation of

household and personal effects, a dependent, who would otherwise

be entitled to transportation of household and personal effects

under this section, may transport a house trailer or mobile dwelling within and between the areas specified in section 409 of this

title for use as a residence by one of the following means—

(1) transport it and be reimbursed by the United States;

(2) deliver it to an agent of the United States for transportation by the United States or by commercial means; or

(3) have it transported by commercial means and be reimbursed by the United States.

If a trailer or dwelling is transported under clause (2) or (3), that

transportation may include two privately owned motor vehicles

which may be shipped at United States expense. Transportation,

and incidental costs, authorized by this section shall be at United

States expense without any cost limitation, and any payment authorized may be in advance of the transportation concerned.

(b) Transportation (including packing, crating, drayage, temporary storage, and unpacking of household and personal effects)

may be provided for the dependents and household and personal effects of a member of a uniformed service on active duty (without

regard to pay grade), who is officially reported as dead, injured, ill,

or absent for a period of more than 29 days in a missing status—

(1) to the member’s official residence of record;

(2) to the residence of his dependent, next of kin, or other

person entitled to custody of the effects, under regulations prescribed by the Secretary concerned; or

(3) on request of the member (if injured or ill), or his dependent, next of kin, or other person described in clause (2),

to another location determined in advance or later approved by

the Secretary concerned, or his designee.

When he considers it necessary, the Secretary concerned may, with

respect to the household and personal effects of a member who is

officially reported as absent for a period of more than 29 days in

a missing status, authorize the nontemporary storage of those effects for a period of one year, or longer when justified. In addition,

he may authorize additional movements of, and prescribe transportation for, the dependents and household and personal effects, or

the dependents and house trailer or mobile dwelling, of a member

who is officially reported as absent for a period of more than one

year in a missing status.
§ 554 TITLE 37—CH. 10—MISSING PERSONS 210

(c) When a member described in subsection (b) is in an injured

or ill status, transportation of dependents and household and personal effects authorized by this section may be provided only when

prolonged hospitalization or treatment is anticipated.

(d) Transportation requested by a dependent may be authorized under this section only if there is a reasonable relationship between the circumstances of the dependent and the requested destination.

(e) In place of the transportation for dependents authorized by

this section, and after the travel is completed, the Secretary concerned may authorize—

(1) reimbursement for the commercial cost of the transportation; or

(2) a monetary allowance at the prescribed rate for all, or

that part, of the travel for which transportation in kind is not

furnished.

(f) The Secretary concerned may store the household and personal effects of a member described in subsection (b) until proper

disposition can be made. The cost of the storage and transportation

(including packing, crating, drayage, temporary storage, and unpacking) of household and personal effects shall be charged against

appropriations currently available.

(g) The Secretary concerned may, when he determines that

there is an emergency and a sale would be in the best interest of

the United States, provide for the public or private sale of motor

vehicles and other bulky items of household and personal effects of

a member described in subsection (b). Before a sale, and if practicable, a reasonable effort shall be made to determine the desires

of the interested persons. The net proceeds received from the sale

shall, under regulations prescribed by the Secretary concerned, be

sent to the owner or other persons. If there are no such persons

or if they or their addresses are not known within one year from

the date of sale, the net proceeds may be covered into the Treasury

as miscellaneous receipts.

(h) Claims for net proceeds that are covered into the Treasury

under subsection (g) may be filed with the Secretary of Defense by

the rightful owners, their heirs or next of kin, or their legal representatives at any time before the end of a 5-year period from the

date the proceeds are covered into the Treasury. When a claim is

filed, the Secretary of Defense shall allow or disallow it. A claim

that is allowed shall be paid from the appropriation for refunding

money erroneously received and covered. If a claim is not filed before the end of the 5-year period from the date the proceeds are

covered into the Treasury, it is barred from being acted on by the

courts or the Secretary of Defense.

(i) If a motor vehicle of a member (or a dependent of the member) that is transported at the expense of the United States under

this section does not arrive at the authorized destination of the vehicle by the designated delivery date, the Secretary concerned shall

reimburse the dependent for expenses incurred after that date to

rent a motor vehicle for the dependent’s use. The amount reimbursed may not exceed $30 per day, and the rental period for which

reimbursement may be provided expires after 7 days or on the date

on which the delayed vehicle arrives at the authorized destination
211 § 555 TITLE 37—CH. 10—MISSING PERSONS

1The provisions referred to in section 554(j) relate to disposition of unclaimed property (10

U.S.C. 2575); property loss incident to noncombat activities (10 U.S.C. 2733); disposition of effects of Army and Air Force decedents (10 U.S.C. 4712, 9712); disposition of effects of naval personnel (10 U.S.C. 6522); disposition of effects of Coast Guard decedents (14 U.S.C. 507); and

tort claims procedures (28 U.S.C., chapter 171).

(whichever occurs first). In a case in which two motor vehicles of

a member (or the dependent or dependents of a member) are transported at the expense of the United States, no reimbursement is

payable under this subsection unless both motor vehicles do not arrive at the authorized destination of the vehicles by the designated

delivery date.

(j) This section does not amend or repeal—

(1) sections 2575, 2733, 4712, 6522, or 9712 of title 10;

(2) section 507 of title 14; or

(3) chapter 171 of title 28.1

(Added P.L. 89–554, § 5(b), Sept. 6, 1966, 80 Stat. 627; amended P.L. 90–83, § 5(2), Sept. 11,

1967, 81 Stat. 221; P.L. 90–236, Jan. 2, 1968, 81 Stat. 764; P.L. 90–236, Jan. 2, 1968, 81 Stat.

764; P.L. 90–623, § 3(7), Oct. 22, 1968, 82 Stat. 1315; P.L. 92–477, § 1, Oct. 9, 1972, 86 Stat.

793; P.L. 93–548, § 3, Dec. 26, 1974, 88 Stat. 1743, P.L. 102–25, § 702(b)(1), April 6, 1991, 105

Stat. 117; P.L. 102–190, § 1063(a), Dec. 5, 1991, 105 Stat. 1476; P.L. 104–316, § 202(s) Oct. 19,

1996, 110 Stat. 3845; P.L. 105–261, § 653(d), Oct. 16, 1998, 112 Stat. 2052; P.L. 107–314, § 622,

Dec. 2, 2002, 116 Stat. 2571.)

§ 555. Secretarial review

(a) Except as provided in subsection (d), when a member of a

uniformed service entitled to pay and allowances under section 552

of this title has been in a missing status, and the official report of

his death or of the circumstances of his absence has not been received by the Secretary concerned, he shall, before the end of a 12-

month period in that status, have the case fully reviewed. After

that review and the end of the 12-month period in a missing status, or after a later review which shall be made when warranted

by information received or other circumstances, the Secretary concerned, or his designee, may—

(1) if the member can reasonably be presumed to be living,

direct a continuance of his missing status; or

(2) make a finding of death.

(b) When a finding of death is made under subsection (a), it

shall include the date death is presumed to have occurred for the

purpose of—

(1) ending the crediting of pay and allowances;

(2) settlement of accounts; and

(3) payment of death gratuities.

That date is—

(A) the day after the day on which the 12-month period in

a missing status ends; or

(B) if the missing status has been continued under subsection (a), the day determined by the Secretary concerned, or

his designee.

(c) For the sole purpose of determining status under this section, a dependent of a member on active duty is treated as if he

were a member. Any determination made by the Secretary concerned, or his designee, under this section is conclusive on all other

departments and agencies of the United States. This subsection

does not entitle a dependent to pay, allowances, or other compensation to which he is not otherwise entitled.
§ 556 TITLE 37—CH. 10—MISSING PERSONS 212

(d) This section does not apply in a case to which section 1502

of title 10 applies.

(Added P.L. 89–554, § 5(b), Sept. 6, 1966, 80 Stat. 628; amended P.L. 102–25, § 702(b)(1), April

6, 1991, 105 Stat. 117; P.L. 104–106, § 569(c)(1), Feb. 10, 1996, 110 Stat. 351.)

§ 556. Secretarial determinations

(a) The Secretary concerned, or his designee, may make any

determination necessary to administer this chapter and, when so

made, it is conclusive as to—

(1) death or finding of death;

(2) the fact of dependency under this chapter;

(3) the fact of dependency for the purpose of paying six

months’ death gratuities authorized by law;

(4) the fact of dependency under any other law authorizing

the payment of pay, allowances, or other emoluments to enlisted members of the armed forces, when the payments are

contingent on dependency;

(5) any other status covered by this chapter;

(6) an essential date, including one on which evidence or

information is received by the Secretary concerned; and

(7) whether information received concerning a member of

a uniformed service is to be construed and acted on as an official report of death.

Paragraphs (1), (5), (6), and (7) only apply with respect to a case

to which section 555 of this title applies.

(b) When the Secretary concerned, in a case to which section

555 of this title applies, receives information that he considers establishes conclusively the death of a member of a uniformed service, he shall, notwithstanding any earlier action relating to death

or other status of the member, act on it as an official report of

death. After the end of the 12-month period in a missing status

prescribed by section 555 of this title, the Secretary concerned, or

his designee, shall, when he considers that the information received, or a lapse of time without information, establishes a reasonable presumption that a member in a missing status is dead, make

a finding of death.

(c) The Secretary concerned, or his designee, may determine

the entitlement of a member to pay and allowances under this

chapter, including credits and charges in his account, and that determination is conclusive. An account may not be charged or debited with an amount that a member captured, beleaguered, or besieged by a hostile force may receive or be entitled to receive from,

or have placed to his credit by, the hostile force as pay, allowances,

or other compensation.

(d) The Secretary concerned, or his designee, may, when warranted by the circumstances, reconsider a determination made

under this chapter, and change or modify it.

(e) When the account of a member has been charged or debited

with an allotment paid under this chapter, the amount so charged

or debited shall be recredited to the account of the member if the

Secretary concerned, or his designee, determines that the payment

was induced by fraud or misrepresentation to which the member

was not a party.
213 § 558 TITLE 37—CH. 10—MISSING PERSONS

(f) Except an allotment for an unearned insurance premium,

an allotment paid from pay and allowances of a member for the period he is entitled to pay and allowances under section 552 of this

title may not be collected from the allottee as an overpayment

when it was caused by delay in receiving evidence of death. An allotment payment for a period after the end of entitlement to pay

and allowances under this chapter, or otherwise, which was caused

by delay in receiving evidence of death, may not be collected from

the allottee or charged against the pay of the deceased member.

(g) The Secretary concerned, or his designee, may waive the recovery of an erroneous payment or overpayment of an allotment to

a dependent if he considers recovery is against equity and good

conscience.

(h) For the sole purpose of determining pay under this section,

a dependent of a member of a uniformed service on active duty is

treated as if he were a member. Any determination made by the

Secretary concerned, or his designee, under this section in a case

to which section 555 of this title applies is conclusive on all other

departments and agencies of the United States. This subsection

does not entitle a dependent to pay, allowances, or other compensation to which he is not otherwise entitled.

(Added P.L. 89–554, § 5(b), Sept. 6, 1966, 80 Stat. 629; amended P.L. 104–106, § 569(c)(4), Feb.

10, 1996, 110 Stat. 351.)

§ 557. Settlement of accounts

(a) The Secretary concerned, or his designee, may settle the account of—

(1) a member of a uniformed service for whose account

payments have been made under sections 552, 553, and 555 of

this title; and

(2) a survivor of a casualty to a ship, station, or military

installation which results in the loss or destruction of disbursing records.

That settlement is conclusive on the accounting officers of the

United States in settling the accounts of disbursing officers.

(b) Payment or settlement of an account made pursuant to a

report, determination, or finding of death may not be recovered or

reopened because of a later report or determination which fixes a

date of death. However, an account shall be reopened and settled

on the basis of a date of death so fixed which is later than that

used as a basis for earlier settlements.

(c) In the settlement of his accounts, a disbursing officer is entitled, if there is no fraud or criminality by him, to credit for an

erroneous payment or overpayment he made in carrying out this

chapter, except section 558 of this title. Unless there is fraud or

criminality by him, recovery may not be made from a civilian officer or employee or a member of a uniformed service who authorizes

a payment under this chapter except section 558 of this title.

(Added P.L. 89–554, § 5(b), Sept. 6, 1966, 80 Stat. 630; amended P.L. 99–145, § 1303(b)(11), Nov.

8, 1985, 99 Stat. 741.)

§ 558. Income tax deferment

Notwithstanding any other provision of law, a Federal income

tax return of, or the payment of a Federal income tax by, a member
§ 559 TITLE 37—CH. 10—MISSING PERSONS 214

of a uniformed service who, at the time the return or payment

would otherwise become due, is in a missing status, does not become due until the earlier of the following dates—

(1) the fifteenth day of the third month in which he ceased

(except by reason of death or incompetency) being in a missing

status, unless before the end of that fifteenth day he is again

in a missing status; or

(2) the fifteenth day of the third month after the month in

which an executor, administrator, or conservator of the estate

of the taxpayer is appointed.

That due date is prescribed subject to the power of the Secretary

of the Treasury or his delegate to extend the time for filing the return or paying the tax, as in other cases, and to assess and collect

the tax as provided by sections 6851, 6861, and 6871 of the Internal Revenue Code of 1986 in cases in which the assessment or collection is jeopardized and in cases of bankruptcy or receivership.

(Added P.L. 89–554, § 5(b), Sept. 6, 1966, 80 Stat. 631; amended P.L. 96–513, § 516(16), Dec.

12, 1980, 94 Stat. 2939; P.L. 100–26, § 8(c), Apr. 21, 1987, 101 Stat. 285.)

§ 559. Benefits for members held as captives

(a) In this section:

(1) The term ‘‘captive status’’ means a missing status of a

member of the uniformed services which, as determined by the

President, arises because of a hostile action and is a result of

membership in the uniformed services, but does not include a

period of captivity of a member as a prisoner of war if Congress provides to such member, in an Act enacted after August

27, 1986, monetary payment in respect of such period of captivity.

(2) The term ‘‘former captive’’ means a person who, as a

member of the uniformed services, was held in a captive status.

(b)(1) The Secretary of the Treasury shall establish a savings

fund to which the Secretary concerned may allot all or any portion

of the pay and allowances of any member of the uniformed services

who is in a captive status to the extent that such pay and allowances are not subject to an allotment under section 553 of this title

or any other provision of law.

(2) Amounts so allotted shall bear interest at a rate which, for

any calendar quarter, shall be equal to the average rate paid on

United States Treasury bills with three-month maturities issued

during the preceding calendar quarter. Such interest shall be computed quarterly.

(3) Amounts in the savings fund credited to a member shall be

considered as pay and allowances for purposes of section 553(c) of

this title and shall otherwise be subject to withdrawal under procedures which the Secretary of the Treasury shall establish.

(4) Any interest accruing under this subsection on—

(A) any amount for which a member is indebted to the

United States under section 552(c) of this title shall be deemed

to be part of the amount due under such section; and

(B) any amount referred to in section 556(f) of this title

shall be deemed to be part of such amount for purposes of such

section.
215 § 559 TITLE 37—CH. 10—MISSING PERSONS

(5) An allotment under this subsection may be made without

regard to section 553(c) of this title.

(c)(1) Except as provided in paragraph (3), the President shall

make a cash payment to any person who is a former captive. Such

payment shall be made before the end of the one-year period beginning on the date on which the captive status of such person terminates.

(2) Except as provided in section 802 of the Victims of Terrorism Compensation Act (5 U.S.C. 5569 note), the amount of such

payment shall be determined by the President under the provisions

of section 5569(d)(2) of title 5.

(3)(A) The President—

(i) may defer such payment in the case of any former captive who during such one-year period is charged with an offense described in clause (ii), until final disposition of such

charge; and

(ii) may deny such payment in the case of any former captive who is convicted of a captivity-related offense—

(I) referred to in subsection (b) or (c) of section 8312

of title 5; or

(II) under chapter 47 of title 10 (the Uniform Code of

Military Justice) that is punishable by dishonorable discharge, dismissal, or confinement for one year or more.

(B) For the purposes of subparagraph (A), a captivity-related

offense is an offense that is—

(i) committed by a person while the person is in a captive

status; and

(ii) related to the captive status of the person.

(4) A payment under this subsection is in addition to any other

amount provided by law.

(5) Any amount due a person under this subsection shall, after

the death of such person, be deemed to be pay and allowances for

the purposes of this chapter.

(6) Any payment made under paragraph (1) that is later denied

under paragraph (3)(A)(ii) is a claim of the United States Government for purposes of section 3711 of title 31.

(d) A determination by the President under subsection (a)(1) or

(c) is final and is not subject to judicial review.

(Added P.L. 99–399, § 806(a)(1), Aug. 27, 1986, 100 Stat. 884; amended P.L. 100–26, § 8(e)(11),

Apr. 21, 1987, 101 Stat. 287; P.L. 101–510, § 1484, Nov. 5, 1990, 104 Stat. 1717, P.L. 102–25,

§ 702(b)(1), (2) and (3), April 6, 1991, 105 Stat. 117; P.L. 102–484, § 1054(a)(6), Oct. 23, 1992,

106 Stat. 2502.)
216

CHAPTER 11—PAYMENTS TO MENTALLY INCOMPETENT

PERSONS

Sec.

601. Applicability.

602. Payments: designation of person to receive amounts due.

603. Regulations.

604. Determination of Secretary final.

§ 601. Applicability

This chapter applies to—

(1) members of a uniformed service who are on active duty

(other than for training) or who are on a retired list of that

service; and

(2) members of the Fleet Reserve or Fleet Marine Corps

Reserve.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 483.)

§ 602. Payments: designation of person to receive amounts

due

(a) Active duty pay and allowances, amounts due for accrued

or accumulated leave, or retired or retainer pay, that are otherwise

payable to a member to whom this chapter applies and who, in the

opinion of a board of medical officers or physicians, is mentally incapable of managing his affairs, may be paid for that member’s use

or benefit to any person designated by the Secretary concerned, or

by any officer to whom he delegates his authority under this section, without the appointment in judicial proceedings of a committee, guardian, or other legal representative.

(b) The board shall consist of at least three qualified medical

officers or physicians, one of whom is especially qualified in the

treatment of mental disorders, appointed from available medical officers or physicians under this jurisdiction by the head of whichever of the following is provided medical treatment for the member,

or by a person designated by that head—

(1) Department of the Army;

(2) Department of the Navy;

(3) Department of the Air Force;

(4) Department of Health and Human Services; or

(5) Department of Veterans Affairs.

If the hospitalization or medical care of the member is not provided

by the United States, the board shall be appointed by the Secretary

of the department having jurisdiction of the member.

(c) A payment made to a person who is designated under this

section discharges the obligation of the United States as to the

amount paid.
217 § 604 TITLE 37—CH. 11—MENTALLY INCOMPETENT PERSONS

(d) A person serving in a legal, medical, fiduciary, or other capacity, may not demand or accept a fee, commission, or other

charge for any service performed under this chapter.

(e) This section does not apply in any case in which a legal

committee, guardian, or other representative has been appointed

by a court of competent jurisdiction, except as to payments made

before the paying agency of the department concerned receives notice of that appointment.

(f) A person who is designated to receive payments under this

section shall furnish satisfactory assurance that the amounts received by him will be applied to the use and benefit of the incompetent member, and, where the payments may reasonably be expected to be more than $1,000, shall provide a suitable bond to be

paid for out of amounts due the incompetent member.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 483; amended P.L. 96–513, § 516(17), Dec. 12, 1980, 94 Stat.

2939; P.L. 101–189, § 1621(b), Nov. 29, 1989, 103 Stat. 1603.)

§ 603. Regulations

The Secretary concerned and the Secretary of Veterans Affairs

shall prescribe regulations necessary to carry out this chapter.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 484; amended P.L. 101–189, § 1621(b), Nov. 29, 1989, 103

Stat. 1603.)

§ 604. Determination of Secretary final

The determination as to the person authorized to receive a

payment under section 602 of this title is final and is not subject

to review by an official of the United States or a court.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 484; amended P.L. 89–718, § 66, Nov. 2, 1966, 80 Stat.

1123.)
218

CHAPTER 13—ALLOTMENTS AND ASSIGNMENTS OF PAY

Sec.

701. Members of the Army, Navy, Air Force, and Marine Corps; contract

surgeons.

[702. Repealed.]

703. Allotments: members of Coast Guard.

704. Allotments: officers of Public Health Service.

[705. Repealed.]

706. Allotments: commissioned officers of the National Oceanic and Atmospheric

Administration.

707. Allotments: members of the National Guard.

§ 701. Members of the Army, Navy, Air Force, and Marine

Corps; contract surgeons

(a) Under regulations prescribed by the Secretary of the military department concerned, a commissioned officer of the Army,

Navy, Air Force, or Marine Corps may transfer or assign his pay

account, when due and payable.

(b) A contract surgeon, or contract dental surgeon, of the Army,

Navy, or Air Force, on duty in Alaska, Hawaii, the Philippine Islands, or Puerto Rico, may transfer or assign his pay account when

due and payable, under the regulations prescribed under subsection (a).

(c) An enlisted member of the Army, Navy, Air Force, or Marine Corps may not assign his pay, and if he does so, the assignment is void.

(d) Under regulations prescribed by the Secretary of Defense,

a member of the Army, Navy, Air Force, or Marine Corps and a

contract surgeon of the Army, Navy, or Air Force may make allotments from the pay of the member or surgeon for the purpose of

supporting relatives or for any other purpose that the Secretary

considers proper. Such allotments may include a maximum of six

allotments considered to be discretionary under such regulations.

For a member or former member entitled to retired or retainer pay,

a maximum of six discretionary allotments authorized during active military service may be continued into retired status, and new

discretionary allotments may be authorized so long as the total

number of discretionary allotments does not exceed six.

(e) If an allotment made under subsection (d) is paid to the allottee before the disbursing officer receives a notice of discontinuance from the officer required by regulation to furnish the notice,

the amount of the allotment shall be credited to the disbursing officer. If an allotment is erroneously paid because the officer required

by regulation to so report failed to report the death of the allotter

or any other fact that makes the allotment not payable, the amount

of the payment not recovered from the allottee shall, if practicable,

be collected by the Secretary concerned from the officer who failed

to make the report.
219 § 707 TITLE 37—CH. 13—ALLOTMENTS

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 484; amended P.L. 89–718, § 67, Nov. 2, 1966, 80 Stat.

1123; P.L. 99–145, § 683(a)(1), (2), Nov. 8, 1985, 99 Stat. 665, P.L. 102–25, § 702(b)(1), April 6,

1991, 105 Stat. 117; P.L. 104–201, § 651(a), Sept. 23, 1996, 110 Stat. 2582.)

ø§ 702. Repealed. P.L. 99–145, § 683(b)(1), 99 Stat. 665.¿

§ 703. Allotments: members of Coast Guard

Members of the Coast Guard may, under regulations prescribed by the Secretary of Homeland Security, make allotments

from their pay and allowances.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 484; amended P.L. 90–623, § 3(1), Oct. 22, 1968, 82 Stat.

1314; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314.)

§ 704. Allotments: officers of Public Health Service

Commissioned officers of the Public Health Service who are on

active duty may, under regulations prescribed by the President,

make allotments from their pay.

ø§ 705. Repealed. P.L. 99–145, § 683(b)(1), 99 Stat. 665.¿

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 485.)

§ 706. Allotments: commissioned officers of the National Oceanic and Atmospheric Administration

Under regulations prescribed by the Secretary of Commerce,

commissioned officers of the National Oceanic and Atmospheric Administration may make allotments or assignments of their pay.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 485; amended P.L. 89–718, § 49(a)(1), Nov. 2, 1966, 80 Stat.

1121; P.L. 96–513, § 516(18)(A), (B), Dec. 12, 1980, 94 Stat. 2939.)

§ 707. Allotments: members of the National Guard

(a) The Secretary of the Army or the Secretary of the Air

Force, as the case may be, may allow a member of the National

Guard who is not on active duty to make allotments from his pay

under sections 204 and 206 of this title for the payment of premiums under a group life insurance program sponsored by the military department of the State in which such member holds his National Guard membership or by the National Guard association of

such State if the State or association concerned has agreed in writing to reimburse the United States for all costs incurred by the

United States in providing for such allotments. The amount of such

costs and procedures for reimbursements shall be determined by

the Secretary of Defense and his determination shall be conclusive.

All amounts of reimbursements for such costs received by the

United States from a State or an association shall be credited to

the appropriations or funds against which charges have been made

for such costs.

(b) The United States is not liable for loss or damage suffered

by a person as a result of an error made by an officer or employee

of the United States in carrying out the allotment program under

subsection (a).

(Added P.L. 93–289, § 11(a), May 24, 1974, 88 Stat. 172; amended P.L. 96–513, § 516(19), Dec.

12, 1980, 94 Stat. 2939; P.L. 97–295, § 3(5), Oct. 12, 1982, 96 Stat. 1304; P.L. 102–25, § 702(b)(1),

April 6, 1991, 105 Stat. 117.)
220

CHAPTER 15—PROHIBITIONS AND PENALTIES

Sec.

[801. Repealed.]

802. Forfeiture of pay during absence from duty due to disease from intemperate

use of alcohol or drugs.

803. Commissioned officers of Army or Air Force: forfeiture of pay when dropped

from rolls.

[804. Repealed.]

[805. Repealed.]

ø§ 801. Repealed. P.L. 103–355, § 6001(a)(1), 108 Stat. 3362.¿

§ 802. Forfeiture of pay during absence from duty due to disease from intemperate use of alcohol or drugs

A member of the Army, Navy, Air Force, or Marine Corps, on

active duty who is absent from his regular duties for a continuous

period of more than one day because of disease that is directly

caused by and immediately follows his intemperate use of alcoholic

liquor or habit-forming drugs is not entitled to pay for the period

of that absence. However, a member whose pay is forfeited for

more than one month is entitled to $5 for personal expenses for

each full month that his pay is forfeited. Determinations of periods

and causes of absence under this section shall be made as prescribed by the Secretary concerned, and are final.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 485.)

§ 803. Commissioned officers of Army or Air Force: forfeiture

of pay when dropped from rolls

A commissioned officer of the Army or the Air Force who is

dropped from the rolls under section 1161(b) of title 10 for absence

without authority for three months forfeits all pay due or to become

due.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 486.)

ø§ 804. Repealed. P.L. 104–106, § 1122(c)(1), 110 Stat. 463.¿

ø§ 805. Repealed. P.L. 99–145, § 683(b)(1), 99 Stat. 665.¿
221

CHAPTER 17—MISCELLANEOUS RIGHTS AND BENEFITS

Sec.

901. Wartime pay of officer of armed force exercising command higher than his

grade.

902. Pay of crews of wrecked or lost naval vessels.

903. Retired members recalled to active duty; former members.

905. Reserve officers of the Navy or Marine Corps not on the active-duty list:

effective date of pay or allowances.

906. Extension of enlistment: effect on pay and allowances.

907. Enlisted members and warrant officers appointed as officers: pay and

allowances stabilized.

908. Employment of reserves and retired members by foreign governments.

909. Special and incentive pay: payment at unreduced rates during suspension

of personnel laws.

§ 901. Wartime pay of officer of armed force exercising command higher than his grade

In time of war, an officer of an armed force who is serving with

troops operating against an enemy and who exercises, under assignment in orders issued by competent authority, a command

above that pertaining to his grade, is entitled to the pay and allowances (not above that of pay grade O–7) appropriate to the command so exercised.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 486.)

§ 902. Pay of crews of wrecked or lost naval vessels

(a) When the accounts of the disbursing officer of a naval vessel are lost as a result of the destruction of the vessel, his return

for the last month may, unless there is official evidence to the contrary, be used in computing later credits to and settling accounts

of persons, other than officers, carried on his accounts. If the return for the last month has not been made, the pay accounts may

be settled on principles of equity and justice.

(b) When a naval vessel is lost or has not been heard from for

so long that her loss may be presumed, the Secretary of the Navy

may fix the date of loss of the vessel for the purpose of settling the

accounts of persons aboard other than officers.

(c) When the crew of a naval vessel is separated from that vessel because of her wreck, loss, or destruction, the pay and emoluments of those officers and enlisted members that the Secretary

considers (because of the sentence of a court-martial or the finding

of a court of inquiry, or by other satisfactory evidence) to have done

their utmost to save the vessel and, after the wreck, loss, or destruction, to have behaved themselves according to the discipline of

the Navy, continue and shall be paid to them until their discharge

or death, whichever is earlier.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 486; amended P.L. 104–316, § 118 Oct. 19, 1996, 110 Stat.

3836.)
§ 903 TITLE 37—CH. 17—MISCELLANEOUS 222

§ 903. Retired members recalled to active duty; former

members

A retired member or former member of a uniformed service, or

a member of the Fleet Reserve or Fleet Marine Corps Reserve, who

is serving on active duty is entitled to the pay and allowances to

which he is entitled, under this title, for the grade, rank, or rating

in which he is serving. In addition, while on active duty, he is entitled to the pay and allowances, while on leave of absence or while

sick, of a member of a uniformed service of similar grade, rank, or

rating who is entitled to basic pay.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 487.)

§ 905. Reserve officers of the Navy or Marine Corps not on

the active-duty list: effective date of pay and allowances

(a) A reserve officer who is promoted under chapter 1405 of

title 10 to a grade above lieutenant (junior grade) in the Naval Reserve or above first lieutenant in the Marine Corps Reserve is entitled to the pay and allowances of the grade to which promoted for

duty performed from the date on which he becomes eligible for promotion to that grade.

(b) A reserve officer who is promoted under section 14308(b) of

title 10 to the grade of lieutenant (junior grade) in the Naval Reserve or first lieutenant in the Marine Corps Reserve is entitled to

the pay and allowances of the higher grade for duty performed

from the date given him as his date of rank.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 488; amended P.L. 95–377, § 9, Sept. 19, 1978, 92 Stat.

721; P.L. 96–513, § 403(b) Dec. 12, 1980, 94 Stat. 2904; P.L. 103–337, § 1676(b)(3), Oct. 5, 1994,

108 Stat. 3019.)

§ 906. Extension of enlistment: effect on pay and allowances

A member of the Army, Navy, Air Force, Marine Corps, or

Coast Guard, as the case may be, who extends his enlistment

under section 509 of title 10 is entitled to the same pay and allowances as though he had reenlisted. For the purposes of determining

entitlement to reenlistment bonus or to travel and transportation

allowances upon discharge, all such extensions of an enlistment are

considered one continuous extension.

(P.L. 87–649 Sept. 7, 1962, 76 Stat. 489; amended P.L. 90–235, § 2(c), Jan. 2, 1968, 81 Stat.

757.)

§ 907. Enlisted members and warrant officers appointed as

officers: pay and allowances stabilized

(a) An enlisted member who accepts an appointment as an officer shall, for service as an officer, be paid the greater of—

(1) the pay and allowances to which he is entitled as an

officer; or

(2) the pay and allowances to which he would be entitled

if he were in the last enlisted grade he held before his appointment as an officer.

(b) A warrant officer who accepts an appointment as a commissioned officer in a pay grade above W–4 shall, for service as such

a commissioned officer, be paid the greater of—
223 § 908 TITLE 37—CH. 17—MISCELLANEOUS

(1) the pay and allowances to which he is entitled as such

a commissioned officer;

(2) the pay and allowances to which he would be entitled

if he were in the last warrant officer grade he held before his

appointment as such a commissioned officer; or

(3) in the case of an officer who was formerly an enlisted

member, the pay and allowances to which he would be entitled

if he were in the last enlisted grade he held before his appointment as an officer.

(c) For the purposes of this section—

(1) the pay and allowances of a grade formerly held by an

officer include—

(A) subject to subsection (d), special and incentive

pays under chapter 5 of this title; and

(B) subject to subsection (e), allowances under chapter

7 of this title; and

(2) the rates of pay and allowances of a grade which an officer formerly held are those to which the officer would have

been entitled had he remained in that grade and continued to

receive the increases in pay eases in pay and allowances authorized for that grade, as otherwise provided in this title.

(d) In determining the amount of the pay and allowances of a

grade formerly held by an officer, incentive pay for hazardous duty

under section 301 of this title, special pay for diving duty under

section 304 of this title, for hardship duty under section 305 of this

title, and for sea duty under section 305a of this title, and proficiency pay under section 307 of this title may be considered only

so long as the officer continues to perform the duty creating the entitlement to or eligibility for that pay and would otherwise be eligible to receive that pay in his former grade.

(e) The clothing allowance under section 418 of this title may

not be considered in determining the amount of the pay and allowances of a grade formerly held by an officer if the officer is entitled

to a uniform allowance under section 415 of this title.

(Added P.L. 91–484, § 1(1), Oct. 21, 1970, 84 Stat. 1083; amended P.L. 96–343, § 6(a)(1), Sept.

8, 1980, 94 Stat. 1126; P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 105–85,

§ 619(d), Nov. 18, 1997, 111 Stat. 1790; P.L. 105–261, § 617(b), Oct. 16, 1998, 112 Stat. 2041.)

§ 908. Employment of reserves and retired members by foreign governments

(a) CONGRESSIONAL CONSENT.—Subject to subsection (b), Congress consents to the following persons accepting civil employment

(and compensation for that employment) for which the consent of

Congress is required by the last paragraph of section 9 of article

I of the Constitution, related to acceptance of emoluments, offices,

or titles from a foreign government:

(1) Retired members of the uniformed services.

(2) Members of a reserve component of the armed forces.

(3) Members of the Commissioned Reserve Corps of the

Public Health Service.

(b) APPROVAL REQUIRED.—A person described in subsection (a)

may accept employment or compensation described in that subsection only if the Secretary concerned and the Secretary of State

approve the employment.
§ 909 TITLE 37—CH. 17—MISCELLANEOUS 224

1Section 1060 of title 10, United States Code, referred to in section 908(c), deals with the military service of retired members of the uniformed services in a military force of a newly democratic nation.

(c) MILITARY SERVICE IN FOREIGN ARMED FORCES.—For a provision of law providing the consent of Congress to service in the

military forces of certain foreign nations, see section 1060 of title

10. 1

(Added P.L. 97–295, § 3(6)(A), Oct. 12, 1982, 96 Stat. 1304; amended P.L. 102–25, § 702(b)(1),

April 6, 1991, 105 Stat. 117; P.L. 103–160, § 1433(c), Nov. 30, 1993, 107 Stat. 1834; P.L. 103–

337, § 1070(d)(6), Oct. 5, 1994, 108 Stat. 2885.)

§ 909. Special and incentive pay: payment at unreduced

rates during suspension of personnel laws

(a) AUTHORITY TO CONTINUE PAYMENT AT UNREDUCED

RATES.—To ensure fairness and recognize the contributions of

members of the armed forces to military essential missions, the

Secretary of the military department concerned may authorize

members who are involuntarily retained on active duty under section 123 or 12305 of title 10 or any other provision of law and who,

immediately before retention on active duty, were entitled or eligible for special pay or incentive pay under chapter 5 of this title,

to receive that special pay or incentive pay for qualifying service

performed during the retention period, without a reduction in the

payment rate below the rate the members received immediately before retention on active duty, notwithstanding any requirement

otherwise applicable to that special pay or incentive pay that would

reduce the payment rate by reason of the years of service of the

members.

(b) SUSPENSION DURING TIME OF WAR.—Subsection (a) does not

apply with respect to a special pay or incentive pay under chapter

5 of this title, whenever the authority to provide that special pay

or incentive pay is suspended by the President or the Secretary of

Defense during a time of war.

(c) QUALIFYING SERVICE DEFINED.—In this section, the term

‘‘qualifying service’’ means service for which a particular special

pay or incentive pay is payable under the authority of a provision

of chapter 5 of this title.

(Added P.L. 107–107, § 623(a)(1), Dec. 28, 2001, 115 Stat. 1142.)
225

CHAPTER 19—ADMINISTRATION

.

Sec.

1001. Regulations relating to pay and allowances.

1002. Additional training or duty without pay: Reserves and members of

National Guard.

1003. Assimilation of pay and allowances.

1004. Computation of pay and allowances for month or part of month.

1005. Army and Air Force: prompt payments required.

1006. Advance payments.

1007. Deductions from pay.

1008. Presidential recommendations concerning adjustments and changes in pay

and allowances.

1009. Adjustments of monthly basic pay.

1010. Commissioned officers: promotions; effective date for pay and allowances.

1011. Mess operations: reimbursement of expenses.

1012. Disbursement and accounting: pay of enlisted members of the National

Guard.

1013. Payment of compensation for victims of terrorism.

1014. Payment date for pay and allowances.

1015. Annual report on effects of recruitment and retention initiatives.

§ 1001. Regulations relating to pay and allowances

(a) A Secretary of a military department may not prescribe a

regulation under this title or any other law, relating to the pay and

allowances of members of an armed force under that department,

unless it has been approved under procedures prescribed by the

Secretary of Defense.

(b) Regulations of the Secretary concerned relating to pay and

allowances matters, similar to those covered by subsection (a), for

members of the Coast Guard, the National Oceanic and Atmospheric Administration, and the Public Health Service, shall, as far

as practicable, conform to regulations approved under that subsection.

(c) The Secretary of Defense, the Secretary of Homeland Security, the Secretary of Commerce, or the Secretary of Health and

Human Services, may obtain from the Comptroller General an advisory opinion with respect to a proposed regulation especially affecting a department under the Secretary’s jurisdiction.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 489; amended P.L. 89–718, §§ 49(a)(1), 69, Nov. 2, 1966,

80 Stat. 1121, 1123; P.L. 90–623, § 3(1), Oct. 22, 1968, 82 Stat. 1314; P.L. 96–513, § 516(22),

Dec. 12, 1980, 94 Stat. 2939; P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 107–

296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314.)

§ 1002. Additional training or duty without pay: Reserves

and members of National Guard

(a) A member of the National Guard, or of a reserve component

of a uniformed service, may, with his consent, be given additional

training or other duty as provided by law, without pay, as may be

authorized by the Secretary concerned.
§ 1003 TITLE 37—CH. 19—ADMINISTRATION 226

(b)(1) A member who performs training or other duty without

pay under subsection (a) may, in the discretion of the Secretary

concerned, be authorized the travel and transportation allowances

prescribed by section 404 (a)–(d), and (f), of this title for travel performed to and from that training or duty, and, during the performance of that training or duty, be furnished with subsistence and

quarters in kind or commutation thereof at a rate to be fixed by

the Secretary concerned.

(2) If a military technician (dual status), as described in section

10216 of title 10, is performing active duty without pay while on

leave from technician employment, as authorized by section 6323(d)

of title 5, the Secretary concerned may authorize the payment of

a per diem allowance to the military technician in lieu of commutation for subsistence and quarters under paragraph (1).

(c) This section does not authorize compensation for work or

study performed by a member of a reserve component in connection

with correspondence courses of an armed force.

(d) This section does not apply to a member who is entitled to

basic pay under chapter 3 of this title.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 489; amended P.L. 102–25, § 702(b)(1), April 6, 1991, 105

Stat. 117; P.L. 106–65, § 672, Oct. 5, 1999, 113 Stat. 674.)

§ 1003. Assimilation of pay and allowances

Chapters 3 and 5 and sections 402–407, 409–411, and 414 of

this title apply equally to persons who are not serving as members

of a uniformed service but whose pay or allowances, or both, are

assimilated under law or a regulation prescribed under law, to the

pay or allowances, or both, of commissioned officers, warrant officers, or enlisted members of any grade, rank, or rating in any uniformed service.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 490.)

§ 1004. Computation of pay and allowances for month or

part of month

A member of a uniformed service who is entitled to pay and

allowances under this title for a continuous period of less than one

month is entitled to his pay and allowances for each day of that

period at the rate of 1⁄30 of the monthly amount of his pay and allowances. The thirty-first day of a calendar month may not be excluded from a computation under this section.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 490.)

§ 1005. Army and Air Force: prompt payments required

Members of the Army and of the Air Force shall be paid at

such times that arrears will at no time be more than two months,

unless circumstances make further arrears unavoidable.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 490.)

§ 1006. Advance payments

(a) Under regulations prescribed by the Secretary concerned, a

member of a uniformed service may be paid in advance—

(1) not more than three months’ pay of such member upon

such member’s change of permanent station; or
227 § 1006 TITLE 37—CH. 19—ADMINISTRATION

(2) the amount of an allotment made from such member’s

pay to a dependent if such member is assigned or scheduled for

assignment to sea duty or other duty with a unit or command

deployed or to be deployed outside the United States and the

allotment is made by such member not more than sixty days

before the scheduled date of the assignment of such member to

such duty.

(b) Under regulations prescribed by the Secretary concerned, a

member of a uniformed service who is on duty at a distant station

where the pay and emoluments to which he is entitled cannot be

disbursed regularly, may be paid in advance.

(c) Under regulations prescribed by the Secretary concerned,

an advance of pay to a member of a uniformed service who is on

duty outside the United States, or other place designated by the

Secretary of Defense, of not more than two months’ basic pay may

be made to a member if the member or the dependents of the member are ordered evacuated by competent authority. An advance of

pay under this subsection is not subject to the conditions under

which advances of pay may be made under subsection (a) or (b). An

advance may be made on the basis of the evacuation of a member’s

dependents only if all dependents of members of the uniformed

services are ordered evacuated from the place where the member’s

dependents are located. In the case of a member with dependents,

the payment may be made directly to dependents previously designated by the member. The Secretary concerned or his designee

may waive any right of recovery of not more than one month’s

basic pay advanced under this subsection if he finds that recovery

of the advance would be against equity and good conscience or

against the public interest.

(d) If a person to whom an advance of pay is made under subsection (a), (b), or (c) dies or is separated from his uniformed service before liquidation of that advance, the amount remaining unliquidated at the time of his death or separation shall be credited to

the account of the disbursing office concerned. However, the unliquidated amount remains a debt of that person or his estate to the

United States.

(e)(1) As far as practicable, regulations for the administration

of subsections (a)–(d) shall be uniform for all of the uniformed services.

(2)(A) Notwithstanding any other provision of law, an obligation for an advance of pay made pursuant to this section shall be

recorded as an obligation only in the fiscal year in which the entitlement of the member to the pay accrues.

(B) Current appropriations available for advance payments

under this section may be transferred to the prior fiscal year appropriation available for the same purpose in the amount of any unliquidated advance payments that remain at the end of such prior fiscal year. Such unliquidated advance payments shall then be credited to the current appropriation.

(f) Under regulations prescribed by the Secretary of Homeland

Security, an advance of pay of not more than three months’ pay

may be made to an officer of the Coast Guard who is ordered to

sea duty or to or from shore duty beyond the seas. In addition, the

Commandant of the Coast Guard may direct such advances as he
§ 1007 TITLE 37—CH. 19—ADMINISTRATION 228

considers necessary and proper to members of the Coast Guard stationed at distant stations where the pay and emoluments to which

they are entitled cannot be paid regularly.

(g) Under regulations prescribed by the Secretary concerned,

the dislocation allowance authorized by section 407 of this title for

a member of a uniformed service whose dependents are covered by

section 405a(a) of this title may be paid in advance of the evacuation of the dependents and to the dependents designated by the

member.

(h) Notwithstanding subsections (a) and (b) of section 3324 of

title 31, the Secretary concerned may, when the last day of the pay

period falls on a Saturday, Sunday, or legal holiday, authorize the

payment of pay and allowances, to members of a uniformed service

under his jurisdiction on the preceding workday but not more than

three days before the last day of that pay period. If a member dies

after he has received an advance payment under this subsection,

but before the last day of the pay period for which the payment is

made, no part of the amount so advanced is recoverable by the

United States.

(i) Under regulations prescribed by the Secretary concerned,

not more than one month’s pay may be paid in advance to a member of the Armed Forces Health Professions Scholarship program

upon reporting for a period of active duty required by section

2121(c) of title 10.

(j) Under regulations prescribed by the Secretary concerned,

not more than one month’s pay may be paid in advance to a member of the Senior Reserve Officers’ Training Corps who is ordered

to field training or a practice required under section 2109 of title

10.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 490; amended P.L. 89–26, § 1(6), May 22, 1965, 79 Stat.

117; P.L. 89–193, Sept. 21, 1965, 79 Stat. 823; P.L. 89–718, § 70, Nov. 2, 1966, 80 Stat. 1123;

P.L. 90–623, § 3(1), (9), Oct. 22, 1968, 82 Stat. 1314, 1315; P.L. 96–76, § 313(b), Sept. 29, 1979,

93 Stat. 586; P.L. 96–215, § 3, Mar. 25, 1980, 94 Stat. 123; P.L. 96–343, § 8, Sept. 8, 1980, 94

Stat. 1128; P.L. 96–513, § 516(23), Dec. 12, 1980, 94 Stat. 2939; P.L. 97–60, § 131(b), Oct. 14,

1981, 95 Stat. 1005; P.L. 97–258, § 3(j), Sept. 13, 1982, 96 Stat. 1065; P.L. 99–145, § 1303(b)(12),

Nov. 8, 1985, 99 Stat. 741; P.L. 99–661, § 602(a), Nov. 14, 1986, 100 Stat. 3874, P.L. 102–25,

§ 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 102–484, § 602(a), Oct. 23, 1992, 106 Stat. 2420;

P.L. 103–160, § 605(a), Nov. 30, 1993, 107 Stat. 1679; P.L. 105–261, § 652, Oct. 16, 1998, 112

Stat. 2051; P.L. 107–296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314.)

§ 1007. Deductions from pay

(a) The pay of an officer of an armed force may be withheld,

under section 5512 of title 5, only for an indebtedness to the United

States admitted by the officer or shown by the judgment of a court,

or upon a special order issued in the discretion of the Secretary of

Defense (or the Secretary of Homeland Security, in the case of a

disbursing official of the Coast Guard when the Coast Guard is not

operating as a service in the Navy), or upon the denial of relief of

an officer pursuant to section 3527 of title 31.

(b) An amount due the United States from an enlisted member

of the Army or the Air Force for articles sold to him on credit under

section 4621(a)(1) or 9621(a)(1) of title 10, as the case may be, shall

be deducted from the next pay due him after the sale is reported.

(c) Under regulations prescribed by the Secretary concerned,

an amount that a member of the uniformed services is administratively determined to owe the United States or any of its instrumen-
229 § 1007 TITLE 37—CH. 19—ADMINISTRATION

talities may be deducted from his pay in monthly installments.

However, after the deduction of pay forfeited by the sentence of a

court-martial, if any, or otherwise authorized by law to be withheld, the deductions authorized by this section may not reduce the

pay actually received for any month to less than one-third of his

pay for that month.

(d) Subject to subsection (c), an amount due the United States

from an enlisted member of the Army or the Air Force may be deducted from his pay on final statement, or from his savings on his

clothing allowance.

(e) The amount of any damage, or cost of repairs, to arms or

equipment caused by the abuse or negligence of a member of the

Army, Navy, Air Force, or Marine Corps, as the case may be, who

had the care of, or was using, the property when it was damaged,

shall be deducted from his pay.

(f) If, upon final settlement of the accounts of an officer of the

Army or the Air Force charged with the issue of an article of military supply, there is a deficiency of that article, or if an article of

military supply with whose issue an officer is charged is damaged,

the value of the lost article or the amount of the damage shall be

charged against the officer and deducted from his monthly pay, unless he shows to the satisfaction of the Secretary of the Army or

the Secretary of the Air Force, as the case may be, by one or more

affidavits setting forth the circumstances, that he was not at fault.

(g) An amount due the United States from an officer of the

Army or the Air Force for rations bought on credit, and for articles

bought on credit under section 4621(a)(1) or 9621(a)(1) of title 10,

shall be deducted from the next pay due that officer after the sale

is reported.

(h)(1) Upon request by a service relief society and subject to

paragraph (2), an amount owed by a member of the uniformed

services to the relief society may be deducted from the pay on final

statement of such member and paid to that relief society.

(2) An amount may not be deducted under paragraph (1) from

the pay of a member unless the Secretary concerned makes a determination of the amount owed in accordance with the regulations

prescribed under subsection (c). Any amount determined to be owed

to a service relief society under this paragraph shall be considered

an amount that the member is administratively determined to owe

the United States under subsection (c) and shall be collectible in

accordance with such subsection.

(3) The Secretaries concerned shall prescribe regulations to

carry out this subsection.

(4) In this subsection, the term ‘‘service relief society’’ means

the Army Emergency Relief, the Air Force Aid Society, the Navy

Relief Society, or the Coast Guard Mutual Assistance.

(i)(1) There shall be deducted each month from the pay of each

enlisted member, warrant officer, and limited duty officer of the

armed forces on active duty an amount (determined under paragraph (3)) not to exceed $1.00.

(2) Amounts deducted under paragraph (1) shall be deposited

in the Armed Forces Retirement Home Trust Fund.

(3) The Secretary of Defense, after consultation with the

Armed Forces Retirement Home Board, shall determine from time
§ 1008 TITLE 37—CH. 19—ADMINISTRATION 230

to time the amount to be deducted under paragraph (1) from the

pay of enlisted members, warrant officers, and limited duty officers

on the basis of the financial needs of the Armed Forces Retirement

Home. The amount to be deducted may be fixed at different

amounts on the basis of grade or length of service, or both.

(4) In this subsection, the term ‘‘armed forces’’ does not include

the Coast Guard when it is not operating as a service in the Navy.

(5) This subsection does not apply to an enlisted member, warrant officer, or limited duty officer of a reserve component.

(P.L. 87–649, Sept. 7, 1962, 76 Stat. 491; amended P.L. 89–718, §§ 71, 72, Nov. 2, 1966, 80 Stat.

1124; P.L. 90–83, § 5(3), Sept. 11, 1967, 81 Stat. 221; P.L. 98–525, § 1305, Oct. 19, 1984, 98 Stat.

2613; P.L. 99–145, § 684, Nov. 8, 1985, 99 Stat. 666; P.L. 100–180, § 633(a), Dec. 4, 1987, 101

Stat. 1105; P.L. 101–189 § 343, Nov. 29, 1989, 103 Stat. 1420; P.L. 101–510, § 1533(b), Nov. 5,

1990, 104 Stat. 1735, P.L. 102–25, § 702(b)(1), April 6, 1991, 105 Stat. 117; P.L. 102–484,

§ 1054(a)(7), Oct. 23, 1992, 106 Stat. 2502; P.L. 103–337, § 371(a), Oct. 5, 1994, 108 Stat. 2735;

P.L. 104–106, § 913(c)(2), Feb. 10, 1996, 110 Stat. 411; P.L. 104–201, § 1009(c)(1), Sept. 23, 1996,

110 Stat. 2635; P.L. 106–65, § 1066(d)(5), Oct. 5, 1999, 113 Stat. 773; P.L. 107–296, § 1704(c),

Nov. 25, 2002, 116 Stat. 2314; P.L. 107–314, § 1006(b), Dec. 2, 2002, 116 Stat. 2633.)

§ 1008. Presidential recommendations concerning adjustments and changes in pay and allowances

(a) The President shall direct an annual review of the adequacy of the pays and allowances authorized by this title for members of the uniformed services.

(b) Whenever the President considers it appropriate, but in no

event later than January 1, 1967, and not less than once each four

years thereafter, he shall direct a complete review of the principles

and concepts of the compensation systems for members of the uniformed services. Upon completion of such review he shall submit a

detailed report to Congress summarizing the results of such review

together with any recommendations he may have proposing

changes in the statutory salary system and other elements of the

compensation structure provided members of the uniformed services.

(Added P.L. 89–132, § 2(a), Aug. 21, 1965, 79 Stat. 546; amended P.L. 104–106, § 642(b), Feb.

10, 1996, 110 Stat. 368.)

§ 1009. Adjustments of monthly basic pay

(a) REQUIREMENT FOR ANNUAL ADJUSTMENT.—Effective on

January 1 of each year, the rates of basic pay for members of the

uniformed services under section 203(a) of this title shall be increased under this section.

(b) EFFECTIVENESS OF ADJUSTMENT.—An adjustment under

this section shall have the force and effect of law.

(c) EQUAL PERCENTAGE INCREASE FOR ALL MEMBERS.—(1) An

adjustment made under this section in a year shall provide all eligible members with an increase in the monthly basic pay that is

the percentage (rounded to the nearest one-tenth of one percent) by

which the ECI for the base quarter of the year before the preceding

year exceeds the ECI for the base quarter of the second year before

the preceding calendar year (if at all).

(2) Notwithstanding paragraph (1), but subject to subsection

(d), the percentage of the adjustment taking effect under this section during each of fiscal years 2004, 2005, and 2006, shall be onehalf of one percentage point higher than the percentage that would

otherwise be applicable under such paragraph.
231 § 1009 TITLE 37—CH. 19—ADMINISTRATION

(3) In this subsection:

(A) The term ‘‘ECI’’ means the Employment Cost Index

(wages and salaries, private industry workers) published quarterly by the Bureau of Labor Statistics.

(B) The term ‘‘base quarter’’ for any year is the threemonth period ending on September 30 of such year.

(d) PROTECTION OF MEMBER’S TOTAL COMPENSATION WHILE

PERFORMING CERTAIN DUTY.—(1) The total daily equivalent

amount of the elements of compensation described in paragraph

(3), together with other pay and allowances under this title, to be

paid to a member of the uniformed services who is temporarily assigned to duty away from the member’s permanent duty station or

to duty under field conditions at the member’s permanent duty station shall not be less, for any day during the assignment period,

than the total amount, for the day immediately preceding the date

of the assignment, of the elements of compensation and other pay

and allowances of the member.

(2) Paragraph (1) shall not apply with respect to an element

of compensation or other pay or allowance of a member during an

assignment described in such paragraph to the extent that the element of compensation or other pay or allowance is reduced or terminated due to circumstances unrelated to the assignment.

(3) The elements of compensation referred to in this subsection

mean—

(A) the monthly basic pay authorized members of the uniformed services by section 203(a) of this title;

(B) the basic allowance for subsistence authorized members of the uniformed services by section 402 of this title; and

(C) the basic allowance for housing authorized members of

the uniformed services by section 403 of this title.

(e) PRESIDENTIAL DETERMINATION OF NEED FOR ALTERNATIVE

PAY ADJUSTMENT.—(1) If, because of national emergency or serious

economic conditions affecting the general welfare, the President

considers the pay adjustment which would otherwise be required

by this section in any year to be inappropriate, the President shall

prepare and transmit to Congress before September 1 of the preceding year a plan for such alternative pay adjustments as the

President considers appropriate, together with the reasons therefor.

(2) In evaluating an economic condition affecting the general

welfare under this subsection, the President shall consider pertinent economic measures including the Indexes of Leading Economic Indicators, the Gross Domestic Product, the unemployment

rate, the budget deficit, the Consumer Price Index, the Producer

Price Index, the Employment Cost Index, and the Implicit Price

Deflator for Personal Consumption Expenditures.

(3) The President shall include in the plan submitted to Congress under paragraph (1) an assessment of the impact that the alternative pay adjustments proposed in the plan would have on the

Government’s ability to recruit and retain well-qualified persons for

the uniformed services.

(Added P.L. 93–419, § 4, Sept. 19, 1974, 88 Stat. 1152; amended P.L. 94–361, § 303, July 14,

1976, 90 Stat. 925; P.L. 96–342, § 803, Sept. 8, 1980, 94 Stat. 1091; P.L. 96–513, § 516(24), Dec.

12, 1980, 94 Stat. 2939, P.L. 102–25, § 702(b)(1) and (2), April 6, 1991, 105 Stat. 117; P.L. 104–

106, § 642(c), Feb. 10, 1996, 110 Stat. 368; P.L. 105–85, § § 604(a)(1), 605, Nov. 18, 1997, 111
§ 1010 TITLE 37—CH. 19—ADMINISTRATION 232

Stat. 1783, 1784; P.L. 106–65, § 602, Oct. 5, 1999, 113 Stat. 649; P.L. 108–136, § 602, Nov. 24,

2003, 117 Stat. 1498.)

§ 1010. Commissioned officers: promotion; effective date for

pay and allowances

An officer of a uniformed service who is promoted to a grade

above second lieutenant or ensign is entitled to the pay and allowances of the grade to which promoted on the effective date of the

promotion.

(Added P.L. 96–513, § 403(c), Dec. 12, 1980, 94 Stat. 2905.)

§ 1011. Mess operation: reimbursement of expenses

(a) The Secretary of Defense shall, by regulation, establish

rates for meals sold at messes to officers, civilians, and enlisted

members. Such rates shall be established at a level sufficient to

provide reimbursement of operating expenses and food costs to the

appropriations concerned, but members of the uniformed services

and civilians in a travel status receiving a per diem allowance in

lieu of subsistence shall be charged at a rate of not less than $2.50

per day. Notwithstanding the preceding sentence, if the Secretary

determines that it is in the best interest of the United States, the

Secretary may reduce a rate for meals established under this subsection by the amount of that rate attributable to operating expenses.

(b) For the purposes of this section, payment for meals at the

rates established under this section may be made in cash or, in the

case of enlisted members or civilian employees, by deduction from

pay. Members of organized nonprofit youth groups sponsored at either the national or local level, when extended the privilege of visiting a military installation or when residing at a military installation pursuant to an agreement in effect on June 30, 1986, and permitted to eat in the general mess by the commanding officer of the

installation, shall pay the commuted ration cost of such meal or

meals.

(c) Spouses and dependent children of enlisted members in pay

grades E–1, E–2, E–3, and E–4 may not be charged for meals sold

at messes in excess of a level sufficient to cover food costs.

(d) When the Coast Guard is not operating as a service in the

Navy, the Secretary of Homeland Security shall establish rates for

meals sold at Coast Guard dining facilities, provide for reimbursement of operating expenses and food costs to the appropriations

concerned, and reduce the rates for such meals when the Secretary

determines that it is in the best interest of the United States to

do so.

(Added P.L. 96–513, § 413, Dec. 12, 1980, 94 Stat. 2906; amended P.L. 99–145, § 810(a), Nov.

8, 1985, 99 Stat. 681; P.L. 99–661, § 655, Nov. 14, 1986, 100 Stat. 3891; P.L. 101–189, § 321,

Nov. 29, 1989, 103 Stat. 1413; P.L. 104–324, § 214(a), Oct. 19, 1996, 110 Stat. 3915; P.L. 107–

296, § 1704(c), Nov. 25, 2002, 116 Stat. 2314.)

§ 1012. Disbursement and accounting: pay of enlisted members of the National Guard

Amounts appropriated for the pay, under subsections (a), (b),

and (d) of section 206, section 301(f), section 402(e), and section

1002 of this title, of enlisted members of the Army National Guard

of the United States or the Air National Guard of the United
233 § 1015 TITLE 37—CH. 19—ADMINISTRATION

States for attending regular periods of duty and instruction shall

be disbursed and accounted for by the Secretary of Defense. All

such disbursements shall be made for 3-month periods for units of

the Army National Guard or Air National Guard under regulations

prescribed by the Secretary of Defense, and on pay rolls prepared

and authenticated as prescribed in those regulations.

(Added P.L. 97–258, § 2(i)(2)(B), Sept. 13, 1982, 96 Stat. 1061; amended P.L. 99–145,

§ 1303(b)(13) (A), (B), Nov. 8, 1985, 99 Stat. 741; P.L. 104–106, § § 602(c)(2), 913(c)(1), Feb. 10,

1996, 110 Stat. 357, 411; P.L. 106–398, § 1 (§ 1087(b)(5)), Oct. 30, 2000, 114 Stat. 1654A–292.)

§ 1013. Payment of compensation for victims of terrorism

Any benefit or payment pursuant to section 559 of this title,

or section 1032 or 1095a or chapter 110 of title 10, shall be paid

out of funds available to the Secretary concerned for military personnel.

(Added P.L. 99–399, § 806(e)(1), Aug. 27, 1986, 100 Stat. 888; amended P.L. 100–456,

§ 1233(g)(4), Sept. 29, 1988, 102 Stat. 2050; P.L. 101–510, § 1484(h)(6), Nov. 5, 1990, 104 Stat.

1718.)

§ 1014. Payment date for pay and allowances

(a) Amounts of basic pay, basic allowance for housing, basic allowance for subsistence, and other payments of military compensation (other than travel and transportation allowances and separation allowances) shall be paid on the first day of the month beginning after the month during which the right to such compensation

accrues.

(b) Subsection (a) does not preclude one payment in midmonth

for any element of compensation and does not affect any authority

to make advance payments of pay and allowances.

(Added P.L. 99–500, § 101(c), [§ 9103], Oct. 18, 1986, 100 Stat. 1783–118, § 1013; amended P.L.

99–591, § 101(c), [§ 9103], Oct. 30, 1986, 100 Stat. 3341–118, § 1013; renumbered § 1014, P.L.

100–26, § 8(b)(2), Apr. 21, 1987, 101 Stat. 285; amended P.L. 105–85, § 603(d)(1)(E), Nov. 18,

1997, 111 Stat. 1782.)

§ 1015. Annual report on effects of recruitment and retention initiatives

Not later than December 1 of each year, the Secretary of Defense shall submit to Congress a report that sets forth the Secretary’s assessment of the effects that the improvements to compensation and other personnel benefits made by title VI of the National Defense Authorization Act for Fiscal Year 2000 are having

on the recruitment of persons to join the armed forces and the retention of members of the armed forces.

(Added P.L. 106–65, § 673, Oct. 5, 1999, 113 Stat. 674.)

235

C. WEAPONS PROGRAMS AND LIMITATIONS

[As amended through the end of the first session of the

108th Congress, December 31, 2003]

237

1. BALLISTIC MISSILE DEFENSE

a. National Defense Authorization Act for Fiscal Year 2002

(Public Law 107–107, approved Dec. 28, 2001)

TITLE II—RESEARCH, DEVELOPMENT, TEST, AND

EVALUATION

* * * * * * *

Subtitle C—Ballistic Missile Defense

SEC. 231. TRANSFER OF RESPONSIBILITY FOR PROCUREMENT FOR

MISSILE DEFENSE PROGRAMS FROM BALLISTIC MISSILE

DEFENSE ORGANIZATION TO MILITARY DEPARTMENTS.

[Omitted-Amendments]

SEC. 232. ø10 U.S.C. 2431 note¿ PROGRAM ELEMENTS FOR MISSILE DEFENSE AGENCY.

(a) REVISION IN PROGRAM ELEMENTS.—[Omitted-Amendments]

(b) ADDITIONAL REQUIREMENTS.—[Omitted-Amendments]

(c) REQUIREMENT FOR ANNUAL PROGRAM GOALS.—(1) The Secretary of Defense shall each year establish cost, schedule, testing,

and performance goals for the ballistic missile defense programs of

the Department of Defense for the period covered by the futureyears defense program that is submitted to Congress that year

under section 221 of title 10, United States Code. Not later than

February 1 each year, the Secretary shall submit to the congressional defense committees a statement of the goals so established.

(2) The statement of goals submitted under paragraph (1) for

any year after 2002 shall be an update of the statement submitted

under that paragraph for the preceding year.

(3) Each statement of goals submitted under paragraph (1)

shall set forth cost, schedule, testing, and performance goals that

pertain to each then-current program element for ballistic missile

defense systems in effect pursuant to subsection (a) or (b) of section

223 of title 10, United States Code.

(d) ANNUAL PROGRAM PLAN.—(1) With the submission of the

statement of goals under subsection (c) for any year, the Secretary

of Defense shall submit to the congressional defense committees a

program of activities planned to be carried out for each missile defense program that enters engineering and manufacturing development (as defined in section 223(b)(2) of title 10, United States

Code).

(2) Each program plan under paragraph (1) shall include the

following:

(A) A funding profile that includes an estimate of—
FY02 MISSILE DEFENSE PROGRAMS 238

(i) the total expenditures to be made in the fiscal year

in which the plan is submitted and the following fiscal

year, together with the estimated total life-cycle costs of

the program; and

(ii) a display of such expenditures (shown for significant procurement, construction, and research and development) for the fiscal year in which the plan is submitted

and the following fiscal year.

(B) A program schedule for the fiscal year in which the

plan is submitted and the following fiscal year for each of the

following:

(i) Significant procurement.

(ii) Construction.

(iii) Research and development.

(iv) Flight tests.

(v) Other significant testing activities.

(3) Information specified in paragraph (2) need not be included

in the plan for any year under paragraph (1) to the extent such information has already been provided, or will be provided in the current fiscal year, in annual budget justification documents of the Department of Defense submitted to Congress or in other required reports to Congress.

(e) INTERNAL DOD REVIEWS.—(1) The officials and elements of

the Department of Defense specified in paragraph (2) shall on an

ongoing basis—

(A) review the development of goals under subsection (c)

and the annual program plan under subsection (d); and

(B) provide to the Secretary of Defense and the Director of

the Missile Defense Agency any comments on such matters as

considered appropriate.

(2) Paragraph (1) applies with respect to the following:

(A) The Under Secretary of Defense for Acquisition, Technology, and Logistics.

(B) The Director of Operational Test and Evaluation.

(C) The Director of Program Analysis and Evaluation.

(D) The Joint Requirements Oversight Council.

(E) The Cost Analysis and Improvement Group.

(f) DEMONSTRATION OF CRITICAL TECHNOLOGIES.—(1) The Director of the Missile Defense Agency shall develop a plan for ensuring that each critical technology for a missile defense program is

successfully demonstrated in an appropriate environment before

that technology enters into operational service as part of a missile

defense program.

(2) The Director of Operational Test and Evaluation of the Department of Defense shall monitor the development of the plan

under paragraph (1) and shall submit to the Director of the Missile

Defense Agency any comments regarding that plan that the Director of Operational Test and Evaluation considers appropriate.

(g) COMPTROLLER GENERAL ASSESSMENT.—(1) At the conclusion of each of fiscal years 2002 and 2003, the Comptroller General

of the United States shall assess the extent to which the Missile

Defense Agency achieved the goals established under subsection (c)

for such fiscal year.

(2) Not later than February 15, 2003, and February 15, 2004,

the Comptroller General shall submit to the congressional defense
239 FY02 MISSILE DEFENSE PROGRAMS

committees a report on the Comptroller General’s assessment

under paragraph (1) with respect to the preceding fiscal year.

(h) ANNUAL OT&E ASSESSMENT OF TEST PROGRAM.—(1) The

Director of Operational Test and Evaluation shall each year assess

the adequacy and sufficiency of the Missile Defense Agency test

program during the preceding fiscal year.

(2) Not later than February 15 each year the Director shall

submit to the congressional defense committees a report on the assessment under paragraph (1) with respect to the preceding fiscal

year.

SEC. 233. SUPPORT OF BALLISTIC MISSILE DEFENSE ACTIVITIES OF

THE DEPARTMENT OF DEFENSE BY THE NATIONAL DEFENSE LABORATORIES OF THE DEPARTMENT OF ENERGY.

(a) FUNDS TO CARRY OUT CERTAIN BALLISTIC MISSILE DEFENSE

ACTIVITIES.—Of the amounts authorized to be appropriated to the

Department of Defense pursuant to section 201(4), $25,000,000

shall be available, subject to subsection (b) and at the discretion of

the Director of the Missile Defense Agency, for research, development, and demonstration activities at the national laboratories of

the Department of Energy in support of the missions of the Missile

Defense Agency, including the following activities:

(1) Technology development, concept demonstration, and

integrated testing to enhance performance, reduce risk, and

improve reliability in hit-to-kill interceptors for ballistic missile

defense.

(2) Support for science and engineering teams to assess

critical technical problems and prudent alternative approaches

as agreed upon by the Director of the Missile Defense Agency

and the Administrator for Nuclear Security.

(b) REQUIREMENT FOR MATCHING FUNDS FROM NNSA.—Funds

shall be available as provided in subsection (a) only if the Administrator for Nuclear Security makes available matching funds for the

activities referred to in subsection (a).

(c) MEMORANDUM OF UNDERSTANDING.—The activities referred

to in subsection (a) shall be carried out under the memorandum of

understanding entered into by the Secretary of Energy and the Secretary of Defense for the use of national laboratories for ballistic

missile defense programs, as required by section 3131 of the National Defense Authorization Act for Fiscal Year 1998 (Public Law

105–85; 111 Stat. 2034) and modified pursuant to section 3132 of

the Floyd D. Spence National Defense Authorization Act for Fiscal

Year 2001 (as enacted into law by Public Law 106–398; 114 Stat.

1654A–455) to provide for jointly funded projects.

SEC. 234. ø10 U.S.C. 2431 note¿ MISSILE DEFENSE TESTING INITIATIVE.

(a) TESTING INFRASTRUCTURE.—(1) The Secretary of Defense

shall ensure that each annual budget request of the Department of

Defense—

(A) is designed to provide for comprehensive testing of ballistic missile defense programs during early stages of development; and

(B) includes necessary funding to support and improve test

infrastructure and provide adequate test assets for the testing

of such programs.
FY02 MISSILE DEFENSE PROGRAMS 240

(2) The Secretary shall ensure that ballistic missile defense

programs incorporate, to the greatest possible extent, operationally

realistic test configurations (referred to as ‘‘test bed’’ configurations) to demonstrate system performance across a broad range of

capability and, during final stages of operational testing, to demonstrate reliable performance.

(3) The Secretary shall ensure that the test infrastructure for

ballistic missile defense programs is capable of supporting continued testing of ballistic missile defense systems after deployment.

(b) REQUIREMENTS FOR EARLY STAGES OF SYSTEM DEVELOP- MENT.—In order to demonstrate acceptable risk and developmental

stability, the Secretary of Defense shall ensure that any ballistic

missile defense program incorporates, to the maximum extent practicable, the following elements during the early stages of system

development:

(1) Pursuit of parallel conceptual approaches and technological paths for all critical problematic components until effective and reliable solutions can be demonstrated.

(2) Comprehensive ground testing in conjunction with

flight-testing for key elements of the proposed system that are

considered to present high risk, with such ground testing to

make use of existing facilities and combinations of facilities

that support testing at the highest possible levels of integration.

(3) Where appropriate, expenditures to enhance the capabilities of existing test facilities, or to construct new test facilities, to support alternative complementary test methodologies.

(4) Sufficient funding of test instrumentation to ensure accurate measurement of all critical test events.

(5) Incorporation into the program of sufficient schedule

flexibility and expendable test assets, including missile interceptors and targets, to ensure that failed or aborted tests can

be repeated in a prudent, but expeditious manner.

(6) Incorporation into flight-test planning for the program,

where possible, of—

(A) methods that make the most cost-effective use of

test opportunities;

(B) events to demonstrate engagement of multiple targets, ‘‘shoot-look-shoot’’, and other planned operational

concepts; and

(C) exploitation of opportunities to facilitate early development and demonstration of ‘‘family of systems’’ concepts.

(c) SPECIFIC REQUIREMENTS FOR GROUND-BASED MID-COURSE

INTERCEPTOR SYSTEMS.—For ground-based mid-course interceptor

systems, the Secretary of Defense shall initiate steps during fiscal

year 2002 to establish a flight-test capability of launching not less

than three missile defense interceptors and not less than two ballistic missile targets to provide a realistic test infrastructure.

SEC. 235. CONSTRUCTION OF TEST BED FACILITIES FOR MISSILE DEFENSE SYSTEM.

(a) AUTHORITY TO ACQUIRE OR CONSTRUCT FACILITIES.—(1)

The Secretary of Defense, using funds appropriated to the Department of Defense for research, development, test, and evaluation for

fiscal years after fiscal year 2001 that are available for programs
241 FY01 MISSILE DEFENSE PROGRAMS

of the Missile Defense Agency, may carry out all construction

projects, or portions of construction projects, including projects for

the acquisition, improvement, or construction of facilities, necessary to establish and operate the Missile Defense System Test

Bed.

(2) The authority provided in subsection (a) may be used to acquire, improve, or construct facilities at a total cost not to exceed

$500,000,000.

(b) AUTHORITY TO PROVIDE ASSISTANCE TO LOCAL COMMUNITIES.—(1) Subject to paragraph (2), the Secretary of Defense,

using funds appropriated to the Department of Defense for research, development, test, and evaluation for fiscal year 2002 or

2004 that are available for programs of the Missile Defense Agency, may provide assistance to local communities to meet the need

for increased municipal or community services or facilities resulting from the construction, installation, or operation of the Missile

Defense System Test Bed Facilities. Such assistance may be provided by grant or otherwise.

(2) Assistance may be provided to a community under paragraph (1) only if the Secretary of Defense determines that there is

an immediate and substantial increase in the need for municipal

or community services or facilities as a direct result of the construction, installation, or operation of the Missile Defense System

Test Bed Facilities.

(3) Not later than 60 days after the date of the enactment of

the National Defense Authorization Act for Fiscal Year 2004 øNov.

24, 2003¿, the Secretary of Defense shall submit to the congressional defense committees a report on the community assistance

projects under this subsection that are to be supported using funds

referred to in paragraph (1) for fiscal year 2004. The report shall

include, for each such project, a description of the project and an

estimate of the total cost of the project.

b. Floyd D. Spence National Defense Authorization Act for

Fiscal Year 2001

(as enacted into law by Public Law 106–398, approved Oct. 30, 2000)

TITLE II—RESEARCH, DEVELOPMENT, TEST, AND

EVALUATION

* * * * * * *

Subtitle C—Ballistic Missile Defense

SEC. 231. FUNDING FOR FISCAL YEAR 2001.

Of the funds authorized to be appropriated in section 201(4), $1,875,238,000 shall be available for the National Missile Defense

program.

SEC. 232. REPORTS ON BALLISTIC MISSILE THREAT POSED BY NORTH

KOREA.

(a) REPORT ON BALLISTIC MISSILE THREAT.—Not later than

two weeks after the next flight test by North Korea of a long-range

ballistic missile, the President shall submit to Congress, in classified and unclassified form, a report on the North Korean ballistic
FY01 MISSILE DEFENSE PROGRAMS 242

missile threat to the United States. The report shall include the

following:

(1) An assessment of the current North Korean missile

threat to the United States.

(2) An assessment of whether the United States is capable

of defeating the North Korean long-range missile threat to the

United States as of the date of the report.

(3) An assessment of when the United States will be capable of defeating the North Korean missile threat to the United

States.

(4) An assessment of the potential for proliferation of

North Korean missile technologies to other states and whether

such proliferation will accelerate the development of additional

long-range ballistic missile threats to the United States.

(b) REPORT ON REDUCING VULNERABILITY.—Not later than two

weeks after the next flight test by North Korea of a long-range ballistic missile, the President shall submit to Congress a report providing the following:

(1) Any additional steps the President intends to take to

reduce the period of time during which the Nation is vulnerable to the North Korean long-range ballistic missile threat.

(2) The technical and programmatic viability of testing any

other missile defense systems against targets with flight characteristics similar to the North Korean long-range missile

threat, and plans to do so if such tests are considered to be a

viable alternative.

(c) DEFINITION.—For purposes of this section, the term ‘‘United

States’’, when used in a geographic sense, means the 50 States, the

District of Columbia, and any Commonwealth, territory, or possession of the United States.

SEC. 233. PLAN TO MODIFY BALLISTIC MISSILE DEFENSE ARCHITECTURE.

(a) PLAN.—The Director of the Ballistic Missile Defense Organization shall develop a plan to adapt ballistic missile defense systems and architectures to counter potential threats to the United

States, United States forces deployed outside the United States,

and other United States national security interests that are posed

by longer range medium-range ballistic missiles and intermediaterange ballistic missiles.

(b) USE OF SPACE-BASED SENSORS INCLUDED.—The plan shall

include—

(1) potential use of space-based sensors, including the

Space-Based Infrared System (SBIRS) Low and Space-Based

Infrared System (SBIRS) High, Navy theater missile defense

assets, upgrades of land-based theater missile defenses, the

airborne laser, and other assets available in the European theater; and

(2) a schedule for ground and flight testing against the

identified threats.

(c) REPORT.—The Secretary of Defense shall assess the plan

and, not later than February 15, 2001, shall submit to the congressional defense committees a report on the results of the assessment.
243 FY01 MISSILE DEFENSE PROGRAMS

SEC. 234. MANAGEMENT OF AIRBORNE LASER PROGRAM.

(a) OVERSIGHT OF FUNDING, SCHEDULE, AND TECHNICAL RE- QUIREMENTS.—With respect to the program known as of the date

of the enactment of this Act as the ‘‘Airborne Laser’’ program, the

Secretary of Defense shall require that the Secretary of the Air

Force obtain the concurrence of the Director of the Ballistic Missile

Defense Organization before the Secretary—

(1) makes any change to the funding plan or schedule for

that program that would delay to a date later than September

30, 2003, the first test of the airborne laser that is intended

to destroy a ballistic missile in flight;

(2) makes any change to the funding plan for that program

in the future-years defense program that would delay the initial operational capability of the airborne laser; and

(3) makes any change to the technical requirements of the

airborne laser that would significantly reduce its ballistic missile defense capabilities.

(b) REPORT.—Not later than February 15, 2001, the Director of

the Ballistic Missile Defense Organization shall submit to the congressional defense committees a report, to be prepared in coordination with the Secretary of the Air Force, on the role of the airborne

laser in the family of systems missile defense architecture developed by the Director of the Ballistic Missile Defense Organization

and the Director of the Joint Theater Air and Missile Defense Organization. The report shall be submitted in unclassified and, if

necessary, classified form. The report shall include the following:

(1) An assessment by the Secretary of the Air Force and

the Director of the Ballistic Missile Defense Organization of

the funding plan for that program required to achieve the

schedule identified in paragraphs (1) and (2) of subsection (a).

(2) Potential future airborne laser roles in that architecture.

(3) An assessment of the effect of deployment of the airborne laser on requirements for theater ballistic missile defense systems.

(4) An assessment of the cost effectiveness of the airborne

laser compared to other ballistic missile defense systems.

(5) An assessment of the relative significance of the airborne laser in the family of systems missile defense architecture.

* * * * * * *

TITLE XXXI—DEPARTMENT OF ENERGY NATIONAL

SECURITY PROGRAMS

* * * * * * *

Subtitle C—Program Authorizations, Restrictions, and

Limitations

* * * * * * *

SEC. 3132. ø10 U.S.C. 2431 note¿ ENHANCED COOPERATION BETWEEN

NATIONAL NUCLEAR SECURITY ADMINISTRATION AND

MISSILE DEFENSE AGENCY.

(a) JOINTLY FUNDED PROJECTS.—The Secretary of Energy and

the Secretary of Defense shall modify the memorandum of under-
FY00 MISSILE DEFENSE PROGRAMS 244

standing for the use of the national laboratories for ballistic missile

defense programs, entered into under section 3131 of the National

Defense Authorization Act for Fiscal Year 1998 (Public Law 105–

85; 111 Stat. 2034; 10 U.S.C. 2431 note), to provide for jointly funded projects.

(b) REQUIREMENTS FOR PROJECTS.—The projects referred to in

subsection (a) shall—

(1) be carried out by the National Nuclear Security Administration and the Missile Defense Agency; and

(2) contribute to sustaining—

(A) the expertise necessary for the viability of such

laboratories; and

(B) the capabilities required to sustain the nuclear

stockpile.

(c) PARTICIPATION BY NNSA IN CERTAIN MDA ACTIVITIES.— The Administrator for Nuclear Security and the Director of the

Missile Defense Agency shall implement mechanisms that increase

the cooperative relationship between those organizations. Those

mechanisms may include participation by personnel of the National

Nuclear Security Administration in the following activities of the

Missile Defense Agency:

(1) Peer reviews of technical efforts.

(2) Activities of so-called ‘‘red teams’’.

c. National Defense Authorization Act for Fiscal Year 2000

(Public Law 106–65, approved Oct. 5, 1999)

TITLE II—RESEARCH, DEVELOPMENT, TEST, AND

EVALUATION

* * * * * * *

Subtitle C—Ballistic Missile Defense

SEC. 231. SPACE BASED INFRARED SYSTEM (SBIRS) LOW PROGRAM.

(a) PRIMARY MISSION OF SBIRS LOW SYSTEM.—The primary

mission of the system designated as of the date of the enactment

of this Act as the Space Based Infrared System Low (hereinafter

in this section referred to as the ‘‘SBIRS Low system’’) is ballistic

missile defense. The Secretary of Defense shall carry out the acquisition program for that system consistent with that primary mission.

(b) OVERSIGHT OF CERTAIN PROGRAM FUNCTIONS.—With respect to the SBIRS Low system, the Secretary of Defense shall require that the Secretary of the Air Force obtain the approval of the

Director of the Ballistic Missile Defense Organization before the

Secretary—

(1) establishes any system level technical requirement or

makes any change to any such requirement;

(2) makes any change to the SBIRS Low baseline schedule;

or

(3) makes any change to the budget baseline identified in

the fiscal year 2000 future-years defense program.

(c) PRIORITY FOR ANCILLARY MISSIONS.—The Secretary of Defense shall ensure that the Director of the Ballistic Missile Defense
245 FY00 MISSILE DEFENSE PROGRAMS

Organization, in executing the authorities specified in subsection

(b), engages in appropriate coordination with the Secretary of the

Air Force and elements of the intelligence community to ensure

that ancillary SBIRS Low missions (that is, missions other than

the primary mission of ballistic missile defense) receive proper priority to the extent that those ancillary missions do not increase

technical or schedule risk.

(d) MANAGEMENT AND FUNDING BUDGET ACTIVITY.—The Secretary of Defense shall transfer the management and budgeting of

funds for the SBIRS Low system from the Tactical Intelligence and

Related Activities (TIARA) budget aggregation to a nonintelligence

budget activity of the Air Force.

(e) DEADLINE FOR DEFINITION OF SYSTEM REQUIREMENTS.—The

system level technical requirements for the SBIRS Low system

shall be defined not later than July 1, 2000.

(f) DEFINITIONS.—For purposes of this section:

(1) The term ‘‘system level technical requirements’’ means

those technical requirements and those functional requirements of a system, expressed in terms of technical performance

and mission requirements, including test provisions, that determine the direction and progress of the systems engineering

effort and the degree of convergence upon a balanced and complete configuration.

(2) The term ‘‘SBIRS Low baseline schedule’’ means a program schedule that includes—

(A) a Milestone II decision on entry into engineering

and manufacturing development to be made during fiscal

year 2002;

(B) a critical design review to be conducted during fiscal year 2003; and

(C) a first launch of a SBIRS Low satellite to be made

during fiscal year 2006.

SEC. 232. THEATER MISSILE DEFENSE UPPER TIER ACQUISITION

STRATEGY.

(a) REVISED UPPER TIER STRATEGY.—The Secretary of Defense

shall establish an acquisition strategy for the two upper tier missile defense systems that—

(1) retains funding for both of the upper tier systems in

separate, independently managed program elements throughout the future-years defense program;

(2) bases funding decisions and program schedules for each

upper tier system on the performance of each system independent of the performance of the other system; and

(3) provides for accelerating the deployment of both of the

upper tier systems to the maximum extent practicable.

(b) UPPER TIER SYSTEMS DEFINED.—For purposes of this section, the upper tier missile defense systems are the following:

(1) The Navy Theater Wide system.

(2) The Theater High-Altitude Area Defense (THAAD) system.

SEC. 233. ACQUISITION STRATEGY FOR THEATER HIGH-ALTITUDE

AREA DEFENSE (THAAD) SYSTEM.

[Omitted-Amendments]
FY00 MISSILE DEFENSE PROGRAMS 246

SEC. 234. SPACE-BASED LASER PROGRAM.

(a) STRUCTURE OF PROGRAM.—The Secretary of Defense shall

structure the space-based laser program to include—

(1) an integrated flight experiment; and

(2) an ongoing analysis and technology effort to support

the development of an objective system design.

(b) INTEGRATED FLIGHT EXPERIMENT PROGRAM BASELINE.—Not

later than March 15, 2000, the Secretary of Defense, in consultation with the joint venture contractors for the space-based laser

program, shall establish a program baseline for the integrated

flight experiment referred to in subsection (a)(1).

(c) STRUCTURE OF INTEGRATED FLIGHT EXPERIMENT PROGRAM

BASELINE.—The program baseline established under subsection (b)

shall be structured to—

(1) demonstrate at the earliest date consistent with the requirements of this section the fundamental end-to-end capability to acquire, track, and destroy a boosting ballistic missile

with a lethal laser from space; and

(2) establish a balance between the use of mature technology and more advanced technology so that the integrated

flight experiment, while providing significant information that

can be used in planning and implementing follow-on phases of

the space-based laser program, will be launched as soon as

practicable.

(d) FUNDS AVAILABLE FOR INTEGRATED FLIGHT EXPERIMENT.— Amounts shall be available for the integrated flight experiment as

follows:

(1) From amounts available pursuant to section 201(3), $73,840,000.

(2) From amounts available pursuant to section 201(4), $75,000,000.

(e) LIMITATION ON OBLIGATION OF FUNDS FOR INTEGRATED

FLIGHT EXPERIMENT.—No funds made available in subsection (d)

for the integrated flight experiment may be obligated until the Secretary of the Air Force—

(1) develops a specific spending plan for such amounts; and

(2) provides such plan to the congressional defense committees.

(f) OBJECTIVE SYSTEM DESIGN.—To support the development of

an objective system design for a space-based laser system suited to

the operational and technological environment that will exist when

such a system can be deployed, the Secretary of Defense shall establish an analysis and technology effort that complements the integrated flight experiment. That effort shall include the following:

(1) Research and development on advanced technologies

that will not be demonstrated on the integrated flight experiment but may be necessary for an objective system.

(2) Architecture studies to assess alternative constellation

and system performance characteristics.

(3) Planning for the development of a space-based laser

prototype that—

(A) uses the lessons learned from the integrated flight

experiment; and

(B) is supported by the ongoing research and development under paragraph (1), the architecture studies under
247 FY00 MISSILE DEFENSE PROGRAMS

paragraph (2), and other relevant advanced technology research and development.

(g) FUNDS AVAILABLE FOR OBJECTIVE SYSTEM DESIGN DURING

FISCAL YEAR 2000.—During fiscal year 2000, the Secretary of the

Air Force may use amounts made available for the integrated flight

experiment under subsection (d) for the purpose of supporting the

effort specified in subsection (f) if the Secretary of the Air Force

first—

(1) determines that such amounts are needed for that purpose;

(2) develops a specific spending plan for such amounts; and

(3) consults with the congressional defense committees regarding such plan.

(h) ANNUAL REPORT.—For each year in the three-year period

beginning with the year 2000, the Secretary of Defense shall, not

later than March 15 of that year, submit to the congressional defense committees a report on the space-based laser program. Each

such report shall include the following:

(1) The program baseline for the integrated flight experiment.

(2) Any changes in that program baseline.

(3) A description of the activities of the space-based laser

program in the preceding year.

(4) A description of the activities of the space-based laser

program planned for the next fiscal year.

(5) The funding planned for the space-based laser program

throughout the future-years defense program.

SEC. 235. CRITERIA FOR PROGRESSION OF AIRBORNE LASER PROGRAM.

(a) MODIFICATION OF PDRR AIRCRAFT.—No modification of the

PDRR aircraft may commence until the Secretary of the Air Force

certifies to Congress that the commencement of such modification

is justified on the basis of existing test data and analyses involving

the following activities:

(1) The North Oscura Peak test program.

(2) Scintillometry data collection and analysis.

(3) The lethality/vulnerability program.

(4) The countermeasures test and analysis effort.

(5) Reduction and analysis of atmospheric data for fiscal

years 1997 and 1998.

(b) ACQUISITION OF EMD AIRCRAFT AND FLIGHT TEST OF PDRR

AIRCRAFT.—In carrying out the Airborne Laser program, the Secretary of Defense shall ensure that the Authority-to-Proceed-2 decision is not made until the Secretary of Defense—

(1) ensures that the Secretary of the Air Force has developed an appropriate plan for resolving the technical challenges

identified in the Airborne Laser Program Assessment;

(2) approves that plan; and

(3) submits that plan to the congressional defense committees.

(c) ENTRY INTO EMD PHASE.—The Secretary of Defense shall

ensure that the Milestone II decision is not made until—

(1) the PDRR aircraft undergoes a robust series of flight

tests that validates the technical maturity of the Airborne
Sec. 2 MISSILE DEFENSE PROGRAMS 248

Laser program and provides sufficient information regarding

the performance of the Airborne Laser system; and

(2) sufficient technical information is available to determine whether adequate progress is being made in the ongoing

effort to address the operational issues identified in the Airborne Laser Program Assessment.

(d) MODIFICATION OF EMD AIRCRAFT.—The Secretary of the

Air Force may not commence any modification of the EMD aircraft

until the Milestone II decision is made.

(e) DEFINITIONS.—In this section:

(1) The term ‘‘PDRR aircraft’’ means the aircraft relating

to the program definition and risk reduction phase of the Airborne Laser program.

(2) The term ‘‘EMD aircraft’’ means the aircraft relating to

the engineering and manufacturing development phase of the

Airborne Laser program.

(3) The term ‘‘Authority-to-Proceed-2 decision’’ means the

decision allowing acquisition of the EMD aircraft and flight

testing of the PDRR aircraft.

(4) The term ‘‘Milestone II decision’’ means the decision allowing the entry of the Airborne Laser program into the engineering and manufacturing development phase.

(5) The term ‘‘Airborne Laser Program Assessment’’ means

the report titled ‘‘Assessment of Technical and Operational Aspects of the Airborne Laser Program’’, submitted to Congress

by the Secretary of Defense on March 9, 1999.

* * * * * * *

d. National Missile Defense Act of 1999

(Public Law 106–38, approved July 22, 1999)

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘National Missile Defense Act of

1999’’.

SEC. 2. ø10 U.S.C. 2431 note¿ NATIONAL MISSILE DEFENSE POLICY.

It is the policy of the United States to deploy as soon as is

technologically possible an effective National Missile Defense system capable of defending the territory of the United States against

limited ballistic missile attack (whether accidental, unauthorized,

or deliberate) with funding subject to the annual authorization of

appropriations and the annual appropriation of funds for National

Missile Defense.

SEC. 3. ø22 U.S.C. 5901 note¿ POLICY ON REDUCTION OF RUSSIAN NUCLEAR FORCES.

It is the policy of the United States to seek continued negotiated reductions in Russian nuclear forces.

* * * * * * *
249 Sec. 2705 MISSILE DEFENSE PROGRAMS

1The subsection (c) referred to in section 2705 provides as follows:

(c) POLICY WITH RESPECT TO BALLISTIC MISSILE DEFENSE COOPERATION.— (1) IN GENERAL.—As the United States proceeds with efforts to develop defenses against

ballistic missile attack, it should seek to foster a climate of cooperation with Russia on matters related to missile defense. In particular, the United States and its NATO allies should

seek to cooperate with Russia in such areas as early warning.

(2) DISCUSSIONS WITH NATO ALLIES.—The United States should initiate discussions with

its NATO allies for the purpose of examining the feasibility of deploying a ballistic missile

defense capable of protecting NATO’s southern and eastern flanks from a limited ballistic

missile attack.

(3) CONSTITUTIONAL PREROGATIVES.—Even as the Congress seeks to promote ballistic missile defense cooperation with Russia, it must insist on its constitutional prerogatives regarding consideration of arms control agreements with Russia that bear on ballistic missile defense.

e. Restrictions and Requirements Relating to Ballistic

Missile Defense

(Section 2705 of the Foreign Affairs Reform and Restructuring Act of 1998 (division

G of the Omnibus Consolidated and Emergency Supplemental Appropriations Act,

1999; Public Law 105–277; approved Oct. 21, 1998))

SEC. 2705. ø22 U.S.C. 1928 note¿ RESTRICTIONS AND REQUIREMENTS

RELATING TO BALLISTIC MISSILE DEFENSE.

(a) POLICY OF SECTION.—This section is enacted in order to implement the policy set forth in section 2702(c). 1

(b) RESTRICTION ON ENTRY INTO FORCE OF ABM/TMD DEMAR- CATION AGREEMENTS.—An ABM/TMD demarcation agreement shall

not be binding on the United States, and shall not enter into force

with respect to the United States, unless, after the date of enactment of this Act, that agreement is specifically approved with the

advice and consent of the United States Senate pursuant to Article

II, section 2, clause 2 of the Constitution.

(c) SENSE OF CONGRESS WITH RESPECT TO DEMARCATION

AGREEMENTS.— (1) RELATIONSHIP TO MULTILATERALIZATION OF ABM TREA- TY.—It is the sense of Congress that no ABM/TMD demarcation agreement will be considered for advice and consent to

ratification unless, consistent with the certification of the

President pursuant to condition (9) of the resolution of ratification of the CFE Flank Document, the President submits for

Senate advice and consent to ratification any agreement, arrangement, or understanding that would—

(A) add one or more countries as State Parties to the

ABM Treaty, or otherwise convert the ABM Treaty from a

bilateral treaty to a multilateral treaty; or

(B) change the geographic scope or coverage of the

ABM Treaty, or otherwise modify the meaning of the term

‘‘national territory’’ as used in Article VI and Article IX of

the ABM Treaty.

(2) PRESERVATION OF UNITED STATES THEATER BALLISTIC

MISSILE DEFENSE POTENTIAL.—It is the sense of Congress that

no ABM/TMD demarcation agreement that would reduce the

capabilities of United States theater missile defense systems,

or the numbers or deployment patterns of such systems, will

be approved for entry into force with respect to the United

States.

(d) REPORT ON COOPERATIVE PROJECTS WITH RUSSIA.—Not

later than January 1, 1999, and January 1, 2000, the President

shall submit to the Committees on International Relations, National Security, and Appropriations of the House of Representatives
Sec. 236 MISSILE DEFENSE PROGRAMS 250

and the Committees on Foreign Relations, Armed Services, and Appropriations of the Senate a report on cooperative projects with

Russia in the area of ballistic missile defense, including in the area

of early warning. Each such report shall include the following:

(1) COOPERATIVE PROJECTS.—A description of all cooperative projects conducted in the area of early warning and ballistic missile defense during the preceding fiscal year and the

fiscal year during which the report is submitted.

(2) FUNDING.—A description of the funding for such

projects during the preceding fiscal year and the year during

which the report is submitted and the proposed funding for

such projects for the next fiscal year.

(3) STATUS OF DIALOGUE OR DISCUSSIONS.—A description of

the status of any dialogue or discussions conducted during the

preceding fiscal year between the United States and Russia

aimed at exploring the potential for mutual accommodation of

outstanding issues between the two nations on matters relating to ballistic missile defense and the ABM Treaty, including

the possibility of developing a strategic relationship not based

on mutual nuclear threats.

(e) DEFINITIONS.—In this section:

(1) ABM/TMD DEMARCATION AGREEMENT.—The term

‘‘ABM/TMD demarcation agreement’’ means any agreement

that establishes a demarcation between theater ballistic missile defense systems and strategic antiballistic missile defense

systems for purposes of the ABM Treaty.

(2) ABM TREATY.—The term ‘‘ABM Treaty’’ means the

Treaty Between the United States of America and the Union

of Soviet Socialist Republics on the Limitation of Anti-Ballistic

Missile Systems, signed at Moscow on May 26, 1972 (23 UST

3435), and includes the Protocols to that Treaty, signed at

Moscow on July 3, 1974 (27 UST 1645).

f. Restructuring of Acquisition Strategy for Theater HighAltitude Area Defense (THAAD) System

(Section 236 of the Strom Thurmond National Defense Authorization Act for Fiscal

Year 1999 (Public Law 105–261, approved Oct. 17, 1998))

SEC. 236. RESTRUCTURING OF ACQUISITION STRATEGY FOR THEATER

HIGH-ALTITUDE AREA DEFENSE (THAAD) SYSTEM.

(a) CONTINUED INDEPENDENT REVIEW.—The Secretary of Defense shall take appropriate steps to assure continued independent

review, as the Secretary determines is needed, of the Theater HighAltitude Area Defense (THAAD) program.

(b) COST SHARING ARRANGEMENT.—(1) The Secretary of Defense shall contractually establish with the THAAD interceptor

prime contractor an appropriate arrangement for sharing between

the United States and that contractor the costs for flight test failures of the interceptor missile for the THAAD system beginning

with the flight test numbered 9.

(2) For purposes of paragraph (1), the term ‘‘THAAD interceptor prime contractor’’ means the firm that as of May 14, 1998,

is the prime contractor for the interceptor missile for the Theater

High-Altitude Area Defense system.
251 FY98 MISSILE DEFENSE PROGRAMS

(c) ENGINEERING AND MANUFACTURING DEVELOPMENT PHASE

FOR OTHER ELEMENTS OF THE THAAD SYSTEM.—The Secretary of

Defense shall proceed with the milestone approval process for the

Engineering and Manufacturing Development phase for the Battle

Management and Command, Control, and Communications (BM/

C3) element of the THAAD system and for the Ground Based Radar

(GBR) element for that system without regard to the stage of development of the interceptor missile for that system.

(d) PLAN FOR CONTINGENCY CAPABILITY.—(1) The Secretary of

Defense shall prepare a plan that would allow for deployment of

THAAD missiles and the other elements of the THAAD system referred to in subsection (c) in response to theater ballistic missile

threats that evolve before United States military forces are

equipped with the objective configuration of those missiles and elements.

(2) The Secretary shall submit a report on the plan to the congressional defense committees by December 15, 1998.

(e) LIMITATION ON ENTERING ENGINEERING AND MANUFACTURING DEVELOPMENT PHASE.—(1) The Secretary of Defense may

not approve the commencement of the Engineering and Manufacturing Development phase for the interceptor missile for the

THAAD system until there have been 3 successful tests of that

missile.

(2) If the Secretary determines, after a second successful test

of the interceptor missile of the THAAD system, that the THAAD

program has achieved a sufficient level of technical maturity, the

Secretary may waive the limitation specified in paragraph (1).

(3) If the Secretary grants a waiver under paragraph (2), the

Secretary shall, not later than 60 days after the date of the

issuance of the waiver, submit to the congressional defense committees a report describing the technical rationale for that action.

(4) For purposes of paragraph (1), a successful test of the interceptor missile of the THAAD system is a body-to-body intercept by

that missile of a ballistic missile target.

g. National Defense Authorization Act for Fiscal Year 1998

(Public Law 105–85, approved Nov. 18, 1997)

TITLE II—RESEARCH, DEVELOPMENT, TEST, AND

EVALUATION

* * * * * * *

Subtitle C—Ballistic Missile Defense Programs

SEC. 231. ø10 U.S.C. 2431 note¿ NATIONAL MISSILE DEFENSE PROGRAM.

(a) PROGRAM STRUCTURE.—To preserve the option of achieving

an initial operational capability in fiscal year 2003, the Secretary

of Defense shall ensure that the National Missile Defense Program

is structured and programmed for funding so as to support a test,

in fiscal year 1999, of an integrated national missile defense system that is representative of the national missile defense system

architecture that could achieve initial operational capability in fiscal year 2003.
FY98 MISSILE DEFENSE PROGRAMS 252

(b) ELEMENTS OF NMD SYSTEM.—The national missile defense

system architecture specified in subsection (a) shall consist of the

following elements:

(1) An interceptor system that optimizes defensive coverage of the continental United States, Alaska, and Hawaii

against limited ballistic missile attack (whether accidental, unauthorized, or deliberate).

(2) Ground-based radars.

(3) Space-based sensors.

(4) Battle management, command, control, and communications (BM/C3).

(c) PLAN FOR NMD SYSTEM DEVELOPMENT AND DEPLOYMENT.—

Not later than February 15, 1998, the Secretary of Defense shall

submit to the congressional defense committees a plan for the development and deployment of a national missile defense system

that could achieve initial operational capability in fiscal year 2003.

The plan shall include the following matters:

(1) A detailed description of the system architecture selected for development.

(2) A discussion of the justification for the selection of that

particular architecture.

(3) The Secretary’s estimate of the amounts of the appropriations that would be necessary for research, development,

test, evaluation, and for procurement for each of fiscal years

1999 through 2003 in order to achieve an initial operational capability of the system architecture in fiscal year 2003.

(4) For each activity necessary for the development and deployment of the national missile defense system architecture

selected by the Secretary that would at some point conflict

with the terms of the ABM Treaty, if any—

(A) a description of the activity;

(B) a description of the point at which the activity

would conflict with the terms of the ABM Treaty;

(C) the legal analysis justifying the Secretary’s determination regarding the point at which the activity would

conflict with the terms of the ABM Treaty; and

(D) an estimate of the time at which such point would

be reached in order to achieve a test of an integrated missile defense system in fiscal year 1999 and initial operational capability of such a system in fiscal year 2003.

(d) FUNDING FOR FISCAL YEAR 1998.—Of the funds authorized

to be appropriated under section 201(4), $978,091,000 shall be

available for the National Missile Defense Program.

(e) ABM TREATY DEFINED.—In this section, the term ‘‘ABM

Treaty’’ means the Treaty Between the United States of America

and the Union of Soviet Socialist Republics on the Limitation of

Anti-Ballistic Missile Systems, signed at Moscow on May 26, 1972,

and includes the Protocol to that treaty, signed at Moscow on July

3, 1974.

* * * * * * *

SEC. 233. ø10 U.S.C. 221 note¿ COOPERATIVE BALLISTIC MISSILE DEFENSE PROGRAM.

(a) REQUIREMENT FOR NEW PROGRAM ELEMENT.—The Secretary of Defense shall establish a program element for the Missile
253 FY98 MISSILE DEFENSE PROGRAMS

Defense Agency, to be referred to as the ‘‘Cooperative Ballistic Missile Defense Program’’, to support technical and analytical cooperative efforts between the United States and other nations that contribute to United States ballistic missile defense capabilities. Except as provided in subsection (b), all international cooperative ballistic missile defense programs of the Department of Defense shall

be budgeted and administered through that program element.

(b) AUTHORITY FOR EXCEPTIONS.—The Secretary of Defense

may exclude from the program element established pursuant to

subsection (a) any international cooperative ballistic missile defense program of the Department of Defense that after the date of

the enactment of this Act is designated by the Secretary of Defense

(pursuant to applicable Department of Defense acquisition regulations and policy) to be managed as a separate acquisition program.

(c) RELATIONSHIP TO OTHER PROGRAM ELEMENTS.—The program element established pursuant to subsection (a) is in addition

to the program elements for activities of the Missile Defense Agency required under section 251 of the National Defense Authorization Act for Fiscal Year 1996 (Public Law 104–106; 110 Stat. 233;

10 U.S.C. 221 note).

* * * * * * *

TITLE XXXI—DEPARTMENT OF ENERGY NATIONAL

SECURITY PROGRAMS

* * * * * * *

Subtitle C—Program Authorizations, Restrictions, and

Limitations

SEC. 3131. ø10 U.S.C. 2431 note¿ MEMORANDUM OF UNDERSTANDING

FOR USE OF NATIONAL LABORATORIES FOR BALLISTIC

MISSILE DEFENSE PROGRAMS.

(a) MEMORANDUM OF UNDERSTANDING.—The Secretary of Energy and the Secretary of Defense shall enter into a memorandum

of understanding for the purpose of improving and facilitating the

use by the Secretary of Defense of the expertise of the national laboratories for the ballistic missile defense programs of the Department of Defense.

(b) ASSISTANCE.—The memorandum of understanding shall

provide that the Secretary of Defense shall request such assistance

with respect to the ballistic missile defense programs of the Department of Defense as the Secretary of Defense and the Secretary

of Energy determine can be provided through the technical skills

and experience of the national laboratories, using such financial arrangements as the Secretaries determine are appropriate.

(c) ACTIVITIES.—The memorandum of understanding shall provide that the national laboratories shall carry out those activities

necessary to respond to requests for assistance from the Secretary

of Defense referred to in subsection (b). Such activities may include

the identification of technical modifications and test techniques, the

analysis of physics problems, the consolidation of range and test activities, and the analysis and simulation of theater missile defense

deployment problems.

(d) NATIONAL LABORATORIES.—For purposes of this section, the

national laboratories are—
FY97 BALLISTIC MISSILE DEFENSE ACT OF 1995 254

(1) the Lawrence Livermore National Laboratory, Livermore, California;

(2) the Los Alamos National Laboratory, Los Alamos, New

Mexico; and

(3) the Sandia National Laboratories, Albuquerque, New

Mexico.

h. National Defense Authorization Act for Fiscal Year 1997

(Public Law 104–201, approved Sept. 23, 1996)

TITLE II—RESEARCH, DEVELOPMENT, TEST, AND

EVALUATION

* * * * * * *

Subtitle C—Ballistic Missile Defense Programs

* * * * * * *

SEC. 246. CAPABILITY OF NATIONAL MISSILE DEFENSE SYSTEM.

The Secretary of Defense shall ensure that any National Missile Defense system deployed by the United States is capable of defeating the threat posed by the Taepo Dong II missile of North

Korea.

SEC. 247. ACTIONS TO LIMIT ADVERSE EFFECTS ON PRIVATE SECTOR

EMPLOYMENT OF ESTABLISHMENT OF NATIONAL MISSILE DEFENSE JOINT PROGRAM OFFICE.

The Secretary of Defense shall take such actions as are necessary in connection with the establishment of the National Missile

Defense Joint Program Office within the Ballistic Missile Defense

Organization to ensure that the establishment of that office does

not make it necessary for a Federal Government contractor to reduce significantly the number of persons employed by that contractor for supporting the national missile defense development

program at any particular location outside the National Capital Region (as defined in section 2674(f)(2) of title 10, United States

Code).

i. Ballistic Missile Defense Act of 1995

(Subtitle C of title II of the National Defense Authorization Act for Fiscal Year 1996

(Public Law 104–106, approved Feb. 10, 1996))

TITLE II—RESEARCH, DEVELOPMENT, TEST, AND

EVALUATION

* * * * * * *

Subtitle C—Ballistic Missile Defense Act of 1995

SEC. 231. ø10 U.S.C. 2431 note¿ SHORT TITLE.

This subtitle may be cited as the ‘‘Ballistic Missile Defense Act

of 1995’’.

SEC. 232. ø10 U.S.C. 2431 note¿ FINDINGS.

Congress makes the following findings:
255 FY96 BALLISTIC MISSILE DEFENSE ACT OF 1995

(1) The emerging threat that is posed to the national security interests of the United States by the proliferation of ballistic missiles is significant and growing, both in terms of numbers of missiles and in terms of the technical capabilities of

those missiles.

(2) The deployment of ballistic missile defenses is a necessary, but not sufficient, element of a broader strategy to discourage both the proliferation of weapons of mass destruction

and the proliferation of the means of their delivery and to defend against the consequences of such proliferation.

(3) The deployment of effective Theater Missile Defense

systems can deter potential adversaries of the United States

from escalating a conflict by threatening or attacking United

States forces or the forces or territory of coalition partners or

allies of the United States with ballistic missiles armed with

weapons of mass destruction to offset the operational and technical advantages of the United States and its coalition partners

and allies.

(4) United States intelligence officials have provided intelligence estimates to congressional committees that (A) the

trend in missile proliferation is toward longer range and more

sophisticated ballistic missiles, (B) North Korea may deploy an

intercontinental ballistic missile capable of reaching Alaska or

beyond within five years, and (C) although a new, indigenously

developed ballistic missile threat to the continental United

States is not foreseen within the next ten years, determined

countries can acquire intercontinental ballistic missiles in the

near future and with little warning by means other than indigenous development.

(5) The development and deployment by the United States

and its allies of effective defenses against ballistic missiles of

all ranges will reduce the incentives for countries to acquire

such missiles or to augment existing missile capabilities.

(6) The concept of mutual assured destruction (based upon

an offense-only form of deterrence), which is the major philosophical rationale underlying the ABM Treaty, is now questionable as a basis for stability in a multipolar world in which

the United States and the states of the former Soviet Union

are seeking to normalize relations and eliminate Cold War attitudes and arrangements.

(7) The development and deployment of a National Missile

Defense system against the threat of limited ballistic missile

attacks—

(A) would strengthen deterrence at the levels of forces

agreed to by the United States and Russia under the Strategic Arms Reduction Talks Treaty (START–I); and

(B) would further strengthen deterrence if reductions

below the levels permitted under START–I should be

agreed to and implemented in the future.

(8) The distinction made during the Cold War, based upon

the technology of the time, between strategic ballistic missiles

and nonstrategic ballistic missiles, which resulted in the distinction made in the ABM Treaty between strategic defense

and nonstrategic defense, has become obsolete because of technological advancement (including the development by North
FY96 BALLISTIC MISSILE DEFENSE ACT OF 1995 256

Korea of long-range Taepo-Dong I and Taepo-Dong II missiles)

and, therefore, that distinction in the ABM Treaty should be

reviewed.

SEC. 233. ø10 U.S.C. 2431 note¿ BALLISTIC MISSILE DEFENSE POLICY.

It is the policy of the United States—

(1) to deploy affordable and operationally effective theater

missile defenses to protect forward-deployed and expeditionary

elements of the Armed Forces of the United States and to complement the missile defense capabilities of forces of coalition

partners and of allies of the United States; and

(2) to seek a cooperative, negotiated transition to a regime

that does not feature an offense-only form of deterrence as the

basis for strategic stability.

SEC. 234. ø10 U.S.C. 2431 note¿ THEATER MISSILE DEFENSE ARCHITECTURE.

(a) ESTABLISHMENT OF CORE PROGRAM.—To implement the policy established in paragraph (1) of section 233, the Secretary of Defense shall restructure the core theater missile defense program to

consist of the following systems:

(1) The Patriot PAC–3 system.

(2) The Navy Area Defense system.

(3) The Theater High-Altitude Area Defense (THAAD) system.

(4) The Navy Theater Wide system.

(b) USE OF STREAMLINED ACQUISITION PROCEDURES.—The Secretary of Defense shall prescribe and use streamlined acquisition

policies and procedures to reduce the cost and increase the efficiency of developing and deploying the theater missile defense systems specified in subsection (a).

(c) INTEROPERABILITY AND SUPPORT OF CORE SYSTEMS.—To

maximize effectiveness and flexibility of the systems comprising

the core theater missile defense program, the Secretary of Defense

shall ensure that those systems are integrated and complementary

and are fully capable of exploiting external sensor and battle management support from systems such as—

(A) the Cooperative Engagement Capability (CEC) system

of the Navy;

(B) airborne sensors; and

(C) space-based sensors (including, in particular, the Space

and Missile Tracking System).

(d) FOLLOW-ON SYSTEMS.—(1) The Secretary of Defense shall

prepare an affordable development plan for theater missile defense

systems to be developed as follow-on systems to the core systems

specified in subsection (a). The Secretary shall make the selection

of a system for inclusion in the plan based on the capability of the

system to satisfy military requirements not met by the systems in

the core program and on the capability of the system to use prior

investments in technologies, infrastructure, and battle-management capabilities that are incorporated in, or associated with, the

systems in the core program.

(2) The Secretary may not proceed with the development of a

follow-on theater missile defense system beyond the Demonstration/Validation stage of development unless the Secretary designates that system as a part of the core program under this sec-
257 FY96 BALLISTIC MISSILE DEFENSE ACT OF 1995

tion and submits to the congressional defense committees notice of

that designation. The Secretary shall include with any such notification a report describing—

(A) the requirements for the system and the specific

threats that such system is designed to counter;

(B) how the system will relate to, support, and build upon

existing core systems;

(C) the planned acquisition strategy for the system; and

(D) a preliminary estimate of total program cost for that

system and the effect of development and acquisition of such

system on Department of Defense budget projections.

(e) PROGRAM ACCOUNTABILITY REPORT.—(1) As part of the annual report of the Ballistic Missile Defense Organization required

by section 224 of Public Law 101–189 (10 U.S.C. 2431 note), the

Secretary of Defense shall describe the technical milestones, the

schedule, and the cost of each phase of development and acquisition (together with total estimated program costs) for each core and

follow-on theater missile defense program.

(2) As part of such report, the Secretary shall describe, with respect to each program covered in the report, any variance in the

technical milestones, program schedule milestones, and costs for

the program compared with the information relating to that program in the report submitted in the previous year and in the report

submitted in the first year in which that program was covered.

SEC. 235. ø10 U.S.C. 2431 note¿ PROHIBITION ON USE OF FUNDS TO IMPLEMENT AN INTERNATIONAL AGREEMENT CONCERNING

THEATER MISSILE DEFENSE SYSTEMS.

(a) FINDINGS.—(1) Congress hereby reaffirms—

(A) the finding in section 234(a)(7) of the National Defense

Authorization Act for Fiscal Year 1994 (Public Law 103–160;

107 Stat. 1595; 10 U.S.C. 2431 note) that the ABM Treaty was

not intended to, and does not, apply to or limit research, development, testing, or deployment of missile defense systems, system upgrades, or system components that are designed to

counter modern theater ballistic missiles, regardless of the capabilities of such missiles, unless those systems, system upgrades, or system components are tested against or have demonstrated capabilities to counter modern strategic ballistic missiles; and

(B) the statement in section 232 of the National Defense

Authorization Act for Fiscal Year 1995 (Public Law 103–337;

108 Stat. 2700) that the United States shall not be bound by

any international agreement entered into by the President that

would substantively modify the ABM Treaty unless the agreement is entered into pursuant to the treaty making power of

the President under the Constitution.

(2) Congress also finds that the demarcation standard described in subsection (b)(1) for compliance of a missile defense system, system upgrade, or system component with the ABM Treaty

is based upon current technology.

(b) SENSE OF CONGRESS CONCERNING COMPLIANCE POLICY.—It

is the sense of Congress that—

(1) unless a missile defense system, system upgrade, or

system component (including one that exploits data from

space-based or other external sensors) is flight tested in an
FY96 BALLISTIC MISSILE DEFENSE ACT OF 1995 258

ABM-qualifying flight test (as defined in subsection (e)), that

system, system upgrade, or system component has not, for purposes of the ABM Treaty, been tested in an ABM mode nor

been given capabilities to counter strategic ballistic missiles

and, therefore, is not subject to any application, limitation, or

obligation under the ABM Treaty; and

(2) any international agreement that would limit the research, development, testing, or deployment of missile defense

systems, system upgrades, or system components that are designed to counter modern theater ballistic missiles in a manner

that would be more restrictive than the compliance criteria

specified in paragraph (1) should be entered into only pursuant

to the treaty making powers of the President under the Constitution.

(c) PROHIBITION ON FUNDING.—Funds appropriated or otherwise made available to the Department of Defense for fiscal year

1996 may not be obligated or expended to implement an agreement, or any understanding with respect to interpretation of the

ABM Treaty, between the United States and any of the independent states of the former Soviet Union entered into after January 1, 1995, that—

(1) would establish a demarcation between theater missile

defense systems and anti-ballistic missile systems for purposes

of the ABM Treaty; or

(2) would restrict the performance, operation, or deployment of United States theater missile defense systems.

(d) EXCEPTIONS.—Subsection (c) does not apply—

(1) to the extent provided by law in an Act enacted after

this Act;

(2) to expenditures to implement that portion of any such

agreement or understanding that implements the policy set

forth in subsection (b)(1); or

(3) to expenditures to implement any such agreement or

understanding that is approved as a treaty or by law.

(e) ABM-QUALIFYING FLIGHT TEST DEFINED.—For purposes of

this section, an ABM-qualifying flight test is a flight test against

a ballistic missile which, in that flight test, exceeds (1) a range of

3,500 kilometers, or (2) a velocity of 5 kilometers per second.

SEC. 236. ø10 U.S.C. 2431 note¿ BALLISTIC MISSILE DEFENSE COOPERATION WITH ALLIES.

It is in the interest of the United States to develop its own

missile defense capabilities in a manner that will permit the

United States to complement the missile defense capabilities developed and deployed by its allies and possible coalition partners.

Therefore, the Congress urges the President—

(1) to pursue high-level discussions with allies of the

United States and selected other states on the means and

methods by which the parties on a bilateral basis can cooperate

in the development, deployment, and operation of ballistic missile defenses;

(2) to take the initiative within the North Atlantic Treaty

Organization to develop consensus in the Alliance for a timely

deployment of effective ballistic missile defenses by the Alliance; and
259 FY95 MISSILE DEFENSE PROGRAMS

(3) in the interim, to seek agreement with allies of the

United States and selected other states on steps the parties

should take, consistent with their national interests, to reduce

the risks posed by the threat of limited ballistic missile attacks, such steps to include—

(A) the sharing of early warning information derived

from sensors deployed by the United States and other

states;

(B) the exchange on a reciprocal basis of technical data

and technology to support both joint development programs and the sale and purchase of missile defense systems and components; and

(C) operational level planning to exploit current missile defense capabilities and to help define future requirements.

SEC. 237. ø10 U.S.C. 2431 note¿ ABM TREATY DEFINED.

For purposes of this subtitle, the term ‘‘ABM Treaty’’ means

the Treaty Between the United States of America and the Union

of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems, and signed at Moscow on May 26, 1972, and includes

the Protocols to that Treaty, signed at Moscow on July 3, 1974.

SEC. 238. ø10 U.S.C. 2431 note¿ REPEAL OF MISSILE DEFENSE ACT OF

1991.

The Missile Defense Act of 1991 (10 U.S.C. 2431 note) is repealed.

j. National Defense Authorization Act for Fiscal Year 1995

(Public Law 103–337, approved Oct. 5, 1994)

TITLE II—RESEARCH, DEVELOPMENT, TEST, AND

EVALUATION

* * * * * * *

Subtitle C—Missile Defense Programs

* * * * * * *

SEC. 232. MODIFICATIONS TO ANTI-BALLISTIC MISSILE TREATY TO BE

ENTERED INTO ONLY THROUGH TREATY MAKING POWER.

(a) REQUIREMENT FOR USE OF TREATY MAKING POWER.—The

United States shall not be bound by any international agreement

entered into by the President that would substantively modify the

ABM Treaty unless the agreement is entered pursuant to the treaty making power of the President under the Constitution.

(b) ABM TREATY DEFINED.—In this section, the term ‘‘ABM

Treaty’’ means the Treaty Between the United States of America

and the Union of Soviet Socialist Republics on the Limitation of

Anti-Ballistic Missile Systems, signed in Moscow on May 26, 1972,

with related protocol, signed in Moscow on July 3, 1974.

* * * * * * *

SEC. 234. LIMITATION ON FLIGHT TESTS OF CERTAIN MISSILES.

(a) LIMITATION.—The Secretary of Defense may not conduct the

launch of a target ballistic missile as part of the theater missile de-
FY94 MISSILE DEFENSE PROGRAMS 260

fense extended range test program if an anticipated result of the

launch of that target missile under that test program would be release of debris in a land area of the United States outside a designated Department of Defense test range or an extension thereof

in force as of July 1, 1994.

(b) DEFINITION OF DEBRIS.—For purposes of subsection (a), the

term ‘‘debris’’ does not include particulate matter that is regulated

for considerations of air quality.

(c) CERTAIN TESTING UNAFFECTED.—Nothing in this section

shall be construed as prohibiting or limiting testing of cruise missiles, unmanned aerial vehicles (UAVs), or precision-guided munitions.

(d) EXPIRATION OF LIMITATION.—The limitation in subsection

(a) shall expire on the later of—

(1) June 30, 1995; or

(2) the end of the 30-day period beginning on the date of

the publication by the Secretary of Defense of the Final Environmental Impact Statement on the Theater Missile Defense

Extended Test Range.

k. National Defense Authorization Act for Fiscal Year 1994

(Public Law 103–160, approved Nov. 30, 1993)

TITLE II—RESEARCH, DEVELOPMENT, TEST, AND

EVALUATION

* * * * * * *

Subtitle C—Missile Defense Programs

* * * * * * *

SEC. 237. THEATER AND LIMITED DEFENSE SYSTEM TESTING.

(a) TESTING OF THEATER MISSILE DEFENSE INTERCEPTORS.—(1)

The Secretary of Defense may not approve a theater missile defense interceptor program proceeding beyond the low-rate initial

production acquisition stage until the Secretary certifies to the congressional defense committees that such program has successfully

completed initial operational test and evaluation.

(2) In order to be certified under paragraph (1) as having been

successfully completed, the initial operational test and evaluation

conducted with respect to an interceptors program must have included flight tests—

(A) that were conducted with multiple interceptors and

multiple targets in the presence of realistic countermeasures;

and

(B) the results of which demonstrate the achievement by

the interceptors of the baseline performance thresholds.

(3) For purposes of this subsection, the baseline performance

thresholds with respect to a program are the weapons systems performance thresholds specified in the baseline description for the

system established (pursuant to section 2435(a)(1) of title 10,

United States Code) before the program entered the engineering

and manufacturing development stage.

(4) The number of flight tests described in paragraph (2) that

are required in order to make the certification under paragraph (1)
261 FY94 MISSILE DEFENSE PROGRAMS

shall be a number determined by the Secretary of Defense to be

sufficient for the purposes of this section.

(5) The Secretary may augment live-fire testing to demonstrate

weapons system performance goals for purposes of the certification

under paragraph (1) through the use of modeling and simulation

that is validated by ground and flight testing.

(b) ADVANCE REVIEW AND APPROVAL OF PROPOSED DEVELOPMENTAL TESTS OF LIMITED DEFENSE SYSTEM PROGRAM PROJECTS.—

A developmental test may not be conducted under the Limited Defense System program element of the Ballistic Missile Defense Program until the Secretary of Defense reviews and approves (or approves with changes) the test plan for such developmental test.

(c) INDEPENDENT MONITORING OF TESTS.—(1) The Secretary

shall provide for monitoring of the implementation of each test

plan referred to in subsection (b) by a group composed of persons

who—

(A) by reason of education, training, or experience are

qualified to monitor the testing covered by the plan; and

(B) are not assigned or detailed to, or otherwise performing

duties of, the Ballistic Missile Defense Organization and are

otherwise independent of such organization.

(2) The monitoring group shall submit to the Secretary its

analysis of, and conclusions regarding, the conduct and results of

each test monitored by the group.

* * * * * * *

SEC. 243. ø10 U.S.C. 2431 note¿ TRANSFER OF FOLLOW-ON TECHNOLOGY PROGRAMS.

(a) MANAGEMENT RESPONSIBILITY.—Except as provided in subsection (b), the Secretary of Defense shall provide that management and budget responsibility for research and development of

any program, project, or activity to develop far-term follow-on technology relating to ballistic missile defense shall be provided

through the Defense Advanced Research Projects Agency or the appropriate military department.

(b) WAIVER AUTHORITY.—The Secretary may waive the provisions of subsection (a) in the case of a particular program, project,

or activity if the Secretary certifies to the congressional defense

committees that it is in the national security interest of the United

States to provide management and budget responsibility for that

program, project, or activity through the Missile Defense Agency.

(c) REPORT REQUIRED.—As a part of the report required by section 231(e), the Secretary shall submit to the congressional defense

committees a report identifying—

(1) each program, project, and activity with respect to

which the Secretary has transferred management and budget

responsibility from the Missile Defense Agency in accordance

with subsection (a);

(2) the agency or military department to which each such

transfer was made; and

(3) the date on which each such transfer was made.

(d) DEFINITION.—For the purposes of this section, the term

‘‘far-term follow-on technology’’ means a technology that is not incorporated into a ballistic missile defense architecture and is not
Sec. 231 MISSILE DEFENSE PROGRAMS 262

likely to be incorporated within 15 years into a weapon system for

ballistic missile defense.

(e) CONFORMING AMENDMENT.—øOmitted-Amendment¿

l. Theater Missile Defense Initiative

(Section 231 of the National Defense Authorization Act for Fiscal Year 1993 (Public

Law 102–484, approved Oct. 23, 1992))

SEC. 231. [10 U.S.C. 2431 note] THEATER MISSILE DEFENSE INITIATIVE.

(a) ESTABLISHMENT OF THEATER MISSILE DEFENSE INITIATIVE.—The Secretary of Defense shall establish a Theater Missile

Defense Initiative office within the Department of Defense. All theater and tactical missile defense activities of the Department of Defense (including all programs, projects, and activities formerly associated with the Theater Missile Defense program element of the

Strategic Defense Initiative) shall be carried out under the Theater

Missile Defense Initiative.

(b) FUNDING FOR FISCAL YEAR 1993.—Of the amounts appropriated pursuant to section 201 or otherwise made available to the

Department of Defense for research, development, test, and evaluation for fiscal year 1993, not more than $935,000,000 may be obligated for activities of the Theater Missile Defense Initiative, of

which not less than $90,000,000 shall be made available for exploration of promising concepts for naval theater missile defense.

(c) REPORT.—When the President’s budget for fiscal year 1994

is submitted to Congress pursuant to section 1105 of title 31,

United States Code, the Secretary of Defense shall submit to the

congressional defense committees a report—

(1) setting forth the proposed allocation by the Secretary

of funds for the Theater Missile Defense Initiative for fiscal

year 1994, shown for each program, project, and activity;

(2) describing an updated master plan for the Theater Missile Defense Initiative that includes (A) a detailed consideration of plans for theater and tactical missile defense doctrine,

training, tactics, and force structure, and (B) a detailed acquisition strategy which includes a consideration of acquisition

and life-cycle costs through the year 2005 for the programs,

projects, and activities associated with the Theater Missile Defense Initiative;

(3) assessing the possible near-term contribution and costeffectiveness for theater missile defense of exoatmospheric capabilities, to include at a minimum a consideration of—

(A) the use of the Navy’s Standard missile combined

with a kick stage rocket motor and lightweight

exoatmospheric projectile (LEAP); and

(B) the use of the Patriot missile combined with a kick

stage rocket motor and LEAP.

(d) EFFECTIVE DATE.—The provisions of subsections (a), (b),

and (c) shall be implemented not later than 90 days after the date

of the enactment of this Act [Oct. 23, 1992].
263 FY91 STRATEGIC DEFENSE INITIATIVE

m. National Defense Authorization Act for Fiscal Year 1991

(Public Law 101–510, approved Nov. 5, 1990)

TITLE II—RESEARCH, DEVELOPMENT, TEST, AND

EVALUATION

* * * * * * *

PART C—STRATEGIC DEFENSE INITIATIVE

SEC. 221. [10 U.S.C. 2431 note] STRATEGIC DEFENSE INITIATIVE PROGRAM STRUCTURE AND LIMITATIONS ON SPENDING

(a) PROGRAM ELEMENTS.—(1) The following program elements

shall be the exclusive program elements for the Strategic Defense

Initiative:

(A) Phase I Defenses.

(B) Limited Protection Systems.

(C) Theater and ATBM Defenses.

(D) Follow-On Systems.

(E) Research and Support Activities.

(2) The program elements in paragraph (1) shall be the only

program elements used in the program and budget information

concerning the Strategic Defense Initiative submitted to Congress

by the Secretary of Defense in support of the budget submitted to

Congress by the President under section 1105 of title 31, United

States Code, for any fiscal year after fiscal year 1991.

(b) RESEARCH, DEVELOPMENT, TEST, AND EVALUATION OBJEC- TIVES.— (1) PHASE I DEFENSES.—The Phase I Defenses program element shall include programs, projects, and activities which

have as a primary objective the development of systems, components, and architectures for a strategic defense system capable of providing low to moderate defensive capabilities against

a large-scale ballistic missile attack against the United States.

Such activities may include those necessary to develop systems, components, and architectures capable of providing an

early deployment option against limited attacks, including accidental, unauthorized, or deliberate launch of a small number

of ballistic missiles.

(2) LIMITED PROTECTION SYSTEMS.—The Limited Protection

Systems program element shall include programs, projects, and

activities which have as a primary objective the development

of systems and components which, if deployed as a limited defense, would not be in violation of the 1972 ABM Treaty. For

purposes of planning, evaluation, design, and effectiveness

studies, such programs, projects, and activities may take into

consideration both the current numerical limitations of the

1972 ABM Treaty and modest changes to those numerical limitations.

(3) THEATER AND ATBM DEFENSES.—The Theater and

ATBM Defenses program element shall include programs,

projects, and activities which have as a primary objective—

(A) the development of deployable and rapidly

relocatable anti-tactical ballistic missile (ATBM) defenses

for forward deployed and expeditionary United States

armed forces, and
FY88 STRATEGIC DEFENSE INITIATIVE 264

(B) cooperation with friendly and allied nations in the

development of theater defenses against tactical ballistic

missiles.

(4) FOLLOW-ON SYSTEMS.—The Follow-On Systems program element shall include programs, projects, and activities

which have as a primary objective the development of technologies capable of supporting systems, components, and architectures that could produce highly effective defenses for deployment after the beginning of the twenty-first century.

(5) RESEARCH AND SUPPORT ACTIVITIES.—The Research and

Support Activities program element shall include programs,

projects, and activities which have as a primary objective—

(A) the provision of basic research and technical, engineering, and managerial support to the programs, projects,

and activities within the program elements in paragraphs

(1) through (4);

(B) innovative science and technology projects;

(C) the provision of test and evaluation services; and

(D) program management.

(c) FUNDING LIMITATIONS.—[Omitted]

(d) DEFINITION.—In this section, the term ‘‘1972 ABM Treaty’’

means the Treaty Between the United States of America and the

Union of Soviet Socialist Republics on the Limitations of Anti-Ballistic Missiles, signed at Moscow on May 26, 1972.

n. National Defense Authorization Act for Fiscal Years 1988

and 1989

(Public Law 100–180; approved Dec. 4, 1987)

TITLE II—RESEARCH, DEVELOPMENT, TEST, AND

EVALUATION

* * * * * * *

PART C—STRATEGIC DEFENSE INITIATIVE

Subpart 1—SDI Funding and Program Limitations and

Requirements

* * * * * * *

SEC. 222. [10 U.S.C. 2431 note] PROHIBITION OF CERTAIN CONTRACTS

WITH FOREIGN ENTITIES

(a) SDI CONTRACTS WITH FOREIGN ENTITIES.—Funds appropriated to or for the use of the Department of Defense may not be

used for the purpose of entering into or carrying out any contract

with a foreign government or a foreign firm if the contract provides

for the conduct of research, development, test, or evaluation in connection with the Strategic Defense Initiative program.

(b) TEMPORARY SUSPENSION OF PROHIBITION UPON CERTIFI- CATION OF THE SECRETARY OF DEFENSE.—The prohibition in subsection (a) shall not apply to a contract in any fiscal year if the Secretary of Defense certifies to Congress in writing at any time during such fiscal year that the research, development, testing, or

evaluation to be performed under such contract cannot be competently performed by a United States firm at a price equal to or
265 FY88 STRATEGIC DEFENSE INITIATIVE

less than the price at which the research, development, testing, or

evaluation would be performed by a foreign firm.

(c) EXCEPTIONS FOR CERTAIN CONTRACTS.—The prohibition in

subsection (a) shall not apply to a contract awarded to a foreign

government or foreign firm if—

(1) the contract is to be performed within the United

States;

(2) the contract is exclusively for research, development,

test, or evaluation in connection with antitactical ballistic missile systems; or

(3) that foreign government or foreign firm agrees to share

a substantial portion of the total contract cost.

(d) DEFINITIONS.—In this section:

(1) The term ‘‘foreign firm’’ means a business entity owned

or controlled by one or more foreign nationals or a business entity in which more than 50 percent of the stock is owned or

controlled by one or more foreign nationals.

(2) The term ‘‘United States firm’’ means a business entity

other than a foreign firm.

(e) TRANSITION.—The prohibition in subsection (a) shall not

apply to a contract entered into before the date of the enactment

of this Act.

SEC. 223. [10 U.S.C. 2431 note] LIMITATION ON TRANSFER OF CERTAIN

MILITARY TECHNOLOGY TO INDEPENDENT STATES OR

THE FORMER SOVIET UNION.

Military technology developed with funds appropriated or otherwise made available for the Ballistic Missile Defense Program

may not be transferred (or made available for transfer) to Russia

or any other independent State of the former Soviet Union by the

United States (or with the consent of the United States) unless the

President determines and certifies to the Congress at least 15 days

prior to any such transfer, that such transfer is in the national interest of the United States and is to be made for the purpose of

maintaining peace.

SEC. 224. [10 U.S.C. 2431 note] SDI ARCHITECTURE TO REQUIRE HUMAN

DECISION MAKING

No agency of the Federal Government may plan for, fund, or

otherwise support the development of command and control systems for strategic defense in the boost or post-boost phase against

ballistic missile threats that would permit such strategic defenses

to initiate the directing of damaging or lethal fire except by affirmative human decision at an appropriate level of authority.

* * * * * * *

SEC. 227. [10 U.S.C. 2431 note] ESTABLISHMENT OF A FEDERALLY

FUNDED RESEARCH AND DEVELOPMENT CENTER TO SUPPORT THE STRATEGIC DEFENSE INITIATIVE PROGRAM

(a) FINDINGS.—The Congress makes the following findings:

(1) The Department of Defense requires technical support

for issues of system integration related to the Strategic Defense Initiative program.

(2) The Strategic Defense Initiative Organization, after assessing alternative types of organizations for the provision of

such technical support to the Strategic Defense Initiative program (including Government organizations, profit and non-
FY88 STRATEGIC DEFENSE INITIATIVE 266

profit entities (including existing federally funded research and

development centers), a new division within an existing federally funded research and development center, a new federally

funded research and development center, colleges and universities, and private nonprofit laboratories), determined that a

new federally funded research and development center (hereinafter in this section referred to as an ‘‘FFRDC’’) would be the

type of organization most appropriate for the provision of such

technical support to the Strategic Defense Initiative program.

(3) In providing such technical support to the SDI program, the new FFRDC should provide critical evaluation and

rigorous and objective analysis of technologies, systems, and

architectures that are candidates for use in the SDI program.

(4) Competitive selection of a contractor to establish and

operate such an FFRDC to support the Strategic Defense Initiative program is one way to enhance the prospects for independent and objective evaluation of system integration issues

within the Strategic Defense Initiative program.

(b) AUTHORITY TO CONTRACT FOR FFRDC.—The Secretary of

Defense, using funds appropriated to the Department of Defense

for the Strategic Defense Initiative program, may enter into a contract to provide for the establishment and operation of a federally

funded research and development center to provide independent

and objective technical support to the Strategic Defense Initiative

program. Such a contract may not be awarded before October 1,

1989.

(c) CONTRACT AWARD REQUIREMENTS.—(1) A contract under

subsection (b) shall be awarded using competitive procedures which

emphasize cost considerations.

(2) The Secretary of Defense shall solicit proposals for such

contract from existing federally funded research and development

centers, from universities, from commercial entities, and from appropriate new organizations and shall make maximum efforts to

obtain more than one proposal for such contract.

(3) The Secretary shall submit the three best contract proposals (as determined by the Secretary), together with a copy of the

proposed sponsoring agreement for the new FFRDC, for review by

three persons designated by the Defense Science Board from a list

of six or more persons submitted by the National Academy of

Sciences. The persons performing the review—

(A) shall evaluate the extent to which each proposal and

the proposed sponsoring agreement would foster competent

and objective technical advice for the Strategic Defense Initiative Program; and

(B) shall report their evaluation of each such proposal and

of the proposed sponsoring agreement to the Secretary.

(4) Before awarding a contract under subsection (b), and not

sooner than March 30, 1989, the Secretary shall submit to

Congress—

(A) a copy of the proposed final contract; and

(B) a copy of the proposed final sponsoring agreement relating to the operation of the new FFRDC.

(5)(A) The Secretary shall then withhold the award of such

contract and the approval of such sponsoring agreement for a period of at least 30 days of continuous session of Congress beginning
267 FY88 STRATEGIC DEFENSE INITIATIVE

on the day after the date on which Congress receives the copies referred to in paragraph (4).

(B) For purposes of subparagraph (a), the continuity of a session of Congress is broken only by an adjournment sine die at the

end of the second regular session of that Congress. In computing

the 30-day period for such purposes, days on which either House

of Congress is not in session because of an adjournment of more

than three days to a day certain shall be excluded.

(d) REQUIREMENTS APPLICABLE TO FFRDC.—The Secretary of

Defense shall—

(1) require that the contract referred to in subsection (b)

include a provision stating that no officer or employee of the

Department of Defense shall have the authority to veto the employment of any person selected to serve as an officer or employee of the new FFRDC;

(2) require that at least 5 percent of the total amount of

funds available for the new FFRDC shall be set aside for independent research to be performed by the staff of the new

FFRDC under the direction of the chief executive officer of the

new FFRDC;

(3) impose a limitation on the compensation payable to

each senior executive of the new FFRDC for services performed

for the new FFRDC so that such compensation shall be comparable to the amount of compensation payable to senior executives of comparable federally funded research and development centers for similar services;

(4) require that the new FFRDC publicly disclose the salary of its chief executive officer;

(5) prohibit current or former members of the Strategic Defense Initiative Advisory Committee from serving as members

of the Board of Trustees of the FFRDC if such members constitute 10 or more percent of the Board of Trustees or from

serving as officers of the new FFRDC;

(6) require that the contract referred to in subsection (b)

include a provision prohibiting members of such Board of

Trustees from serving as officers of the new FFRDC, except

that a Board member may serve as the President of the new

FFRDC if the Board is comprised of 10 or more members;

(7) require that the contract referred to in subsection (b)

include a provision prohibiting the new FFRDC from employing any person who, as a Federal employee or member of the

Armed Forces, served in the Strategic Defense Initiative Organization within two years before the date on which such person

is to be employed by the new FFRDC; and

(8) require that any contract referred to in subsection (b)

require that the Board of Trustees of the new FFRDC be comprised of individuals who represent a reasonable cross-section

of views on the engineering and scientific issues associated

with the Strategic Defense Initiative Program.

(e) FUNDING.—The Secretary of Defense shall provide that all

funds for the new FFRDC within the Department of Defense budget for any fiscal year shall be separately identified and set forth in

the budget presentation materials submitted to Congress for that

fiscal year.
FY88 STRATEGIC DEFENSE INITIATIVE 268

(f) SUNSET PROVISION.—No Federal funds may be provided to

the new FFRDC after the end of the five-year period beginning on

the date of the award of the first contract awarded to the FFRDC

under this section.
269

2. PROVISIONS RELATED TO CHEMICAL AND

BIOLOGICAL WEAPONS

a. Management of Program for Destruction of Existing

Stockpile of Lethal Chemical Agents and Munitions

(Section 141 of the Bob Stump National Defense Authorization Act for Fiscal Year

2003 (Public Law 107–314, approved Dec. 2, 2002))

SEC. 141. ø50 U.S.C. 1521a¿ DESTRUCTION OF EXISTING STOCKPILE OF

LETHAL CHEMICAL AGENTS AND MUNITIONS.

(a) PROGRAM MANAGEMENT.—The Secretary of Defense shall

ensure that the program for destruction of the United States stockpile of lethal chemical agents and munitions is managed as a major

defense acquisition program (as defined in section 2430 of title 10,

United States Code) in accordance with the essential elements of

such programs as may be determined by the Secretary.

(b) REQUIREMENT FOR UNDER SECRETARY OF DEFENSE (COMPTROLLER) ANNUAL CERTIFICATION.—Beginning with respect to the

budget request for fiscal year 2004, the Under Secretary of Defense

(Comptroller) shall submit to the congressional defense committees

on an annual basis a certification that the budget request for the

chemical agents and munitions destruction program has been submitted in accordance with the requirements of section 1412 of the

Department of Defense Authorization Act, 1986 (50 U.S.C. 1521).

b. Alternative Technologies for Destruction of Assembled

Chemical Weapons

(Section 142 of the Strom Thurmond National Defense Authorization Act for Fiscal

Year 1999 (Public Law 105–261, approved Oct. 17, 1998))

SEC. 142. ø50 U.S.C. 1521 note¿ ALTERNATIVE TECHNOLOGIES FOR DESTRUCTION OF ASSEMBLED CHEMICAL WEAPONS.

(a) PROGRAM MANAGEMENT.—The program manager for the Assembled Chemical Weapons Assessment shall continue to manage

the development and testing (including demonstration and pilotscale testing) of technologies for the destruction of lethal chemical

munitions that are potential or demonstrated alternatives to the

baseline incineration program. In performing such management,

the program manager shall act independently of the program manager for Chemical Demilitarization and shall report to the Under

Secretary of Defense for Acquisition and Technology.

(b) POST-DEMONSTRATION ACTIVITIES.—(1) The program manager for the Assembled Chemical Weapons Assessment may carry

out those activities necessary to ensure that an alternative technology for the destruction of lethal chemical munitions can be implemented immediately after—
Sec. 142 CHEMICAL AND BIOLOGICAL WEAPONS 270

(A) the technology has been demonstrated to be successful;

and

(B) the Under Secretary of Defense for Acquisition and

Technology has submitted a report on the demonstration to

Congress that includes a decision to proceed with the pilotscale facility phase for an alternative technology.

(2) To prepare for the immediate implementation of any such

technology, the program manager may, during fiscal years 1998

and 1999, take the following actions:

(A) Establish program requirements.

(B) Prepare procurement documentation.

(C) Develop environmental documentation.

(D) Identify and prepare to meet public outreach and public participation requirements.

(E) Prepare to award a contract for the design, construction, and operation of a pilot facility for the technology to the

provider team for the technology not later than December 30,

1999.

(c) INDEPENDENT EVALUATION.—The Under Secretary of Defense for Acquisition and Technology shall provide for an independent evaluation of the cost and schedule of the Assembled

Chemical Weapons Assessment, which shall be performed and submitted to the Under Secretary not later than September 30, 1999.

The evaluation shall be performed by a nongovernmental organization qualified to make such an evaluation.

(d) PILOT FACILITIES CONTRACTS.—(1) The Under Secretary of

Defense for Acquisition and Technology shall determine whether to

proceed with pilot-scale testing of a technology referred to in paragraph (2) in time to award a contract for the design, construction,

and operation of a pilot facility for the technology to the provider

team for the technology not later than December 30, 1999. If the

Under Secretary determines to proceed with such testing, the

Under Secretary shall (exercising the acquisition authority of the

Secretary of Defense) so award a contract not later than such date.

(2) Paragraph (1) applies to an alternative technology for the

destruction of lethal chemical munitions, other than incineration,

that the Under Secretary—

(A) certifies in writing to Congress is—

(i) as safe and cost effective for disposing of assembled

chemical munitions as is incineration of such munitions;

and

(ii) is capable of completing the destruction of such

munitions on or before the later of the date by which the

destruction of the munitions would be completed if incineration were used or the deadline date for completing the destruction of the munitions under the Chemical Weapons

Convention; and

(B) determines as satisfying the Federal and State environmental and safety laws that are applicable to the use of the

technology and to the design, construction, and operation of a

pilot facility for use of the technology.

(3) The Under Secretary shall consult with the National Research Council in making determinations and certifications for the

purpose of paragraph (2).
271 Sec. 142 CHEMICAL AND BIOLOGICAL WEAPONS

1Section 8065 of the Department of Defense Appropriations Act, 1997, referred to in subsection (g) above, made available $40,000,000 to the Under Secretary of Defense for Acquisition

and Technology to conduct a pilot program to identify and demonstrate not less than two alternatives to the baseline incineration process for the demilitarization of assembled chemical munitions.

(4) In this subsection, the term ‘‘Chemical Weapons Convention’’ means the Convention on the Prohibition of Development,

Production, Stockpiling and Use of Chemical Weapons and on their

Destruction, opened for signature on January 13, 1993, together

with related annexes and associated documents.

(e) PLAN FOR PILOT PROGRAM.—If the Secretary of Defense proceeds with a pilot program under section 152(f) of the National Defense Authorization Act for Fiscal Year 1996 (Public Law 104–106;

110 Stat. 214; 50 U.S.C. 1521 note), the Secretary shall prepare a

plan for the pilot program and shall submit to Congress a report

on such plan (including information on the cost of, and schedule

for, implementing the pilot program).

(f) FUNDING.—(1) Of the amount authorized to be appropriated

under section 107, funds shall be available for the program manager for the Assembled Chemical Weapons Assessment for the following:

(A) Demonstrations of alternative technologies under the

Assembled Chemical Weapons Assessment.

(B) Planning and preparation to proceed from demonstration of an alternative technology immediately into the development of a pilot-scale facility for the technology, including planning and preparation for—

(i) continued development of the technology leading to

deployment of the technology for use;

(ii) satisfaction of requirements for environmental permits;

(iii) demonstration, testing, and evaluation;

(iv) initiation of actions to design a pilot plant;

(v) provision of support at the field office or depot level

for deployment of the technology for use; and

(vi) educational outreach to the public to engender

support for the deployment.

(C) The independent evaluation of cost and schedule required under subsection (c).

(2) Funds authorized to be appropriated under section 107(1)

are authorized to be used for awarding contracts in accordance

with subsection (d) and for taking any other action authorized in

this section.

(g) 1ASSEMBLED CHEMICAL WEAPONS ASSESSMENT DEFINED.—

In this section, the term ‘‘Assembled Chemical Weapons Assessment’’ means the pilot program carried out under section 8065 of

the Department of Defense Appropriations Act, 1997 (section 101(b)

of Public Law 104–208; 110 Stat. 3009–101; 50 U.S.C. 1521 note).
Sec. 152 CHEMICAL AND BIOLOGICAL WEAPONS 272

c. Destruction of Existing Stockpile of Lethal Chemical

Agents and Munitions-Protection of Environment

(Section 152 of the National Defense Authorization Act for Fiscal Year 1996 (Public

Law 104–106, approved Feb. 10, 1996))

SEC. 152. ø50 U.S.C. 1521 note¿ DESTRUCTION OF EXISTING STOCKPILE

OF LETHAL CHEMICAL AGENTS AND MUNITIONS.

(a) IN GENERAL.—The Secretary of Defense shall proceed with

the program for destruction of the chemical munitions stockpile of

the Department of Defense while maintaining the maximum protection of the environment, the general public, and the personnel

involved in the actual destruction of the munitions. In carrying out

such program, the Secretary shall use technologies and procedures

that will minimize the risk to the public at each site.

(b) INITIATION OF DEMILITARIZATION OPERATIONS.—The Secretary of Defense may not initiate destruction of the chemical munitions stockpile stored at a site until the following support measures are in place:

(1) Support measures that are required by Department of

Defense and Army chemical surety and security program regulations.

(2) Support measures that are required by the general and

site chemical munitions demilitarization plans specific to that

installation.

(3) Support measures that are required by the permits required by the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.)

and the Clean Air Act (42 U.S.C. 7401 et seq.) for chemical

munitions demilitarization operations at that installation, as

approved by the appropriate State regulatory agencies.

(c) ASSESSMENT OF ALTERNATIVES.—(1) The Secretary of Defense shall conduct an assessment of the current chemical demilitarization program and of measures that could be taken to reduce

significantly the total cost of the program, while ensuring maximum protection of the general public, the personnel involved in

the demilitarization program, and the environment. The measures

considered shall be limited to those that would minimize the risk

to the public. The assessment shall be conducted without regard to

any limitation that would otherwise apply to the conduct of such

an assessment under any provision of law.

(2) The assessment shall be conducted in coordination with the

National Research Council.

(3) Based on the results of the assessment, the Secretary shall

develop appropriate recommendations for revision of the chemical

demilitarization program.

(4) Not later than March 1, 1996, the Secretary of Defense

shall submit to the congressional defense committees an interim report assessing the current status of the chemical stockpile demilitarization program, including the results of the Army’s analysis of

the physical and chemical integrity of the stockpile and implications for the chemical demilitarization program, and providing recommendations for revisions to that program that have been included in the budget request of the Department of Defense for fiscal year 1997. The Secretary shall submit to the congressional defense committees with the submission of the budget request of the
273 Sec. 152 CHEMICAL AND BIOLOGICAL WEAPONS

Department of Defense for fiscal year 1998 a final report on the assessment conducted in accordance with paragraph (1) and recommendations for revision to the program, including an assessment

of alternative demilitarization technologies and processes to the

baseline incineration process and potential reconfiguration of the

stockpile that should be incorporated in the program.

(d) ASSISTANCE FOR CHEMICAL WEAPONS STOCKPILE COMMUNITIES AFFECTED BY BASE CLOSURE.—(1) The Secretary of Defense

shall review and evaluate issues associated with closure and reutilization of Department of Defense facilities co-located with continuing chemical stockpile and chemical demilitarization operations.

(2) The review shall include the following:

(A) An analysis of the economic impacts on these communities and the unique reuse problems facing local communities

associated with ongoing chemical weapons programs.

(B) Recommendations of the Secretary on methods for expeditious and cost-effective transfer or lease of these facilities

to local communities for reuse by those communities.

(3) The Secretary shall submit to the congressional defense

committees a report on the review and evaluation under this subsection. The report shall be submitted not later than 90 days after

the date of the enactment of this Act [Feb. 10, 1996].

(e) ASSESSMENT OF ALTERNATIVE TECHNOLOGIES FOR DEMILITARIZATION OF ASSEMBLED CHEMICAL MUNITIONS.—(1) In addition

to the assessment required by subsection (c), the Secretary of Defense shall conduct an assessment of the chemical demilitarization

program for destruction of assembled chemical munitions and of

the alternative demilitarization technologies and processes (other

than incineration) that could be used for the destruction of the lethal chemical agents that are associated with these munitions,

while ensuring maximum protection for the general public, the personnel involved in the demilitarization program, and the environment. The measures considered shall be limited to those that would

minimize the risk to the public and reduce the total cost of the

chemical agents and munitions destruction program. The assessment shall be conducted without regard to any limitation that

would otherwise apply to the conduct of such assessment under any

provision of law.

(2) The assessment shall be conducted in coordination with the

National Research Council.

(3) Among the alternatives, the assessment shall include a determination of the cost of incineration of the current chemical munitions stockpile by building incinerators at each existing facility

compared to the proposed cost of dismantling those same munitions, neutralizing them at each storage site (other than Tooele

Army Depot or Johnston Atoll), and transporting the neutralized

remains and all munitions parts to a treatment, storage, and disposal facility within the United States that has the necessary environmental permits to undertake incineration of the material.

(4) Based on the results of the assessment, the Secretary shall

develop appropriate recommendations for revision of the chemical

demilitarization program.
Sec. 143 CHEMICAL AND BIOLOGICAL WEAPONS 274

(5) Not later than December 31, 1997, the Secretary of Defense

shall submit to Congress a report on the assessment conducted in

accordance with paragraph (1) and any recommendations for revision of the chemical demilitarization program, including the continued development of alternative demilitarization technologies and

processes other than incineration that could be used for the destruction of the lethal chemical agents that are associated with

these assembled chemical munitions and the chemical munitions

demilitarization sites for which the selected technologies should be

developed.

(f) PILOT PROGRAM FOR DEMILITARIZATION OF CHEMICAL

AGENTS FOR ASSEMBLED MUNITIONS.—(1) If the Secretary of Defense makes a decision to continue the development of an alternative demilitarization technology or process (other than incineration) that could be used for the destruction of the lethal chemical

agents that are associated with assembled chemical munitions,

$25,000,000 shall be available from the funds authorized to be appropriated in section 107 of the National Defense Authorization Act

for Fiscal Year 1997 for the chemical agents and munitions destruction program, in order to initiate a pilot program using the selected alternative technology or process for the destruction of chemical agents that are stored at these sites.

(2) Not less than 30 days before using funds to initiate the

pilot program under paragraph (1), the Secretary shall submit notice in writing to Congress of the Secretary’s intent to do so.

d. Transportation of Chemical Munitions

(Section 143 of the National Defense Authorization Act for Fiscal Year 1995 (Public

Law 103–337, approved Oct. 5, 1994))

SEC. 143. ø50 U.S.C. 1512a¿ TRANSPORTATION OF CHEMICAL MUNITIONS.

(a) PROHIBITION OF TRANSPORTATION ACROSS STATE LINES.—

The Secretary of Defense may not transport any chemical munition

that constitutes part of the chemical weapons stockpile out of the

State in which that munition is located on the date of the enactment of this Act [October 5, 1994] and, in the case of any such

chemical munition not located in a State on the date of the enactment of this Act, may not transport any such munition into a

State.

(b) TRANSPORTATION OF CHEMICAL MUNITIONS NOT IN CHEMICAL WEAPONS STOCKPILE.—In the case of any chemical munitions

that are discovered or otherwise come within the control of the Department of Defense and that do not constitute part of the chemical

weapons stockpile, the Secretary of Defense may transport such

munitions to the nearest chemical munitions stockpile storage facility that has necessary permits for receiving and storing such items

if the transportation of such munitions to that facility—

(1) is considered by the Secretary of Defense to be necessary; and

(2) can be accomplished while protecting public health and

safety.
275 FY94 CHEMICAL AND BIOLOGICAL WEAPONS

e. Chemical and Biological Weapons Defense

(Title XVII of the National Defense Authorization Act for Fiscal Year 1994 (Public

Law 103–160, approved Nov. 30, 1993))

TITLE XVII—CHEMICAL AND BIOLOGICAL WEAPONS

DEFENSE

SEC. 1701. ø50 U.S.C. 1522¿ CONDUCT OF THE CHEMICAL AND BIOLOGICAL DEFENSE PROGRAM.

(a) GENERAL.—The Secretary of Defense shall carry out the

chemical and biological defense program of the United States in accordance with the provisions of this section.

(b) MANAGEMENT AND OVERSIGHT.—In carrying out his responsibilities under this section, the Secretary of Defense shall do the

following:

(1) Assign responsibility for overall coordination and integration of the chemical and biological warfare defense program

and the chemical and biological medical defense program to a

single office within the Office of the Secretary of Defense.

(2) Take those actions necessary to ensure close and continuous coordination between (A) the chemical and biological

warfare defense program, and (B) the chemical and biological

medical defense program.

(3) Exercise oversight over the chemical and biological defense program through the Defense Acquisition Board process.

(c) COORDINATION OF THE PROGRAM.—(1) The Secretary of Defense shall designate the Army as executive agent for the Department of Defense to coordinate and integrate research, development,

test, and evaluation, and acquisition, requirements of the military

departments for chemical and biological warfare defense programs

of the Department of Defense.

(2) The Director of the Defense Advanced Research Projects

Agency may conduct a program of basic and applied research and

advanced technology development on chemical and biological warfare defense technologies and systems. In conducting such program,

the Director shall seek to avoid unnecessary duplication of the activities under the program with chemical and biological warfare defense activities of the military departments and defense agencies

and shall coordinate the activities under the program with those of

the military departments and defense agencies.

(d) FUNDING.—(1) The budget for the Department of Defense

for each fiscal year after fiscal year 1994 shall reflect a coordinated

and integrated chemical and biological defense program for the Department of Defense.

(2) Funding requests for the program (other than for activities

under the program conducted by the Defense Advanced Research

Projects Agency under subsection (c)(2)) shall be set forth in the

budget of the Department of Defense for each fiscal year as a separate account, with a single program element for each of the categories of research, development, test, and evaluation, acquisition,

and military construction. Amounts for military construction

projects may be set forth in the annual military construction budget. Funds for military construction for the program in the military

construction budget shall be set forth separately from other funds
FY94 CHEMICAL AND BIOLOGICAL WEAPONS 276

for military construction projects. Funding requests for the program may not be included in the budget accounts of the military

departments.

(3) The program conducted by the Defense Advanced Research

Projects Agency under subsection (c)(2) shall be set forth as a separate program element in the budget of that agency.

(4) All funding requirements for the chemical and biological defense program shall be reviewed by the Secretary of the Army as

executive agent pursuant to subsection (c).

(e) MANAGEMENT REVIEW AND REPORT.—(1) The Secretary of

Defense shall conduct a review of the management structure of the

Department of Defense chemical and biological warfare defense

program, including—

(A) research, development, test, and evaluation;

(B) procurement;

(C) doctrine development;

(D) policy;

(E) training;

(F) development of requirements;

(G) readiness; and

(H) risk assessment.

(2) Not later than May 1, 1994, the Secretary shall submit to

Congress a report that describes the details of measures being

taken to improve joint coordination and oversight of the program

and ensure a coherent and effective approach to its management.

SEC. 1702. ø50 U.S.C. 1522 note¿ CONSOLIDATION OF CHEMICAL AND BIOLOGICAL DEFENSE TRAINING ACTIVITIES.

The Secretary of Defense shall consolidate all chemical and biological warfare defense training activities of the Department of

Defense at the United States Army Chemical School.

SEC. 1703. ø50 U.S.C. 1523¿ ANNUAL REPORT ON CHEMICAL AND BIOLOGICAL WARFARE DEFENSE.

(a) REPORT REQUIRED.—The Secretary of Defense shall include

in the annual report of the Secretary under section 113(c) of title

10, United States Code, a report on chemical and biological warfare

defense. The report shall assess—

(1) the overall readiness of the Armed Forces to fight in a

chemical-biological warfare environment and shall describe

steps taken and planned to be taken to improve such readiness; and

(2) requirements for the chemical and biological warfare

defense program, including requirements for training, detection, and protective equipment, for medical prophylaxis, and

for treatment of casualties resulting from use of chemical or biological weapons.

(b) MATTERS TO BE INCLUDED.—The report shall include information on the following:

(1) The quantities, characteristics, and capabilities of fielded chemical and biological defense equipment to meet wartime

and peacetime requirements for support of the Armed Forces,

including individual protective items.

(2) The status of research and development programs, and

acquisition programs, for required improvements in chemical
277 FY94 CHEMICAL AND BIOLOGICAL WEAPONS

and biological defense equipment and medical treatment, including an assessment of the ability of the Department of Defense and the industrial base to meet those requirements.

(3) Measures taken to ensure the integration of requirements for chemical and biological defense equipment and material among the Armed Forces.

(4) The status of nuclear, biological, and chemical (NBC)

warfare defense training and readiness among the Armed

Forces and measures being taken to include realistic nuclear,

biological, and chemical warfare simulations in war games,

battle simulations, and training exercises.

(5) Measures taken to improve overall management and

coordination of the chemical and biological defense program.

(6) Problems encountered in the chemical and biological

warfare defense program during the past year and recommended solutions to those problems for which additional resources or actions by the Congress are required.

(7) A description of the chemical warfare defense preparations that have been and are being undertaken by the Department of Defense to address needs which may arise under article X of the Chemical Weapons Convention.

(8) A summary of other preparations undertaken by the

Department of Defense and the On-Site Inspection Agency to

prepare for and to assist in the implementation of the convention, including activities such as training for inspectors, preparation of defense installations for inspections under the convention using the Defense Treaty Inspection Readiness Program,

provision of chemical weapons detection equipment, and assistance in the safe transportation, storage, and destruction of

chemical weapons in other signatory nations to the convention.

(9) A description of any program involving the testing of

biological or chemical agents on human subjects that was carried out by the Department of Defense during the period covered by the report, together with—

(A) a detailed justification for the testing;

(B) a detailed explanation of the purposes of the testing;

(C) a description of each chemical or biological agent

tested; and

(D) the Secretary’s certification that informed consent

to the testing was obtained from each human subject in

advance of the testing on that subject.

SEC. 1704. ø50 U.S.C. 1522 note¿ SENSE OF CONGRESS CONCERNING

FEDERAL EMERGENCY PLANNING FOR RESPONSE TO

TERRORIST THREATS.

It is the sense of Congress that the President should strengthen Federal interagency emergency planning by the Federal Emergency Management Agency and other appropriate Federal, State,

and local agencies for development of a capability for early detection and warning of and response to—

(1) potential terrorist use of chemical or biological agents

or weapons; and

(2) emergencies or natural disasters involving industrial

chemicals or the widespread outbreak of disease.
FY93 CHEMICAL AND BIOLOGICAL WEAPONS 278

SEC. 1705. ø50 U.S.C. 1524¿ AGREEMENTS TO PROVIDE SUPPORT TO

VACCINATION PROGRAMS OF DEPARTMENT OF HEALTH

AND HUMAN SERVICES.

(a) AGREEMENTS AUTHORIZED.—The Secretary of Defense may

enter into agreements with the Secretary of Health and Human

Services to provide support for vaccination programs of the Secretary of Health and Human Services in the United States through

use of the excess peacetime biological weapons defense capability

of the Department of Defense.

(b) REPORT.—Not later than February 1, 1994, the Secretary of

Defense shall submit to the congressional defense committees a report on the feasibility of providing Department of Defense support

for vaccination programs under subsection (a) and shall identify resource requirements that are not within the Department’s capability.

f. National Defense Authorization Act for Fiscal Year 1993

(Public Law 102–484, approved Oct. 23, 1992)

TITLE I—PROCUREMENT

* * * * * * *

Subtitle G—Chemical Demilitarization Program

* * * * * * *

SEC. 172. [50 U.S.C. 1521 note] CHEMICAL DEMILITARIZATION CITIZENS ADVISORY COMMISSIONS.

(a) ESTABLISHMENT.—(1) The Secretary of the Army shall establish a citizens’ commission for each State in which there is a

low-volume site (as defined in section 180). Each such commission

shall be known as the ‘‘Chemical Demilitarization Citizens’ Advisory Commission’’ for that State.

(2) The Secretary shall also establish a Chemical Demilitarization Citizens’ Advisory Commission for any State in which there is

located a chemical weapons storage site other than a low-volume

site, if the establishment of such a commission for such State is requested by the Governor of that State.

(b) FUNCTIONS.—The Secretary of the Army shall provide for a

representative from the Office of the Assistant Secretary of the

Army (Research, Development and Acquisition) to meet with each

commission under this section to receive citizen and State concerns

regarding the ongoing program of the Army for the disposal of the

lethal chemical agents and munitions in the stockpile referred to

in section 1412(a)(1) of the Department of Defense Authorization

Act, 1986 (50 U.S.C. 1521(a)(1)) at each of the sites with respect

to which a commission is established pursuant to subsection (a).

(c) MEMBERSHIP.—(1) Each commission established for a State

pursuant to subsection (a) shall be composed of nine members appointed by the Governor of the State. Seven of such members shall

be citizens from the local affected areas in the State; the other two

shall be representatives of State government who have direct responsibilities related to the chemical demilitarization program.
279 FY93 CHEMICAL AND BIOLOGICAL WEAPONS

(2) For purposes of paragraph (1), affected areas are those

areas located within a 50-mile radius of a chemical weapons storage site.

(d) CONFLICTS OF INTEREST.—For a period of five years after

the termination of any commission, no corporation, partnership, or

other organization in which a member of that commission, a spouse

of a member of that commission, or a natural or adopted child of

a member of that commission has an ownership interest may be

awarded—

(1) a contract related to the disposal of lethal chemical

agents or munitions in the stockpile referred to in section

1412(a)(1) of the Department of Defense Authorization Act,

1986 (50 U.S.C. 1521(a)(1)); or

(2) a subcontract under such a contract.

(e) CHAIRMAN.—The members of each commission shall designate the chairman of the commission from among the members

of the commission.

(f) MEETINGS.—Each commission shall meet with a representative from the Office of the Assistant Secretary of the Army (Research, Development and Acquisition) upon joint agreement between the chairman of the commission and that representative.

The two parties shall meet not less often than twice a year and

may meet more often at their discretion.

(g) PAY AND EXPENSES.—Members of each commission shall receive no pay for their involvement in the activities of their commissions. Funds appropriated for the Chemical Stockpile Demilitarization Program may be used for travel and associated travel costs for

Citizens’ Advisory Commissioners, when such travel is conducted

at the invitation of the Assistant Secretary of the Army (Research,

Development, and Acquisition).

(h) TERMINATION OF COMMISSIONS.—Each commission shall be

terminated after the stockpile located in that commission’s State

has been destroyed.

* * * * * * *

SEC. 174. [50 U.S.C. 1521 note] ALTERNATIVE DISPOSAL PROCESS FOR

LOW-VOLUME SITES.

(a) REQUIREMENT FOR ALTERNATIVE PROCESS.—If the date by

which chemical weapons destruction and demilitarization operations can be completed at a low-volume site using an alternative

technology process evaluated by the Secretary of the Army falls

within the deadline established by the amendment made by section

171 and the Secretary determines that the use of that alternative

technology process for the destruction of chemical weapons at that

site is significantly safer and equally or more cost-effective than

the use of the baseline disassembly and incineration process, then

the Secretary of the Army, as part of the requirement of section

1412(a) of Public Law 99–145, shall carry out the disposal of chemical weapons at that site using such alternative technology process.

In addition, the Secretary may carry out the disposal of chemical

weapons at sites other than low-volume sites using an alternative

technology process (rather than the baseline process) after notifying Congress of the Secretary’s intent to do so.
FY93 CHEMICAL AND BIOLOGICAL WEAPONS 280

(b) APPLICABILITY OF CERTAIN PROVISIONS OF SECTION 1412.—

Subsections (c), (e), (f), and (g) of section 1412 of Public Law 99–

145 (50 U.S.C. 1521) shall apply to this section and to activities

under this section in the same manner as if this section were part

of that section 1412.

SEC. 175. [50 U.S.C. 1521 note] REVISED CHEMICAL WEAPONS DISPOSAL

CONCEPT PLAN.

(a) REVISED PLAN.—If, pursuant to section 174, the Secretary

of the Army is required to implement an alternative technology

process for destruction of chemical weapons at any low volume site,

the Secretary shall submit to Congress a revised chemical weapons

disposal concept plan incorporating the alternative technology process and reflecting the revised stockpile disposal schedule developed

under section 1412(b) of Public Law 99–145 (50 U.S.C. 1521(b)), as

amended by section 171. In developing the revised concept plan,

the Secretary should consider, to the maximum extent practicable,

revisions to the program and program schedule that capitalize on

the changes to the chemical demilitarization schedule resulting

from the revised stockpile elimination deadline by reducing cost

and decreasing program risk.

(b) MATTERS TO BE INCLUDED.—The revised concept plan

should include—

(1) life-cycle cost estimates and schedules; and

(2) a description of the facilities and operating procedures

to be employed using the alternative technology process.

(c) APPLICABILITY OF CERTAIN PROVISIONS OF SECTION 1412.—

Subsection (c) of section 1412 of Public Law 99–145 (50 U.S.C.

1521) shall apply to the revised concept plan in the same manner

as if this section were part of that section 1412.

(d) SUBMISSION OF REVISED PLAN.—If the Secretary is required

to submit a revised concept plan under this section, the Secretary

shall submit the revised concept plan during the 120-day period beginning at the end of the 60-day period following the submission

of the report of the Secretary required under section 173.

(e) LIMITATION.—If the Secretary is required to submit a revised concept plan under this section, no funds may be obligated

for procurement of equipment or for facilities planning and design

activities (other than for those preliminary planning and design activities required to comply with subsection(b)(2)) for a chemical

weapons disposal facility at any low-volume site at which the Secretary intends to implement an alternative technology process until

the Secretary submits the revised concept plan.

* * * * * * *

SEC. 180. [50 U.S.C. 1521 note] DEFINITION OF LOW-VOLUME SITE.

For purposes of this subtitle, the term ‘‘low-volume site’’ means

one of the three chemical weapons storage sites in the United

States at which there is stored 5 percent or less of the total United

States stockpile of unitary chemical weapons.
281 Sec. 1412 CHEMICAL AND BIOLOGICAL WEAPONS

g. Destruction of Existing Stockpile of Lethal Chemical

Agents and Munitions

(Section 1412 of the Department of Defense Authorization Act, 1986 (Public Law

99–145; approved Nov. 8, 1985))

SEC. 1412. ø50 U.S.C. 1521¿ DESTRUCTION OF EXISTING STOCKPILE OF

LETHAL CHEMICAL AGENTS AND MUNITIONS

(a) IN GENERAL.—Notwithstanding any other provision of law,

the Secretary of Defense (hereinafter in this section referred to as

the ‘‘Secretary’’) shall, in accordance with the provisions of this section, carry out the destruction of the United States’ stockpile of lethal chemical agents and munitions that exists on November 8,

1985.

(b) DATE FOR COMPLETION.—(1) Except as provided by paragraphs (2) and (3), the destruction of such stockpile shall be completed by the stockpile elimination deadline.

(2) If a treaty banning the possession of chemical agents and

munitions is ratified by the United States, the date for completing

the destruction of the United States’ stockpile of such agents and

munitions shall be the date established by such treaty.

(3)(A) In the event of a declaration of war by the Congress or

of a national emergency by the President or the Congress or if the

Secretary of Defense determines that there has been a significant

delay in the acquisition of an adequate number of binary chemical

weapons to meet the requirements of the Armed Forces (as defined

by the Joint Chiefs of Staff as of September 30, 1985), the Secretary may defer, beyond the stockpile elimination deadline, the destruction of not more than ten percent of the stockpile described in

subsection (a)(1).

(B) The Secretary shall transmit written notice to the Congress

of any deferral made under subparagraph (A) not later than the

earlier of (A) 30 days after the date on which the decision to defer

is made, or (B) 30 days before the stockpile elimination deadline.

(4) If the Secretary determines at any time that there will be

a delay in meeting the requirement in paragraph (1) for the completion of the destruction of chemical weapons by the stockpile

elimination deadline, the Secretary shall immediately notify the

Committee on Armed Services of the Senate and the Committee on

Armed Services of the House of Representatives of that projected

delay.

(5) For purposes of this section, the term ‘‘stockpile elimination

deadline’’ means December 31, 2004.

(c) ENVIRONMENTAL PROTECTION AND USE OF FACILITIES.—(1)

In carrying out the requirement of subsection (a), the Secretary

shall provide for—

(A) maximum protection for the environment, the general

public, and the personnel who are involved in the destruction

of the lethal chemical agents and munitions referred to in subsection (a); and

(B) adequate and safe facilities designed solely for the destruction of lethal chemical agents and munitions.

(2) Facilities constructed to carry out this section shall, when

no longer needed for the purposes for which they were constructed,

be disposed of in accordance with applicable laws and regulations
Sec. 1412 CHEMICAL AND BIOLOGICAL WEAPONS 282

and mutual agreements between the Secretary of the Army and the

Governor of the State in which the facility is located.

(3)(A) Facilities constructed to carry out this section may not

be used for a purpose other than the destruction of the stockpile

of lethal chemical agents and munitions that exists on November

8, 1985.

(B) The prohibition in subparagraph (A) shall not apply with

respect to items designated by the Secretary of Defense as lethal

chemical agents, munitions, or related materials after November 8,

1985, if the State in which a destruction facility is located issues

the appropriate permit or permits for the destruction of such items

at the facility.

(4) In order to carry out subparagraph (A) of paragraph (1), the

Secretary may make grants to State and local governments (either

directly or through the Federal Emergency Management Agency) to

assist those governments in carrying out functions relating to

emergency preparedness and response in connection with the disposal of the lethal chemical agents and munitions referred to in

subsection (a). Funds available to the Department of Defense for

the purpose of carrying out this section may be used for such

grants. Additionally, the Secretary may provide funds through cooperative agreements with State and local governments for the

purpose of assisting them in processing, approving, and overseeing

permits and licenses necessary for the construction and operation

of facilities to carry out this section. The Secretary shall ensure

that funds provided through such a cooperative agreement are used

only for the purpose set forth in the preceding sentence.

(5)(A) In coordination with the Secretary of the Army and in

accordance with agreements between the Secretary of the Army

and the Director of the Federal Emergency Management Agency,

the Director shall carry out a program to provide assistance to

State and local governments in developing capabilities to respond

to emergencies involving risks to the public health or safety within

their jurisdictions that are identified by the Secretary as being

risks resulting from—

(i) the storage of lethal chemical agents and munitions referred to in subsection (a) at military installations in the continental United States; or

(ii) the destruction of such agents and munitions at facilities referred to in paragraph (1)(B).

(B) No assistance may be provided under this paragraph after

the completion of the destruction of the United States’ stockpile of

lethal chemical agents and munitions.

(C) Not later than December 15 of each year, the Director shall

transmit a report to Congress on the activities carried out under

this paragraph during the fiscal year preceding the fiscal year in

which the report is submitted.

(d) PLAN.—(1) The Secretary shall develop a comprehensive

plan to carry out this section.

(2) In developing such plan, the Secretary shall consult with

the Secretary of Health and Human Services and the Administrator of the Environmental Protection Agency.

(3) The Secretary shall transmit a copy of such plan to the

Congress by March 15, 1986.
283 Sec. 1412 CHEMICAL AND BIOLOGICAL WEAPONS

(4) Such plan shall provide—

(A) an evaluation of the comparison of onsite destruction,

regional destruction centers, and a national destruction site

both inside and outside of the United States;

(B) for technological advances in techniques used to destroy chemical munitions;

(C) for the maintenance of a permanent, written record of

the destruction of lethal chemical agents and munitions carried

out under this section; and

(D) a description of—

(i) the methods and facilities to be used in the destruction of agents and munitions under this section;

(ii) the schedule for carrying out this section; and

(iii) the management organization established under

subsection (e).

(e) MANAGEMENT ORGANIZATION.—(1) In carrying out this section, the Secretary shall provide for the establishment, not later

than May 1, 1986, of a management organization within the Department of the Army.

(2) Such organization shall be responsible for management of

the destruction of agents and munitions under this section.

(3) The Secretary shall designate a general officer or civilian

equivalent as the director of the management organization established under paragraph (1). Such officer shall have—

(A) experience in the acquisition, storage, and destruction

of chemical agents and munitions;

(B) training in chemical warfare defense operations; and

(C) outstanding qualifications regarding safety in handling

chemical agents and munitions.

(f) IDENTIFICATION OF FUNDS.—(1) Funds for carrying out this

section, including funds for military construction projects necessary

to carry out this section, shall be set forth in the budget of the Department of Defense for any fiscal year as a separate account. Such

funds shall not be included in the budget accounts for any military

department.

(2) Amounts appropriated to the Secretary for the purpose of

carrying out subsection (c)(5) shall be promptly made available to

the Director of the Federal Emergency Management Agency.

(g) PERIODIC REPORTS.—(1) Except as provided by paragraph

(3), the Secretary shall transmit, by December 15 of each year, a

report to the Congress on the activities carried out under this section during the fiscal year ending on September 30 of the calendar

year in which the report is to be made.

(2) Each annual report shall include the following:

(A) A site-by-site description of the construction, equipment, operation, and dismantling of facilities (during the fiscal

year for which the report is made) used to carry out the destruction of agents and munitions under this section, including

any accidents or other unplanned occurrences associated with

such construction and operation.

(B) A site-by-site description of actions taken to assist

State and local governments (either directly or through the

Federal Emergency Management Agency) in carrying out func-
Sec. 1412 CHEMICAL AND BIOLOGICAL WEAPONS 284

tions relating to emergency preparedness and response in accordance with subsection (c)(4).

(C) An accounting of all funds expended (during such fiscal

year) for activities carried out under this section, with a separate accounting for amounts expended for—

(i) the construction of and equipment for facilities used

for the destruction of agents and munitions;

(ii) the operation of such facilities;

(iii) the dismantling or other closure of such facilities;

(iv) research and development;

(v) program management;

(vi) travel and associated travel costs for Citizens’ Advisory Commissioners under section 172(g) of Public Law

102–484 (50 U.S.C. 1521 note); and

(vii) grants to State and local governments to assist

those governments in carrying out functions relating to

emergency preparedness and response in accordance with

subsection (c)(4).

(D) An assessment of the safety status and the integrity of

the stockpile of lethal chemical agents and munitions subject

to this section, including—

(i) an estimate on how much longer that stockpile can

continue to be stored safely;

(ii) a site-by-site assessment of the safety of those

agents and munitions; and

(iii) a description of the steps taken (to the date of the

report) to monitor the safety status of the stockpile and to

mitigate any further deterioration of that status.

(3) The Secretary shall transmit the final report under paragraph (1) not later than 120 days following the completion of activities under this section.

(h) PROHIBITION ON ACQUIRING CERTAIN LETHAL CHEMICAL

AGENTS AND MUNITIONS.—(1) Except as provided in paragraph (2),

no agency of the Federal Government may, after November 8, 1985,

develop or acquire lethal chemical agents or munitions other than

binary chemical weapons.

(2)(A) The Secretary of Defense may acquire any chemical

agent or munition at any time for purposes of intelligence analysis.

(B) Chemical agents and munitions may be acquired for research, development, test, and evaluation purposes at any time, but

only in quantities needed for such purposes and not in production

quantities.

(i) REAFFIRMATION OF UNITED STATES POSITION ON FIRST USE

OF CHEMICAL AGENTS AND MUNITIONS.—It is the sense of Congress

that the President should publicly reaffirm the position of the

United States as set out in the Geneva Protocol of 1925, which the

United States ratified with reservations in 1975.

(j) DEFINITIONS.—For purposes of this section:

(1) The term ‘‘chemical agent and munition’’ means an

agent or munition that, through its chemical properties, produces lethal or other demaging effects on human beings, except

that such term does not include riot control agents, chemical

herbicides, smoke and other obscuration materials.
285 Sec. 1233 CHEMICAL AND BIOLOGICAL WEAPONS

(2) The term ‘‘lethal chemical agent and munition’’ means

a chemical agent or munition that is designed to cause death,

through its chemical properties, to human beings in field concentrations.

(3) The term ‘‘destruction’’ means, with respect to chemical

munitions or agents—

(A) the demolishment of such munitions or agents by

incineration or by any other means; or

(B) the dismantling or other disposal of such munitions or agents so as to make them useless for military

purposes and harmless to human beings under normal circumstances.

(k) OPERATIONAL VERIFICATION.—(1) Until the Secretary of the

Army successfully completes (through the prove-out work to be conducted at Johnston Atoll) operational verification of the technology

to be used for the destruction of live chemical agents and munitions under this section, the Secretary may not conduct any activity

for equipment prove out and systems test before live chemical

agents are introduced at a facility (other than the Johnston Atoll

facility) at which the destruction of chemical agent and munitions

weapons is to take place under this section. The limitation in the

preceding sentence shall not apply with respect to the Chemical

Agent Munition Disposal System in Tooele, Utah.

(2) Upon the successful completion of the prove out of the

equipment and facility at Johnston Atoll, the Secretary of Defense

shall submit to the Committee on Armed Services of the Senate

and the Committee on Armed Services of the House of Representatives a report certifying that the prove out is completed.

(3) If the Secretary determines at any time that there will be

a delay in meeting the deadline of December 31, 1990, scheduled

by the Department of Defense for completion of the operational verification at Johnston Atoll referred to in paragraph (1), the Secretary shall immediately notify the Committees of that projected

delay.

h. Limitation on Procurement of Binary Chemical Weapons

(Section 1233 of the Department of Defense Authorization Act, 1984 (Public Law

98–94; approved Sept. 24, 1983))

LIMITATION ON PROCUREMENT OF BINARY CHEMICAL WEAPONS

SEC. 1233. ø50 U.S.C. 1519a¿ (a) Notwithstanding any other

provision of law, no funds may be obligated or expended after the

date of the enactment of this Act [Sept. 24, 1983] for the production

of binary chemical weapons unless the President certifies to the

Congress that for each 155-millimeter binary artillery shell or aircraft-delivery binary aerial bomb produced a serviceable unitary artillery shell from the existing arsenal shall be rendered permanently useless for military purposes.

(b)(1) Funds appropriated pursuant to the authorization of appropriations for the Army in section 101 of this Act may be used

for the establishment of a production base for binary chemical munitions and for the procurement of components for 155-millimeter

binary chemical artillery projectiles, but such funds may not be
Sec. 409 CHEMICAL AND BIOLOGICAL WEAPONS 286

used for the actual production of binary chemical munitions before

October 1, 1985.

(2) Notwithstanding the provisions of paragraph (1), before the

production of binary chemical munitions may begin after September 30, 1985, the President must certify to Congress in writing

that, in light of circumstances prevailing at the time the certification is made, the production of such munitions is essential to the

national interest.

(3) For purpose of this subsection, ‘‘production of binary chemical munitions’’ means the final assembly of weapon components

and the filling or loading of components with binary chemicals.

i. Section 409 of the Act of November 19, 1969

(Public Law 91–121, approved Nov. 19, 1969)

SEC. 409. (a) ø50 U.S.C. 1511¿ [Repealed by section 1061(k) of

Public Law 104–106.]

(b) ø50 U.S.C. 1512¿ None of the funds authorized to be appropriated by this Act or any other Act may be used for the transportation of any lethal chemical or any biological warfare agent to or

from any military installation in the United States, the open air

testing of any such agent within the United States, or the disposal

of any such agent within the United States until the following procedures have been implemented:

(1) the Secretary of Defense (hereafter referred to in this

section as the ‘‘Secretary’’) has determined that the transportation or testing proposed to be made is necessary in the interests of national security;

(2) the Secretary has brought the particulars of the proposed transportation or testing to the attention of the Secretary of Health, Education, and Welfare, who in turn may direct the Surgeon General of the Public Health Service and

other qualified persons to review such particulars with respect

to any hazards to public health and safety which such transportation, testing, or disposal may pose and to recommend

what precautionary measures are necessary to protect the public health and safety;

(3) the Secretary has implemented any precautionary

measures recommended in accordance with paragraph (2)

above (including where practicable, the detoxification of any

such agent, if such agent is to be transported to or from a military installation for disposal): Provided, however, That in the

event the Secretary finds the recommendation submitted by

the Surgeon General would have the effect of preventing the

proposed transportation or testing, the President may determine that overriding considerations of national security require

such transportation, testing, or disposal be conducted. Any

transportation or testing conducted pursuant to such a Presidential determination shall be carried out in the safest practicable manner, and the President shall report his determination and an explanation thereof to the President of the Senate

and the Speaker of the House of Representatives as far in advance as practicable; and
287 Sec. 409 CHEMICAL AND BIOLOGICAL WEAPONS

(4) the Secretary has provided notification that the transportation, testing, or disposal will take place, except where a

Presidential determination has been made: (A) to the President

of the Senate and the Speaker of the House of Representatives

at least 10 days before any such transportation will be commenced and at least 30 days before any such testing or disposal will be commenced; (B) to the Governor of any State

through which such agents will be transported, such notification to be provided appropriately in advance of any such transportation.

(c) ø50 U.S.C. 1513¿ (1) None of the funds authorized to be appropriated by this Act or any other Act may be used for the future

deployment, storage, or disposal at any place outside the United

States of—

(A) any lethal chemical or any biological warfare agent, or

(B) any delivery system specfically designed to disseminate

any such agent,

unless prior notice of such deployment, storage, or disposal has

been given to the country exercising jurisdiction over such place. In

the case of any place outside the United States which is under the

jurisdiction or control of the United States Government, no such action may be taken unless the Secretary gives prior notice of such

action to the President of the Senate and the Speaker of the House

of Representatives. As used in this paragraph, the term ‘‘United

States’’ means the several States and the District of Columbia.

(2) None of the funds authorized by this Act or any other Act

shall be used for the future testing, development, transportation,

storage, or disposal of any lethal chemical or any biological warfare

agent outside the United States, or for the disposal of any munitions in international waters, if the Secretary of State, after appropriate notice by the Secretary whenever any such action is contemplated, determines that such testing, development, transportation, storage, or disposal will violate international law. The Secretary of State shall report all determinations made by him under

this paragraph to the President of the Senate and the Speaker of

the House of Representatives, and to all appropriate international

organizations, or organs thereof, in the event such report is required by treaty or other international agreement.

(d) ø50 U.S.C. 1514¿ Unless otherwise indicated, as used in

this section the term ‘‘United States’’ means the several States, the

District of Columbia, and the territories and possessions of the

United States.

(e) ø50 U.S.C. 1515¿ After the effective date of this Act, the operation of this section, or any portion thereof, may be suspended

by the President during the period of any war declared by Congress

and during the period of any national emergency declared by Congress or by the President.

(f) ø50 U.S.C. 1516 note¿ None of the funds authorized to be

appropriated by this Act may be used for the procurement of any

delivery system specifically designed to disseminate any lethal

chemical or any biological warfare agent, or for the procurement of

any part or component of any such delivery system, unless the

President shall certify to the Congress that such procurement is essential to the safety and security of the United States.
Sec. 409 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION 288

(g) ø50 U.S.C. 1517¿ Nothing contained in this section shall be

deemed to restrict the transportation or disposal of research quantities of any lethal chemical or any biological warfare agent, or to

dalay or prevent, in emergency situations either within or outside

the United States, the immediate disposal together with any necessary associated transportation, of any lethal chemical or any biological warfare agent when compliance with the procedures and requirements of this section would clearly endanger the health or

safety of any person.

j. Chemical Weapons Convention Implementation Act of

1998

(Division I of Public Law 105–277; 112 Stat. 2681–856; approved Oct. 21, 1998)

DIVISION I—CHEMICAL WEAPONS CONVENTION

SECTION 1. ø22 U.S.C. 6701 note¿ SHORT TITLE.

This Division may be cited as the ‘‘Chemical Weapons Convention Implementation Act of 1998’’.

SEC. 2. TABLE OF CONTENTS.

The table of contents for this Act is as follows:

Sec. 1. Short title.

Sec. 2. Table of contents.

Sec. 3. Definitions.

TITLE I—GENERAL PROVISIONS

Sec. 101. Designation of United States National Authority.

Sec. 102. No abridgement of constitutional rights.

Sec. 103. Civil liability of the United States.

TITLE II—PENALTIES FOR UNLAWFUL ACTIVITIES SUBJECT TO THE

JURISDICTION OF THE UNITED STATES

Subtitle A—Criminal and Civil Penalties

Sec. 201. Criminal and civil provisions.

Subtitle B—Revocations of Export Privileges

Sec. 211. Revocations of export privileges.

TITLE III—INSPECTIONS

Sec. 301. Definitions in the title.

Sec. 302. Facility agreements.

Sec. 303. Authority to conduct inspections.

Sec. 304. Procedures for inspections.

Sec. 305. Warrants.

Sec. 306. Prohibited acts relating to inspections.

Sec. 307. National security exception.

Sec. 308. Protection of constitutional rights of contractors.

Sec. 309. Annual report on inspections.

Sec. 310. United States assistance in inspections at private facilities.

TITLE IV—REPORTS

Sec. 401. Reports required by the United States National Authority.

Sec. 402. Prohibition relating to low concentrations of schedule 2 and 3 chemicals.

Sec. 403. Prohibition relating to unscheduled discrete organic chemicals and coincidental byproducts in waste streams.

Sec. 404. Confidentiality of information.

Sec. 405. Recordkeeping violations.
289 Sec. 3 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION

TITLE V—ENFORCEMENT

Sec. 501. Penalties.

Sec. 502. Specific enforcement.

Sec. 503. Expedited judicial review.

TITLE VI—MISCELLANEOUS PROVISIONS

Sec. 601. Repeal.

Sec. 602. Prohibition.

Sec. 603. Bankruptcy actions.

SEC. 3. ø22 U.S.C. 6701¿ DEFINITIONS.

In this Act:

(1) CHEMICAL WEAPON.—The term ‘‘chemical weapon’’

means the following, together or separately:

(A) A toxic chemical and its precursors, except where

intended for a purpose not prohibited under this Act as

long as the type and quantity is consistent with such a

purpose.

(B) A munition or device, specifically designed to cause

death or other harm through toxic properties of those toxic

chemicals specified in subparagraph (A), which would be

released as a result of the employment of such munition

or device.

(C) Any equipment specifically designed for use directly in connection with the employment of munitions or

devices specified in subparagraph (B).

(2) CHEMICAL WEAPONS CONVENTION; CONVENTION.—The

terms ‘‘Chemical Weapons Convention’’ and ‘‘Convention’’ mean

the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their

Destruction, opened for signature on January 13, 1993.

(3) KEY COMPONENT OF A BINARY OR MULTICOMPONENT

CHEMICAL SYSTEM.—The term ‘‘key component of a binary or

multicomponent chemical system’’ means the precursor which

plays the most important role in determining the toxic properties of the final product and reacts rapidly with other chemicals in the binary or multicomponent system.

(4) NATIONAL OF THE UNITED STATES.—The term ‘‘national

of the United States’’ has the same meaning given such term

in section 101(a)(22) of the Immigration and Nationality Act (8

U.S.C. 1101(a)(22)).

(5) ORGANIZATION.—The term ‘‘Organization’’ means the

Organization for the Prohibition of Chemical Weapons.

(6) PERSON.—The term ‘‘person’’, except as otherwise provided, means any individual, corporation, partnership, firm, association, trust, estate, public or private institution, any State

or any political subdivision thereof, or any political entity within a State, any foreign government or nation or any agency, instrumentality or political subdivision of any such government

or nation, or other entity located in the United States.

(7) PRECURSOR.—

(A) IN GENERAL.—The term ‘‘precursor’’ means any

chemical reactant which takes part at any stage in the

production by whatever method of a toxic chemical. The

term includes any key component of a binary or multicomponent chemical system.
Sec. 3 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION 290

(B) LIST OF PRECURSORS.—Precursors which have been

identified for the application of verification measures

under Article VI of the Convention are listed in schedules

contained in the Annex on Chemicals of the Chemical

Weapons Convention.

(8) PURPOSES NOT PROHIBITED BY THIS ACT.—The term

‘‘purposes not prohibited by this Act’’ means the following:

(A) PEACEFUL PURPOSES.—Any peaceful purpose related to an industrial, agricultural, research, medical, or

pharmaceutical activity or other activity.

(B) PROTECTIVE PURPOSES.—Any purpose directly related to protection against toxic chemicals and to protection against chemical weapons.

(C) UNRELATED MILITARY PURPOSES.—Any military

purpose of the United States that is not connected with

the use of a chemical weapon and that is not dependent on

the use of the toxic or poisonous properties of the chemical

weapon to cause death or other harm.

(D) LAW ENFORCEMENT PURPOSES.—Any law enforcement purpose, including any domestic riot control purpose

and including imposition of capital punishment.

(9) TECHNICAL SECRETARIAT.—The term ‘‘Technical Secretariat’’ means the Technical Secretariat of the Organization for

the Prohibition of Chemical Weapons established by the Chemical Weapons Convention.

(10) SCHEDULE 1 CHEMICAL AGENT.—The term ‘‘Schedule 1

chemical agent’’ means any of the following, together or separately:

(A) O-Alkyl (≤C10, incl. cycloalkyl) alkyl

(Me, Et, n-Pr or i-Pr)-phosphonofluoridates

(e.g. Sarin: O-Isopropyl

methylphosphonofluoridate Soman: O-Pinacolyl

methylphosphonofluoridate).

(B) O-Alkyl (≤C10, incl. cycloalkyl) N,N-dialkyl

(Me, Et, n-Pr or i-Pr)-phosphoramidocyanidates

(e.g. Tabun: O-Ethyl N,N-dimethyl

phosphoramidocyanidate).

(C) O-Alkyl (H or ≤C10, incl. cycloalkyl) S-2-dialkyl

(Me, Et, n-Pr or i-Pr)-aminoethyl alkyl

(Me, Et, n-Pr or i-Pr) phosphonothiolates and corresponding alkylated or protonated salts

(e.g. VX: O-Ethyl S-2-diisopropylaminoethyl methyl phosphonothiolate).

(D) Sulfur mustards:

2-Chloroethylchloromethylsulfide

Mustard gas: (Bis(2-chloroethyl)sulfide

Bis(2-chloroethylthio)methane

Sesquimustard: 1,2-Bis(2-chloroethylthio)ethane

1,3-Bis(2-chloroethylthio)-n-propane

1,4-Bis(2-chloroethylthio)-n-butane

1,5-Bis(2-chloroethylthio)-n-pentane

Bis(2-chloroethylthiomethyl)ether

O-Mustard: Bis(2-chloroethylthioethyl)ether.

(E) Lewisites:
291 Sec. 3 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION

Lewisite 1: 2-Chlorovinyldichloroarsine

Lewisite 2: Bis(2-chlorovinyl)chloroarsine

Lewisite 3: Tris (2-clorovinyl)arsine.

(F) Nitrogen mustards:

HN1: Bis(2-chloroethyl)ethylamine

HN2: Bis(2-chloroethyl)methylamine

HN3: Tris(2-chloroethyl)amine.

(G) Saxitoxin.

(H) Ricin.

(I) Alkyl (Me, Et, n-Pr or i-Pr) phosphonyldifluorides

e.g. DF: Methylphosphonyldifluoride.

(J) O-Alkyl (H or ≤C10, incl. cycloalkyl)O-2-dialkyl

(Me, Et, n-Pr or i-Pr)-aminoethyl alkyl

(Me, Et, n-Pr or i-Pr) phosphonites and corresponding alkylated or protonated salts

e.g. QL: O-Ethyl O-2-diisopropylaminoethyl methylphosphonite.

(K) Chlorosarin: O-Isopropyl methylphosphonochloridate.

(L) Chlorosoman: O-Pinacolyl methylphosphonochloridate.

(11) SCHEDULE 2 CHEMICAL AGENT.—The term ‘‘Schedule 2

chemical agent’’ means the following, together or separately:

(A) Amiton: O,O-Diethyl S-[2-(diethylamino)ethyl]

phosphorothiolate and corresponding alkylated or protonated

salts.

(B) PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)-1-propene.

(C) BZ: 3-Quinuclidinyl benzilate

(D) Chemicals, except for those listed in Schedule 1, containing

a phosphorus atom to which is bonded one methyl, ethyl or propyl

(normal or iso) group but not further carbon atoms,

e.g. Methylphosphonyl dichloride Dimethyl methylphosphonate

Exemption: Fonofos: O-Ethyl S-phenyl

ethylphosphonothiolothionate.

(E) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidic

dihalides.

(F) Dialkyl (Me, Et, n-Pr or i-Pr) N,N-dialkyl (Me, Et, n-Pr or

i-Pr)-phosphoramidates.

(G) arsenic trichloride.

(H) 2,2-Diphenyl-2-hydroxyacetic acid.

(I) Quinuclidine-3-ol.

(J) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl-2-chlorides

and corresponding protonated salts.

(K) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-ols and

corresponding protonated salts

Exemptions: N,N-Dimethylaminoethanol and corresponding

protonated salts N,N-Diethylaminoethanol and corresponding

protonated salts.

(L) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-thiols and

corresponding protonated salts.

(M) Thiodiglycol: Bis(2-hydroxyethyl)sulfide.

(N) Pinacolyl alcohol: 3,3-Dimethylbutane-2-ol.

(12) SCHEDULE 3 CHEMICAL AGENT.—The term ‘‘Schedule 3

chemical agent’’ means any of the following, together or separately:

(A) Phosgene: carbonyl dichloride.

(B) Cyanogen chloride.
Sec. 3 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION 292

1Margin so in law.

(C) Hydrogen cyanide.

(D) Chloropicrin: trichloronitromethane.

(E) Phosphorous oxychloride.

(F) Phosphorous trichloride.

(G) Phosphorous pentachloride.

(H) Trimethyl phosphite.

(I) Triethyl phosphite.

(J) Dimethyl phosphite.

(K) Diethyl phosphite.

(L) Sulfur monochloride.

(M) Sulfur dichloride.

(N) Thionyl chloride.

(O) Ethyldiethanolamine.

(P) Methyldiethanolamine.

(Q) Triethanolamine.

(13) 1 TOXIC CHEMICAL.—

(A) 1 IN GENERAL.—The term ‘‘toxic chemical’’ means any chemical which through its chemical action on life processes can cause

death, temporary incapacitation or permanent harm to humans or

animals. The term includes all such chemicals, regardless of their

origin or of their method of production, and regardless of whether

they are produced in facilities, in munitions or elsewhere.

(B) LIST OF TOXIC CHEMICALS.—Toxic chemicals which

have been identified for the application of verification

measures under Article VI of the Convention are listed in

schedules contained in the Annex on Chemicals of the

Chemical Weapons Convention.

(14) UNITED STATES.—The term ‘‘United States’’ means the

several States of the United States, the District of Columbia,

and the commonwealths, territories, and possessions of the

United States and includes all places under the jurisdiction or

control of the United States, including—

(A) any of the places within the provisions of paragraph (41) of section 40102 of title 49, United States Code;

(B) any civil aircraft of the United States or public aircraft, as such terms are defined in paragraphs (17) and

(37), respectively, of section 40102 of title 49, United

States Code; and

(C) any vessel of the United States, as such term is defined in section 3(b) of the Maritime Drug Enforcement

Act, as amended (46 U.S.C., App. sec. 1903(b)).

(15) UNSCHEDULED DISCRETE ORGANIC CHEMICAL.—The

term ‘‘unscheduled discrete organic chemical’’ means any chemical not listed on any schedule contained in the Annex on

Chemicals of the Convention that belongs to the class of chemical compounds consisting of all compounds of carbon, except

for its oxides, sulfides, and metal carbonates.
293 Sec. 103 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION

TITLE I—GENERAL PROVISIONS

SEC. 101. ø22 U.S.C. 6711¿ DESIGNATION OF UNITED STATES NATIONAL

AUTHORITY.

(a) DESIGNATION.—Pursuant to paragraph 4 of Article VII of

the Chemical Weapons Convention, the President shall designate

the Department of State to be the United States National Authority.

(b) PURPOSES.—The United States National Authority shall—

(1) serve as the national focal point for effective liaison

with the Organization for the Prohibition of Chemical Weapons

and other States Parties to the Convention; and

(2) implement the provisions of this Act in coordination

with an interagency group designated by the President consisting of the Secretary of Commerce, Secretary of Defense,

Secretary of Energy, the Attorney General, and the heads of

agencies considered necessary or advisable by the President.

(c) DIRECTOR.—The Secretary of State shall serve as the Director of the United States National Authority.

(d) POWERS.—The Director may utilize the administrative authorities otherwise available to the Secretary of State in carrying

out the responsibilities of the Director set forth in this Act.

(e) IMPLEMENTATION.—The President is authorized to implement and carry out the provisions of this Act and the Convention

and shall designate through Executive order which agencies of the

United States shall issue, amend, or revise the regulations in order

to implement this Act and the provisions of the Convention. The

Director of the United States National Authority shall report to the

Congress on the regulations that have been issued, implemented,

or revised pursuant to this section.

SEC. 102. ø22 U.S.C. 6712¿ NO ABRIDGEMENT OF CONSTITUTIONAL

RIGHTS.

No person may be required, as a condition for entering into a

contract with the United States or as a condition for receiving any

benefit from the United States, to waive any right under the Constitution for any purpose related to this Act or the Convention.

SEC. 103. ø22 U.S.C. 6713¿ CIVIL LIABILITY OF THE UNITED STATES.

(a) CLAIMS FOR TAKING OF PROPERTY.—

(1) JURISDICTION OF COURTS OF THE UNITED STATES.—

(A) UNITED STATES COURT OF FEDERAL CLAIMS.—The

United States Court of Federal Claims shall, subject to

subparagraph (B), have jurisdiction of any civil action or

claim against the United States for any taking of property

without just compensation that occurs by reason of the action of any officer or employee of the Organization for the

Prohibition of Chemical Weapons, including any member

of an inspection team of the Technical Secretariat, or by

reason of the action of any officer or employee of the

United States pursuant to this Act or the Convention. For

purposes of this subsection, action taken pursuant to or

under the color of this Act or the Convention shall be

deemed to be action taken by the United States for a public purpose.
Sec. 103 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION 294

(B) DISTRICT COURTS.—The district courts of the

United States shall have original jurisdiction, concurrent

with the United States Court of Federal Claims, of any

civil action or claim described in subparagraph (A) that

does not exceed $10,000.

(2) NOTIFICATION.—Any person intending to bring a civil

action pursuant to paragraph (1) shall notify the United States

National Authority of that intent at least one year before filing

the claim in the United States Court of Federal Claims. Action

on any claim filed during that one-year period shall be stayed.

The one-year period following the notification shall not be

counted for purposes of any law limiting the period within

which the civil action may be commenced.

(3) INITIAL STEPS BY UNITED STATES GOVERNMENT TO SEEK

REMEDIES.—During the period between a notification pursuant

to paragraph (2) and the filing of a claim covered by the notification in the United States Court of Federal Claims, the

United States National Authority shall pursue all diplomatic

and other remedies that the United States National Authority

considers necessary and appropriate to seek redress for the

claim including, but not limited to, the remedies provided for

in the Convention and under this Act.

(4) BURDEN OF PROOF.—In any civil action under paragraph (1), the plaintiff shall have the burden to establish a

prima facie case that, due to acts or omissions of any official

of the Organization or any member of an inspection team of

the Technical Secretariat taken under the color of the Convention, proprietary information of the plaintiff has been divulged

or taken without authorization. If the United States Court of

Federal Claims finds that the plaintiff has demonstrated such

a prima facie case, the burden shall shift to the United States

to disprove the plaintiff’s claim. In deciding whether the plaintiff has carried its burden, the United States Court of Federal

Claims shall consider, among other things—

(A) the value of proprietary information;

(B) the availability of the proprietary information;

(C) the extent to which the proprietary information is

based on patents, trade secrets, or other protected intellectual property;

(D) the significance of proprietary information; and

(E) the emergence of technology elsewhere a reasonable time after the inspection.

(b) TORT LIABILITY.—The district courts of the United States

shall have exclusive jurisdiction of civil actions for money damages

for any tort under the Constitution or any Federal or State law

arising from the acts or omissions of any officer or employee of the

United States or the Organization, including any member of an inspection team of the Technical Secretariat, taken pursuant to or

under color of the Convention or this Act.

(c) WAIVER OF SOVEREIGN IMMUNITY OF THE UNITED STATES.—

In any action under subsection (a) or (b), the United States may

not raise sovereign immunity as a defense.

(d) AUTHORITY FOR CAUSE OF ACTION.—
295 Sec. 103 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION

(1) UNITED STATES ACTIONS IN UNITED STATES DISTRICT

COURT.—Notwithstanding any other law, the Attorney General

of the United States is authorized to bring an action in the

United States District Court for the District of Columbia

against any foreign nation for money damages resulting from

that nation’s refusal to provide indemnification to the United

States for any liability imposed on the United States by virtue

of the actions of an inspector of the Technical Secretariat who

is a national of that foreign nation acting at the direction or

the behest of that foreign nation.

(2) UNITED STATES ACTIONS IN COURTS OUTSIDE THE

UNITED STATES.—The Attorney General is authorized to seek

any and all available redress in any international tribunal for

indemnification to the United States for any liability imposed

on the United States by virtue of the actions of an inspector

of the Technical Secretariat, and to seek such redress in the

courts of the foreign nation from which the inspector is a national.

(3) ACTIONS BROUGHT BY INDIVIDUALS AND BUSINESSES.— Notwithstanding any other law, any national of the United

States, or any business entity organized and operating under

the laws of the United States, may bring a civil action in a

United States District Court for money damages against any

foreign national or any business entity organized and operating

under the laws of a foreign nation for an unauthorized or unlawful acquisition, receipt, transmission, or use of property by

or on behalf of such foreign national or business entity as a result of any tort under the Constitution or any Federal or State

law arising from acts or omissions by any officer or employee

of the United States or any member of an inspection team of

the Technical Secretariat taken pursuant to or under the color

of the Convention or this Act.

(e) RECOUPMENT.—

(1) POLICY.—It is the policy of the United States to recoup

all funds withdrawn from the Treasury of the United States in

payment for any tort under Federal or State law or taking

under the Constitution arising from the acts or omissions of

any foreign person, officer, or employee of the Organization, including any member of an inspection team of the Technical

Secretariat, taken under color of the Chemical Weapons Convention or this Act.

(2) SANCTIONS ON FOREIGN COMPANIES.—

(A) IMPOSITION OF SANCTIONS.—The sanctions provided in subparagraph (B) shall be imposed for a period of

not less than ten years upon—

(i) any foreign person, officer, or employee of the

Organization, including any member of an inspection

team of the Technical Secretariat, for whose actions or

omissions the United States has been held liable for a

tort or taking pursuant to this Act; and

(ii) any foreign person or business entity organized and operating under the laws of a foreign nation

which knowingly assisted, encouraged or induced, in

any way, a foreign person described in clause (i) to
Sec. 103 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION 296

publish, divulge, disclose, or make known in any manner or to any extent not authorized by the Convention

any United States confidential business information.

(B) SANCTIONS.— (i) ARMS EXPORT TRANSACTIONS.—The United

States Government shall not sell to a person described

in subparagraph (A) any item on the United States

Munitions List and shall terminate sales of any defense articles, defense services, or design and construction services to a person described in subparagraph

(A) under the Arms Export Control Act.

(ii) SANCTIONS UNDER EXPORT ADMINISTRATION ACT

OF 1979.—The authorities under section 6 of the Export

Administration Act of 1979 shall be used to prohibit

the export of any goods or technology on the control

list established pursuant to section 5(c)(1) of that Act

to a person described in subparagraph (A).

(iii) INTERNATIONAL FINANCIAL ASSISTANCE.—The

United States shall oppose any loan or financial or

technical assistance by international financial institutions in accordance with section 701 of the International Financial Institutions Act to a person described in subparagraph (A).

(iv) EXPORT-IMPORT BANK TRANSACTIONS.—The

United States shall not give approval to guarantee, insure, or extend credit, or to participate in the extension of credit to a person described in subparagraph

(A) through the Export-Import Bank of the United

States.

(v) PRIVATE BANK TRANSACTIONS.—Regulations

shall be issued to prohibit any United States bank

from making any loan or providing any credit to a person described in subparagraph (A).

(vi) BLOCKING OF ASSETS.—The President shall

take all steps necessary to block any transactions in

any property subject to the jurisdiction of the United

States in which a person described in subparagraph

(A) has any interest whatsoever, for the purpose of recouping funds in accordance with the policy in paragraph (1).

(vii) DENIAL OF LANDING RIGHTS.—Landing rights

in the United States shall be denied to any private aircraft or air carrier owned by a person described in

subparagraph (A) except as necessary to provide for

emergencies in which the safety of the aircraft or its

crew or passengers is threatened.

(3) SANCTIONS ON FOREIGN GOVERNMENTS.—

(A) IMPOSITION OF SANCTIONS.—Whenever the President determines that persuasive information is available

indicating that a foreign country has knowingly assisted,

encouraged or induced, in any way, a person described in

paragraph (2)(A) to publish, divulge, disclose, or make

known in any manner or to any extent not authorized by

the Convention any United States confidential business in-
297 Sec. 103 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION

formation, the President shall, within 30 days after the receipt of such information by the executive branch of Government, notify the Congress in writing of such determination and, subject to the requirements of paragraphs (4) and

(5), impose the sanctions provided under subparagraph (B)

for a period of not less than five years.

(B) SANCTIONS.— (i) ARMS EXPORT TRANSACTIONS.—The United

States Government shall not sell a country described

in subparagraph (A) any item on the United States

Munitions List, shall terminate sales of any defense

articles, defense services, or design and construction

services to that country under the Arms Export Control Act, and shall terminate all foreign military financing for that country under the Arms Export Control Act.

(ii) DENIAL OF CERTAIN LICENSES.—Licenses shall

not be issued for the export to the sanctioned country

of any item on the United States Munitions List or

commercial satellites.

(iii) DENIAL OF ASSISTANCE.—No appropriated

funds may be used for the purpose of providing economic assistance, providing military assistance or

grant military education and training, or extending

military credits or making guarantees to a country described in subparagraph (A).

(iv) SANCTIONS UNDER EXPORT ADMINISTRATION

ACT OF 1979.—The authorities of section 6 of the Export Administration Act of 1979 shall be used to prohibit the export of any goods or technology on the control list established pursuant to section 5(c)(1) of that

Act to a country described in subparagraph (A).

(v) INTERNATIONAL FINANCIAL ASSISTANCE.—The

United States shall oppose any loan or financial or

technical assistance by international financial institutions in accordance with section 701 of the International Financial Institutions Act to a country described in subparagraph (A).

(vi) TERMINATION OF ASSISTANCE UNDER FOREIGN

ASSISTANCE ACT OF 1961.—The United States shall terminate all assistance to a country described in subparagraph (A) under the Foreign Assistance Act of

1961, except for urgent humanitarian assistance.

(vii) PRIVATE BANK TRANSACTIONS.—The United

States shall not give approval to guarantee, insure, or

extend credit, or participate in the extension of credit

through the Export-Import Bank of the United States

to a country described in subparagraph (A).

(viii) PRIVATE BANK TRANSACTIONS.—Regulations

shall be issued to prohibit any United States bank

from making any loan or providing any credit to a

country described in subparagraph (A).

(ix) DENIAL OF LANDING RIGHTS.—Landing rights

in the United States shall be denied to any air carrier
Sec. 103 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION 298

owned by a country described in subparagraph (A), except as necessary to provide for emergencies in which

the safety of the aircraft or its crew or passengers is

threatened.

(4) SUSPENSION OF SANCTIONS UPON RECOUPMENT BY PAYMENT.—Sanctions imposed under paragraph (2) or (3) may be

suspended if the sanctioned person, business entity, or country,

within the period specified in that paragraph, provides full and

complete compensation to the United States Government, in

convertible foreign exchange or other mutually acceptable compensation equivalent to the full value thereof, in satisfaction of

a tort or taking for which the United States has been held liable pursuant to this Act.

(5) WAIVER OF SANCTIONS ON FOREIGN COUNTRIES.—The

President may waive some or all of the sanctions provided

under paragraph (3) in a particular case if he determines and

certifies in writing to the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate

that such waiver is necessary to protect the national security

interests of the United States. The certification shall set forth

the reasons supporting the determination and shall take effect

on the date on which the certification is received by the Congress.

(6) NOTIFICATION TO CONGRESS.—Not later than five days

after sanctions become effective against a foreign person pursuant to this Act, the President shall transmit written notification of the imposition of sanctions against that foreign person

to the chairmen and ranking members of the Committee on

International Relations of the House of Representatives and

the Committee on Foreign Relations of the Senate.

(f) SANCTIONS FOR UNAUTHORIZED DISCLOSURE OF UNITED

STATES CONFIDENTIAL BUSINESS INFORMATION.—The Secretary of

State shall deny a visa to, and the Attorney General shall exclude

from the United States any alien who, after the date of enactment

of this Act—

(1) is, or previously served as, an officer or employee of the

Organization and who has willfully published, divulged, disclosed, or made known in any manner or to any extent not authorized by the Convention any United States confidential

business information coming to him in the course of his employment or official duties, or by reason of any examination or

investigation of any return, report, or record made to or filed

with the Organization, or any officer or employee thereof, such

practice or disclosure having resulted in financial losses or

damages to a United States person and for which actions or

omissions the United States has been found liable of a tort or

taking pursuant to this Act;

(2) traffics in United States confidential business information, a proven claim to which is owned by a United States national;

(3) is a corporate officer, principal, shareholder with a controlling interest of an entity which has been involved in the

unauthorized disclosure of United States confidential business
299 Sec. 301 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION

information, a proven claim to which is owned by a United

States national; or

(4) is a spouse, minor child, or agent of a person excludable

under paragraph (1), (2), or (3).

(g) UNITED STATES CONFIDENTIAL BUSINESS INFORMATION DEFINED.—In this section, the term ‘‘United States confidential business information’’ means any trade secrets or commercial or financial information that is privileged and confidential—

(1) including—

(A) data described in section 304(e)(2) of this Act,

(B) any chemical structure,

(C) any plant design process, technology, or operating

method,

(D) any operating requirement, input, or result that

identifies any type or quantity of chemicals used, processed, or produced, or

(E) any commercial sale, shipment, or use of a chemical, or

(2) as described in section 552(b)(4) of title 5, United

States Code,

and that is obtained—

(i) from a United States person; or

(ii) through the United States Government or the conduct of an

inspection on United States territory under the Convention.

TITLE II—PENALTIES FOR UNLAWFUL ACTIVITIES SUBJECT TO THE JURISDICTION OF THE UNITED STATES

Subtitle A—Criminal and Civil Penalties

SEC. 201. CRIMINAL AND CIVIL PROVISIONS.

[Omitted-Amendments]

Subtitle B—Revocations of Export Privileges

SEC. 211. ø18 U.S.C. 229 note¿ REVOCATIONS OF EXPORT PRIVILEGES.

If the President determines, after notice and an opportunity for

a hearing in accordance with section 554 of title 5, United States

Code, that any person within the United States, or any national of

the United States located outside the United States, has committed

any violation of section 229 of title 18, United States Code, the

President may issue an order for the suspension or revocation of

the authority of the person to export from the United States any

goods or technology (as such terms are defined in section 16 of the

Export Administration Act of 1979 (50 U.S.C. App. 2415)).

TITLE III—INSPECTIONS

SEC. 301. ø22 U.S.C. 6721¿ DEFINITIONS IN THE TITLE.

(a) IN GENERAL.—In this title, the terms ‘‘challenge inspection’’, ‘‘plant site’’, ‘‘plant’’, ‘‘facility agreement’’, ‘‘inspection team’’,

and ‘‘requesting state party’’ have the meanings given those terms

in Part I of the Annex on Implementation and Verification of the

Chemical Weapons Convention. The term ‘‘routine inspection’’
Sec. 302 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION 300

means an inspection, other than an ‘‘initial inspection’’, undertaken

pursuant to Article VI of the Convention.

(b) DEFINITION OF JUDGE OF THE UNITED STATES.—In this title,

the term ‘‘judge of the United States’’ means a judge or magistrate

judge of a district court of the United States.

SEC. 302. ø22 U.S.C. 6722¿ FACILITY AGREEMENTS.

(a) AUTHORIZATION OF INSPECTIONS.—Inspections by the Technical Secretariat of plants, plant sites, or other facilities or locations for which the United States has a facility agreement with the

Organization shall be conducted in accordance with the facility

agreement. Any such facility agreement may not in any way limit

the right of the owner or operator of the facility to withhold consent to an inspection request.

(b) TYPES OF FACILITY AGREEMENTS.—

(1) SCHEDULE TWO FACILITIES.—The United States National Authority shall ensure that facility agreements for

plants, plant sites, or other facilities or locations that are subject to inspection pursuant to paragraph 4 of Article VI of the

Convention are concluded unless the owner, operator, occupant, or agent in charge of the facility and the Technical Secretariat agree that such an agreement is not necessary.

(2) SCHEDULE THREE FACILITIES.—The United States National Authority shall ensure that facility agreements are concluded for plants, plant sites, or other facilities or locations

that are subject to inspection pursuant to paragraph 5 or 6 of

Article VI of the Convention if so requested by the owner, operator, occupant, or agent in charge of the facility.

(c) NOTIFICATION REQUIREMENTS.—The United States National

Authority shall ensure that the owner, operator, occupant, or agent

in charge of a facility prior to the development of the agreement

relating to that facility is notified and, if the person notified so requests, the person may participate in the preparations for the negotiation of such an agreement. To the maximum extent practicable

consistent with the Convention, the owner and the operator, occupant or agent in charge of a facility may observe negotiations of the

agreement between the United States and the Organization concerning that facility.

(d) CONTENT OF FACILITY AGREEMENTS.—Facility agreements

shall—

(1) identify the areas, equipment, computers, records, data,

and samples subject to inspection;

(2) describe the procedures for providing notice of an inspection to the owner, occupant, operator, or agent in charge

of a facility;

(3) describe the timeframes for inspections; and

(4) detail the areas, equipment, computers, records, data,

and samples that are not subject to inspection.

SEC. 303. ø22 U.S.C. 6723¿ AUTHORITY TO CONDUCT INSPECTIONS.

(a) PROHIBITION.—No inspection of a plant, plant site, or other

facility or location in the United States shall take place under the

Convention without the authorization of the United States National Authority in accordance with the requirements of this title.

(b) AUTHORITY.—
301 Sec. 304 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION

(1) TECHNICAL SECRETARIAT INSPECTION TEAMS.—Any duly

designated member of an inspection team of the Technical Secretariat may inspect any plant, plant site, or other facility or

location in the United States subject to inspection pursuant to

the Convention.

(2) UNITED STATES GOVERNMENT REPRESENTATIVES.—The

United States National Authority shall coordinate the designation of employees of the Federal Government (and, in the case

of an inspection of a United States Government facility, the

designation of contractor personnel who shall be led by an employee of the Federal Government) to accompany members of

an inspection team of the Technical Secretariat and, in doing

so, shall ensure that—

(A) a special agent of the Federal Bureau of Investigation, as designated by the Federal Bureau of Investigation,

accompanies each inspection team visit pursuant to paragraph (1);

(B) no employee of the Environmental Protection

Agency or the Occupational Safety and Health Administration accompanies any inspection team visit conducted pursuant to paragraph (1); and

(C) the number of duly designated representatives

shall be kept to the minimum necessary.

(3) OBJECTIONS TO INDIVIDUALS SERVING AS INSPECTORS.—

(A) IN GENERAL.—In deciding whether to exercise the

right of the United States under the Convention to object

to an individual serving as an inspector, the President

shall give great weight to his reasonable belief that—

(i) such individual is or has been a member of, or

a participant in, any group or organization that has

engaged in, or attempted or conspired to engage in, or

aided or abetted in the commission of, any terrorist act

or activity;

(ii) such individual has committed any act or activity which would be a felony under the laws of the

United States; or

(iii) the participation of such individual as a member of an inspection team would pose a risk to the national security or economic well-being of the United

States.

(B) NOT SUBJECT TO JUDICIAL REVIEW.—Any objection

by the President to an individual serving as an inspector,

whether made pursuant to this section or otherwise, shall

not be reviewable in any court.

SEC. 304. ø22 U.S.C. 6724¿ PROCEDURES FOR INSPECTIONS.

(a) TYPES OF INSPECTIONS.—Each inspection of a plant,

plant site, or other facility or location in the United States

under the Convention shall be conducted in accordance with

this section and section 305, except where other procedures are

provided in a facility agreement entered into under section

302.

(b) NOTICE.—
Sec. 304 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION 302

(1) IN GENERAL.—An inspection referred to in subsection

(a) may be made only upon issuance of an actual written notice

by the United States National Authority to the owner and to

the operator, occupant, or agent in charge of the premises to

be inspected.

(2) TIME OF NOTIFICATION.—The notice for a routine inspection shall be submitted to the owner and to the operator,

occupant, or agent in charge within six hours of receiving the

notification of the inspection from the Technical Secretariat or

as soon as possible thereafter. Notice for a challenge inspection

shall be provided at any appropriate time determined by the

United States National Authority. Notices may be posted

prominently at the plant, plant site, or other facility or location

if the United States is unable to provide actual written notice

to the owner, operator, or agent in charge of the premises.

(3) CONTENT OF NOTICE.— (A) IN GENERAL.—The notice under paragraph (1) shall

include all appropriate information supplied by the Technical Secretariat to the United States National Authority

concerning—

(i) the type of inspection;

(ii) the basis for the selection of the plant, plant

site, or other facility or location for the type of inspection sought;

(iii) the time and date that the inspection will

begin and the period covered by the inspection; and

(iv) the names and titles of the inspectors.

(B) SPECIAL RULE FOR CHALLENGE INSPECTIONS.—In

the case of a challenge inspection pursuant to Article IX of

the Convention, the notice shall also include all appropriate evidence or reasons provided by the requesting state

party to the Convention for seeking the inspection.

(4) SEPARATE NOTICES REQUIRED.—A separate notice shall

be provided for each inspection, except that a notice shall not

be required for each entry made during the period covered by

the inspection.

(c) CREDENTIALS.—The head of the inspection team of the

Technical Secretariat and the accompanying employees of the Federal Government (and, in the case of an inspection of a United

States Government facility, any accompanying contractor personnel) shall display appropriate identifying credentials to the

owner, operator, occupant, or agent in charge of the premises before the inspection is commenced.

(d) TIMEFRAME FOR INSPECTIONS.—Consistent with the provisions of the Convention, each inspection shall be commenced and

completed with reasonable promptness and shall be conducted at

reasonable times, within reasonable limits, and in a reasonable

manner.

(e) SCOPE.—

(1) IN GENERAL.—Except as provided in a warrant issued

under section 305 or a facility agreement entered into under

section 302, an inspection conducted under this title may extend to all things within the premises inspected (including

records, files, papers, processes, controls, structures and vehi-
303 Sec. 305 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION

cles) related to whether the requirements of the Convention

applicable to such premises have been complied with.

(2) EXCEPTION.—Unless required by the Convention, no inspection under this title shall extend to—

(A) financial data;

(B) sales and marketing data (other than shipment

data);

(C) pricing data;

(D) personnel data;

(E) research data;

(F) patent data;

(G) data maintained for compliance with environmental or occupational health and safety regulations; or

(H) personnel and vehicles entering and personnel and

personal passenger vehicles exiting the facility.

(f) SAMPLING AND SAFETY.—

(1) IN GENERAL.—The Director of the United States National Authority is authorized to require the provision of samples to a member of the inspection team of the Technical Secretariat in accordance with the provisions of the Convention. The

owner or the operator, occupant or agent in charge of the

premises to be inspected shall determine whether the sample

shall be taken by representatives of the premises or the inspection team or other individuals present. No sample collected in

the United States pursuant to an inspection permitted by this

Act may be transferred for analysis to any laboratory outside

the territory of the United States.

(2) COMPLIANCE WITH REGULATIONS.—In carrying out their

activities, members of the inspection team of the Technical Secretariat and representatives of agencies or departments accompanying the inspection team shall observe safety regulations

established at the premises to be inspected, including those for

protection of controlled environments within a facility and for

personal safety.

(g) COORDINATION.—The appropriate representatives of the

United States, as designated, if present, shall assist the owner and

the operator, occupant or agent in charge of the premises to be inspected in interacting with the members of the inspection team of

the Technical Secretariat.

SEC. 305. ø22 U.S.C. 6725¿ WARRANTS.

(a) IN GENERAL.—The United States Government shall seek

the consent of the owner or the operator, occupant, or agent in

charge of the premises to be inspected prior to any inspection referred to in section 304(a). If consent is obtained, a warrant is not

required for the inspection. The owner or the operator, occupant,

or agent in charge of the premises to be inspected may withhold

consent for any reason or no reason. After providing notification

pursuant to subsection (b), the United States Government may

seek a search warrant from a United States magistrate judge. Proceedings regarding the issuance of a search warrant shall be conducted ex parte, unless otherwise requested by the United States

Government.

(b) ROUTINE INSPECTIONS.—
Sec. 305 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION 304

(1) OBTAINING ADMINISTRATIVE SEARCH WARRANTS.—For

any routine inspection conducted on the territory of the United

States pursuant to Article VI of the Convention, where consent

has been withheld, the United States Government shall first

obtain an administrative search warrant from a judge of the

United States. The United States Government shall provide to

the judge of the United States all appropriate information supplied by the Technical Secretariat to the United States National Authority regarding the basis for the selection of the

plant site, plant, or other facility or location for the type of inspection sought. The United States Government shall also provide any other appropriate information available to it relating

to the reasonableness of the selection of the plant, plant site,

or other facility or location for the inspection.

(2) CONTENT OF AFFIDAVITS FOR ADMINISTRATIVE SEARCH

WARRANTS.—The judge of the United States shall promptly

issue a warrant authorizing the requested inspection upon an

affidavit submitted by the United States Government showing

that—

(A) the Chemical Weapons Convention is in force for

the United States;

(B) the plant site, plant, or other facility or location

sought to be inspected is required to report data under

title IV of this Act and is subject to routine inspection

under the Convention;

(C) the purpose of the inspection is—

(i) in the case of any facility owned or operated by

a non-Government entity related to Schedule 1 chemical agents, to verify that the facility is not used to

produce any Schedule 1 chemical agent except for declared chemicals; quantities of Schedule 1 chemicals

produced, processed, or consumed are correctly declared and consistent with needs for the declared purpose; and Schedule 1 chemicals are not diverted or

used for other purposes;

(ii) in the case of any facility related to Schedule

2 chemical agents, to verify that activities are in accordance with obligations under the Convention and

consistent with the information provided in data declarations; and

(iii) in the case of any facility related to Schedule

3 chemical agents and any other chemical production

facility, to verify that the activities of the facility are

consistent with the information provided in data declarations;

(D) the items, documents, and areas to be searched

and seized;

(E) in the case of a facility related to Schedule 2 or

Schedule 3 chemical agents or unscheduled discrete organic chemicals, the plant site has not been subject to

more than 1 routine inspection in the current calendar

year, and, in the case of facilities related to Schedule 3

chemical agents or unscheduled discrete organic chemicals,
305 Sec. 305 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION

the inspection will not cause the number of routine inspections in the United States to exceed 20 in a calendar year;

(F) the selection of the site was made in accordance

with procedures established under the Convention and, in

particular—

(i) in the case of any facility owned or operated by

a non-Government entity related to Schedule 1 chemical agents, the intensity, duration, timing, and mode

of the requested inspection is based on the risk to the

object and purpose of the Convention by the quantities

of chemical produced, the characteristics of the facility

and the nature of activities carried out at the facility,

and the requested inspection, when considered with

previous such inspections of the facility undertaken in

the current calendar year, shall not exceed the number reasonably required based on the risk to the object

and purpose of the Convention as described above;

(ii) in the case of any facility related to Schedule

2 chemical agents, the Technical Secretariat gave due

consideration to the risk to the object and purpose of

the Convention posed by the relevant chemical, the

characteristics of the plant site and the nature of activities carried out there, taking into account the respective facility agreement as well as the results of the

initial inspections and subsequent inspections; and

(iii) in the case of any facility related to Schedule

3 chemical agents or unscheduled discrete organic

chemicals, the facility was selected randomly by the

Technical Secretariat using appropriate mechanisms,

such as specifically designed computer software, on

the basis of two weighting factors: (I) equitable geographical distribution of inspections; and (II) the information on the declared sites available to the Technical

Secretariat, related to the relevant chemical, the characteristics of the plant site, and the nature of activities carried out there;

(G) the earliest commencement and latest closing

dates and times of the inspection; and

(H) the duration of inspection will not exceed time limits specified in the Convention unless agreed by the owner,

operator, or agent in charge of the plant.

(3) CONTENT OF WARRANTS.—A warrant issued under paragraph (2) shall specify the same matters required of an affidavit under that paragraph. In addition to the requirements

for a warrant issued under this paragraph, each warrant shall

contain, if known, the identities of the representatives of the

Technical Secretariat conducting the inspection and the observers of the inspection and, if applicable, the identities of the representatives of agencies or departments of the United States

accompanying those representatives.

(4) CHALLENGE INSPECTIONS.—

(A) CRIMINAL SEARCH WARRANT.—For any challenge

inspection conducted on the territory of the United States

pursuant to Article IX of the Chemical Weapons Conven-
Sec. 305 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION 306

tion, where consent has been withheld, the United States

Government shall first obtain from a judge of the United

States a criminal search warrant based upon probable

cause, supported by oath or affirmation, and describing

with particularity the place to be searched and the person

or things to be seized.

(B) INFORMATION PROVIDED.—The United States Government shall provide to the judge of the United States—

(i) all appropriate information supplied by the

Technical Secretariat to the United States National

Authority regarding the basis for the selection of the

plant site, plant, or other facility or location for the

type of inspection sought;

(ii) any other appropriate information relating to

the reasonableness of the selection of the plant, plant

site, or other facility or location for the inspection;

(iii) information concerning—

(I) the duration and scope of the inspection;

(II) areas to be inspected;

(III) records and data to be reviewed; and

(IV) samples to be taken;

(iv) appropriate evidence or reasons provided by

the requesting state party for the inspection;

(v) any other evidence showing probable cause to

believe that a violation of this Act has occurred or is

occurring; and

(vi) the identities of the representatives of the

Technical Secretariat on the inspection team and the

Federal Government employees accompanying the inspection team.

(C) CONTENT OF WARRANT.—The warrant shall

specify—

(i) the type of inspection authorized;

(ii) the purpose of the inspection;

(iii) the type of plant site, plant, or other facility

or location to be inspected;

(iv) the areas of the plant site, plant, or other facility or location to be inspected;

(v) the items, documents, data, equipment, and

computers that may be inspected or seized;

(vi) samples that may be taken;

(vii) the earliest commencement and latest concluding dates and times of the inspection; and

(viii) the identities of the representatives of the

Technical Secretariat on the inspection teams and the

Federal Government employees accompanying the inspection team.

SEC. 306. ø22 U.S.C. 6726¿ PROHIBITED ACTS RELATING TO INSPECTIONS.

It shall be unlawful for any person willfully to fail or refuse to

permit entry or inspection, or to disrupt, delay, or otherwise impede an inspection, authorized by this Act.
307 Sec. 310 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION

SEC. 307. ø22 U.S.C. 6727¿ NATIONAL SECURITY EXCEPTION.

Consistent with the objective of eliminating chemical weapons,

the President may deny a request to inspect any facility in the

United States in cases where the President determines that the inspection may pose a threat to the national security interests of the

United States.

SEC. 308. PROTECTION OF CONSTITUTIONAL RIGHTS OF CONTRACTORS.

[Omitted-Amendments]

SEC. 309. ø22 U.S.C. 6728¿ ANNUAL REPORT ON INSPECTIONS.

(a) IN GENERAL.—Not later than one year after the date of enactment of this Act, and annually thereafter, the President shall

submit a report in classified and unclassified form to the appropriate congressional committees on inspections made under the

Convention during the preceding year.

(b) CONTENT OF REPORTS.—Each report shall contain the following information for the reporting period:

(1) The name of each company or entity subject to the jurisdiction of the United States reporting data pursuant to title

IV of this Act.

(2) The number of inspections under the Convention conducted on the territory of the United States.

(3) The number and identity of inspectors conducting any

inspection described in paragraph (2) and the number of inspectors barred from inspection by the United States.

(4) The cost to the United States for each inspection described in paragraph (2).

(5) The total costs borne by United States business firms

in the course of inspections described in paragraph (2).

(6) A description of the circumstances surrounding inspections described in paragraph (2), including instances of possible

industrial espionage and misconduct of inspectors.

(7) The identity of parties claiming loss of trade secrets,

the circumstances surrounding those losses, and the efforts

taken by the United States Government to redress those

losses.

(8) A description of instances where inspections under the

Convention outside the United States have been disrupted or

delayed.

(c) DEFINITION.—The term ‘‘appropriate congressional committees’’ means the Committee on the Judiciary, the Committee on

Foreign Relations, and the Select Committee on Intelligence of the

Senate and the Committee on the Judiciary, the Committee on

International Relations, and the Permanent Select Committee on

Intelligence of the House of Representatives.

SEC. 310. ø22 U.S.C. 6729¿ UNITED STATES ASSISTANCE IN INSPECTIONS AT PRIVATE FACILITIES.

(a) ASSISTANCE IN PREPARATION FOR INSPECTIONS.—At the request of an owner of a facility not owned or operated by the United

States Government, or contracted for use by or for the United

States Government, the Secretary of Defense may assist the facility

to prepare the facility for possible inspections pursuant to the Convention.
Sec. 401 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION 308

(b) REIMBURSEMENT REQUIREMENT.—

(1) IN GENERAL.—Except as provided in paragraph (2), the

owner of a facility provided assistance under subsection (a)

shall reimburse the Secretary for the costs incurred by the Secretary in providing the assistance.

(2) EXCEPTION.—In the case of assistance provided under

subsection (a) to a facility owned by a person described in subsection (c), the United States National Authority shall reimburse the Secretary for the costs incurred by the Secretary in

providing the assistance.

(c) OWNERS COVERED BY UNITED STATES NATIONAL AUTHORITY

REIMBURSEMENTS.—Subsection (b)(2) applies in the case of assistance provided to the following:

(1) SMALL BUSINESS CONCERNS.—A small business concern

as defined in section 3 of the Small Business Act.

(2) DOMESTIC PRODUCERS OF SCHEDULE 3 OR UNSCHEDULED

DISCRETE ORGANIC CHEMICALS.—Any person located in the

United States that—

(A) does not possess, produce, process, consume, import, or export any Schedule 1 or Schedule 2 chemical; and

(B) in the calendar year preceding the year in which

the assistance is to be provided, produced—

(i) more than 30 metric tons of Schedule 3 or unscheduled discrete organic chemicals that contain

phosphorous, sulfur, or fluorine; or

(ii) more than 200 metric tons of unscheduled discrete organic chemicals.

TITLE IV—REPORTS

SEC. 401. ø22 U.S.C. 6741¿ REPORTS REQUIRED BY THE UNITED STATES

NATIONAL AUTHORITY.

(a) REGULATIONS ON RECORDKEEPING.—

(1) REQUIREMENTS.—The United States National Authority

shall ensure that regulations are prescribed that require each

person located in the United States who produces, processes,

consumes, exports, or imports, or proposes to produce, process,

consume, export, or import, a chemical substance that is subject to the Convention to—

(A) maintain and permit access to records related to

that production, processing, consumption, export, or import

of such substance; and

(B) submit to the Director of the United States National Authority such reports as the United States National Authority may reasonably require to provide to the

Organization, pursuant to subparagraph 1(a) of the Annex

on Confidentiality of the Convention, the minimum

amount of information and data necessary for the timely

and efficient conduct by the Organization of its responsibilities under the Convention.

(2) RULEMAKING.—The Director of the United States National Authority shall ensure that regulations pursuant to this

section are prescribed expeditiously.

(b) COORDINATION.—
309 Sec. 404 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION

(1) AVOIDANCE OF DUPLICATION.—To the extent feasible,

the United States Government shall not require the submission of any report that is unnecessary or duplicative of any report required by or under any other law. The head of each Federal agency shall coordinate the actions of that agency with the

heads of the other Federal agencies in order to avoid the imposition of duplicative reporting requirements under this Act or

any other law.

(2) DEFINITION.—As used in paragraph (1), the term ‘‘Federal agency’’ has the meaning given the term ‘‘agency’’ in section 551(1) of title 5, United States Code.

SEC. 402. ø22 U.S.C. 6742¿ PROHIBITION RELATING TO LOW CONCENTRATIONS OF SCHEDULE 2 AND 3 CHEMICALS.

(a) PROHIBITION.—Notwithstanding any other provision of this

Act, no person located in the United States shall be required to report on, or to submit to, any routine inspection conducted for the

purpose of verifying the production, possession, consumption, exportation, importation, or proposed production, possession, consumption, exportation, or importation of any substance that contains less than—

(1) 10 percent concentration of a Schedule 2 chemical; or

(2) 80 percent concentration of a Schedule 3 chemical.

(b) STANDARD FOR MEASUREMENT OF CONCENTRATION.—The

percent concentration of a chemical in a substance shall be measured on the basis of volume or total weight, which measurement

yields the lesser percent.

SEC. 403. ø22 U.S.C. 6743¿ PROHIBITION RELATING TO UNSCHEDULED

DISCRETE ORGANIC CHEMICALS AND COINCIDENTAL BYPRODUCTS IN WASTE STREAMS.

(a) PROHIBITION.—Notwithstanding any other provision of this

Act, no person located in the United States shall be required to report on, or to submit to, any routine inspection conducted for the

purpose of verifying the production, possession, consumption, exportation, importation, or proposed production, possession, consumption, exportation, or importation of any substance that is—

(1) an unscheduled discrete organic chemical; and

(2) a coincidental byproduct of a manufacturing or production process that is not isolated or captured for use or sale during the process and is routed to, or escapes, from the waste

stream of a stack, incinerator, or wastewater treatment system

or any other waste stream.

SEC. 404. ø22 U.S.C. 6744¿ CONFIDENTIALITY OF INFORMATION.

(a) FREEDOM OF INFORMATION ACT EXEMPTION FOR CERTAIN

CONVENTION INFORMATION.—Except as provided in subsection (b)

or (c), any confidential business information, as defined in section

103(g), reported to, or otherwise acquired by, the United States

Government under this Act or under the Convention shall not be

disclosed under section 552(a) of title 5, United States Code.

(b) EXCEPTIONS.—

(1) INFORMATION FOR THE TECHNICAL SECRETARIAT.—Information shall be disclosed or otherwise provided to the Technical Secretariat or other states parties to the Chemical Weapons Convention in accordance with the Convention, in par-
Sec. 404 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION 310

ticular, the provisions of the Annex on the Protection of Confidential Information.

(2) INFORMATION FOR CONGRESS.—Information shall be

made available to any committee or subcommittee of Congress

with appropriate jurisdiction upon the written request of the

chairman or ranking minority member of such committee or

subcommittee, except that no such committee or subcommittee,

and no member and no staff member of such committee or subcommittee, shall disclose such information or material except

as otherwise required or authorized by law.

(3) INFORMATION FOR ENFORCEMENT ACTIONS.—Information

shall be disclosed to other Federal agencies for enforcement of

this Act or any other law, and shall be disclosed or otherwise

provided when relevant in any proceeding under this Act or

any other law, except that disclosure or provision in such a

proceeding shall be made in such manner as to preserve confidentiality to the extent practicable without impairing the proceeding.

(c) INFORMATION DISCLOSED IN THE NATIONAL INTEREST.— (1) AUTHORITY.—The United States Government shall disclose any information reported to, or otherwise required by the

United States Government under this Act or the Convention,

including categories of such information, that it determines is

in the national interest to disclose and may specify the form

in which such information is to be disclosed.

(2) NOTICE OF DISCLOSURE.— (A) REQUIREMENT.—If any Department or agency of

the United States Government proposes pursuant to paragraph (1) to publish or disclose or otherwise provide information exempt from disclosure under subsection (a), the

United States National Authority shall, unless contrary to

national security or law enforcement needs, provide notice

of intent to disclose the information—

(i) to the person that submitted such information;

and

(ii) in the case of information about a person received from another source, to the person to whom

that information pertains.

The information may not be disclosed until the expiration

of 30 days after notice under this paragraph has been provided.

(B) PROCEEDINGS ON OBJECTIONS.—In the event that

the person to which the information pertains objects to the

disclosure, the agency shall promptly review the grounds

for each objection of the person and shall afford the objecting person a hearing for the purpose of presenting the objections to the disclosure. Not later than 10 days before the

scheduled or rescheduled date for the disclosure, the

United States National Authority shall notify such person

regarding whether such disclosure will occur notwithstanding the objections.

(d) CRIMINAL PENALTY FOR WRONGFUL DISCLOSURE.—Any officer or employee of the United States, and any former officer or employee of the United States, who by reason of such employment or
311 Sec. 501 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION

official position has obtained possession of, or has access to, information the disclosure or other provision of which is prohibited by

subsection (a), and who, knowing that disclosure or provision of

such information is prohibited by such subsection, willfully discloses or otherwise provides the information in any manner to any

person (including any person located outside the territory of the

United States) not authorized to receive it, shall be fined under

title 18, United States Code, or imprisoned for not more than five

years, or both.

(e) CRIMINAL FORFEITURE.—The property of any person who

violates subsection (d) shall be subject to forfeiture to the United

States in the same manner and to the same extent as is provided

in section 229C of title 18, United States Code, as added by this

Act.

(f) INTERNATIONAL INSPECTORS.—The provisions of this section

shall also apply to employees of the Technical Secretariat.

SEC. 405. ø22 U.S.C. 6745¿ RECORDKEEPING VIOLATIONS.

It shall be unlawful for any person willfully to fail or refuse—

(1) to establish or maintain any record required by this Act

or any regulation prescribed under this Act;

(2) to submit any report, notice, or other information to the

United States Government in accordance with this Act or any

regulation prescribed under this Act; or

(3) to permit access to or copying of any record that is exempt from disclosure under this Act or any regulation prescribed under this Act.

TITLE V—ENFORCEMENT

SEC. 501. ø22 U.S.C. 6761¿ PENALTIES.

(a) CIVIL.—

(1) PENALTY AMOUNTS.—

(A) PROHIBITED ACTS RELATING TO INSPECTIONS.—Any

person that is determined, in accordance with paragraph

(2), to have violated section 306 of this Act shall be required by order to pay a civil penalty in an amount not to

exceed $25,000 for each such violation. For purposes of

this paragraph, each day such a violation of section 306

continues shall constitute a separate violation of that section.

(B) RECORDKEEPING VIOLATIONS.—Any person that is

determined, in accordance with paragraph (2), to have violated section 405 of this Act shall be required by order to

pay a civil penalty in an amount not to exceed $5,000 for

each such violation.

(2) HEARING.—

(A) IN GENERAL.—Before imposing an order described

in paragraph (1) against a person under this subsection for

a violation of section 306 or 405, the Secretary of State

shall provide the person or entity with notice and, upon request made within 15 days of the date of the notice, a

hearing respecting the violation.

(B) CONDUCT OF HEARING.—Any hearing so requested

shall be conducted before an administrative law judge. The
Sec. 501 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION 312

hearing shall be conducted in accordance with the requirements of section 554 of title 5, United States Code. If no

hearing is so requested, the Secretary of State’s imposition

of the order shall constitute a final and unappealable

order.

(C) ISSUANCE OF ORDERS.—If the administrative law

judge determines, upon the preponderance of the evidence

received, that a person or entity named in the complaint

has violated section 306 or 405, the administrative law

judge shall state his findings of fact and issue and cause

to be served on such person or entity an order described

in paragraph (1).

(D) FACTORS FOR DETERMINATION OF PENALTY

AMOUNTS.—In determining the amount of any civil penalty, the administrative law judge shall take into account

the nature, circumstances, extent, and gravity of the violation or violations and, with respect to the violator, the ability to pay, effect on ability to continue to do business, any

history of prior such violations, the degree of culpability,

the existence of an internal compliance program, and such

other matters as justice may require.

(3) ADMINISTRATIVE APPELLATE REVIEW.—The decision and

order of an administrative law judge shall become the final

agency decision and order of the head of the United States National Authority unless, within 30 days, the head of the United

States National Authority modifies or vacates the decision and

order, with or without conditions, in which case the decision

and order of the head of the United States National Authority

shall become a final order under this subsection.

(4) OFFSETS.—The amount of the civil penalty under a

final order of the United States National Authority may be deducted from any sums owed by the United States to the person.

(5) JUDICIAL REVIEW.—A person adversely affected by a

final order respecting an assessment may, within 30 days after

the date the final order is issued, file a petition in the Court

of Appeals for the District of Columbia Circuit or for any other

circuit in which the person resides or transacts business.

(6) ENFORCEMENT OF ORDERS.—If a person fails to comply

with a final order issued under this subsection against the person or entity—

(A) after the order making the assessment has become

a final order and if such person does not file a petition for

judicial review of the order in accordance with paragraph

(5), or

(B) after a court in an action brought under paragraph

(5) has entered a final judgment in favor of the United

States National Authority,

the Secretary of State shall file a suit to seek compliance with the

order in any appropriate district court of the United States, plus

interest at currently prevailing rates calculated from the date of expiration of the 30-day period referred to in paragraph (5) or the

date of such final judgment, as the case may be. In any such suit,
313 Sec. 503 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION

the validity and appropriateness of the final order shall not be subject to review.

(b) CRIMINAL.—Any person who knowingly violates any provision of section 306 or 405 of this Act, shall, in addition to or in lieu

of any civil penalty which may be imposed under subsection (a) for

such violation, be fined under title 18, United States Code, imprisoned for not more than one year, or both.

SEC. 502. ø22 U.S.C. 6762¿ SPECIFIC ENFORCEMENT.

(a) JURISDICTION.—The district courts of the United States

shall have jurisdiction over civil actions to—

(1) restrain any violation of section 306 or 405 of this Act;

and

(2) compel the taking of any action required by or under

this Act or the Convention.

(b) CIVIL ACTIONS.—

(1) IN GENERAL.—A civil action described in subsection (a)

may be brought—

(A) in the case of a civil action described in subsection

(a)(1), in the United States district court for the judicial

district in which any act, omission, or transaction constituting a violation of section 306 or 405 occurred or in

which the defendant is found or transacts business; or

(B) in the case of a civil action described in subsection

(a)(2), in the United States district court for the judicial

district in which the defendant is found or transacts business.

(2) SERVICE OF PROCESS.—In any such civil action process

may be served on a defendant wherever the defendant may reside or may be found, whether the defendant resides or may

be found within the United States or elsewhere.

SEC. 503. ø22 U.S.C. 6763¿ EXPEDITED JUDICIAL REVIEW.

(a) CIVIL ACTION.—Any person or entity subject to a search

under this Act may file a civil action challenging the constitutionality of any provision of this Act. Notwithstanding any other

provision of law, during the full calendar year of, and the two full

calendar years following, the enactment of this Act, the district

court shall accord such a case a priority in its disposition ahead of

all other civil actions except for actions challenging the legality and

conditions of confinement.

(b) EN BANC REVIEW.—Notwithstanding any other provision of

law, during the full calendar year of, and the two full calendar

years following, the enactment of this Act, any appeal from a final

order entered by a district court in an action brought under subsection (a) shall be heard promptly by the full Court of Appeals sitting en banc.

TITLE VI—MISCELLANEOUS PROVISIONS

SEC. 601. REPEAL.

[Omitted-Amendment]
Sec. 602 CHEMICAL WEAPONS CONVENTION IMPLEMENTATION 314

SEC. 602. ø22 U.S.C. 6771¿ PROHIBITION.

(a) IN GENERAL.—Neither the Secretary of Defense nor any

other officer or employee of the United States may, directly or by

contract—

(1) conduct any test or experiment involving the use of any

chemical or biological agent on a civilian population; or

(2) use human subjects for the testing of chemical or biological agents.

(b) CONSTRUCTION.—Nothing in subsection (a) may be construed to prohibit actions carried out for purposes not prohibited by

this Act (as defined in section 3(8)).

(c) BIOLOGICAL AGENT DEFINED.—In this section, the term ‘‘biological agent’’ means any micro-organism (including bacteria, viruses, fungi, rickettsiae or protozoa), pathogen, or infectious substance, or any naturally occurring, bio-engineered or synthesized

component of any such micro-organism, pathogen, or infectious substance, whatever its origin or method of production, capable of

causing—

(1) death, disease, or other biological malfunction in a

human, an animal, a plant, or another living organism;

(2) deterioration of food, water, equipment, supplies, or

materials of any kind; or

(3) deleterious alteration of the environment.

SEC. 603. BANKRUPTCY ACTIONS.

[Omitted-Amendments]
315

3. ARMS CONTROL AND NUCLEAR NONPROLIFERATION

MATTERS

a. Plan for Securing Nuclear Weapons, Material, and

Expertise of the States of the Former Soviet Union

(Section 1205 of the National Defense Authorization Act for Fiscal Year 2002 (Public

Law 107–107, approved Dec. 28, 2001))

SEC. 1205. PLAN FOR SECURING NUCLEAR WEAPONS, MATERIAL, AND

EXPERTISE OF THE STATES OF THE FORMER SOVIET

UNION.

(a) PLAN REQUIRED.—Not later than June 15, 2002, the President shall submit to Congress a plan, that has been developed in

coordination with all relevant Federal agencies—

(1) for cooperating with Russia on disposing, as soon as

practicable, of nuclear weapons and weapons-usable nuclear

material in Russia that Russia does not retain in its nuclear

arsenals;

(2) for assisting Russia in downsizing its nuclear weapons

research and production complex;

(3) for cooperating with the other states of the former Soviet Union on disposing, as soon as practicable, of all nuclear

weapons and weapons-usable nuclear material in such states;

and

(4) for preventing the outflow from the states of the former

Soviet Union of scientific expertise that could be used for developing nuclear weapons, other weapons of mass destruction,

and delivery systems for such weapons.

(b) CONTENT OF PLAN.—The plan required by subsection (a)

shall include the following:

(1) Specific goals and measurable objectives for programs

that are designed to carry out the objectives described in subsection (a).

(2) Criteria for success for such programs, and a strategy

for eventual termination of United States contributions to such

programs and assumption of the ongoing support of those programs by others.

(3) A description of any administrative and organizational

changes necessary to improve the coordination and effectiveness of such programs. In particular, the plan shall include

consideration of the creation of an interagency committee that

would have primary responsibilities within the executive

branch for—

(A) monitoring United States nonproliferation efforts

in the states of the former Soviet Union;

(B) coordinating the implementation of United States

policy with respect to such efforts; and
Sec. 1041 ARMS CONTROL AND NUCLEAR NONPROLIFERATION 316

(C) recommending to the President integrated policies,

budget options, and private sector and international contributions for such programs.

(4) An estimate of the cost of carrying out such programs.

(c) CONSULTATION.—In developing the plan required by subsection (a), the President—

(1) is encouraged to consult with the relevant states of the

former Soviet Union regarding the practicality of various options; and

(2) shall consult with the majority and minority leadership

of the appropriate committees of Congress.

(d) ANNUAL REPORT ON IMPLEMENTATION OF PLAN.—(1) Not

later than January 31, 2003, and each year thereafter, the President shall submit to Congress a report on the implementation of

the plan required by subsection (a) during the preceding year.

(2) Each report under paragraph (1) shall include—

(A) a discussion of progress made during the year covered

by such report in the matters of the plan required by subsection (a);

(B) a discussion of consultations with foreign nations, and

in particular the Russian Federation, during such year on joint

programs to implement the plan;

(C) a discussion of cooperation, coordination, and integration during such year in the implementation of the plan among

the various departments and agencies of the United States

Government, as well as private entities that share objectives

similar to the objectives of the plan; and

(D) any recommendations that the President considers appropriate regarding modifications to law or regulations, or to

the administration or organization of any Federal department

or agency, in order to improve the effectiveness of any programs carried out during such year in the implementation of

the plan.

b. Revised Nuclear Posture Review

(Section 1041 of the Floyd D. Spence National Defense Authorization Act for Fiscal

Year 2001 (as enacted into law by Public Law 106–398, approved Oct. 30, 2000))

SEC. 1041. ø10 U.S.C. 118 note¿ REVISED NUCLEAR POSTURE REVIEW.

(a) REQUIREMENT FOR COMPREHENSIVE REVIEW.—In order to

clarify United States nuclear deterrence policy and strategy for the

near term, the Secretary of Defense shall conduct a comprehensive

review of the nuclear posture of the United States for the next 5

to 10 years. The Secretary shall conduct the review in consultation

with the Secretary of Energy.

(b) ELEMENTS OF REVIEW.—The nuclear posture review shall

include the following elements:

(1) The role of nuclear forces in United States military

strategy, planning, and programming.

(2) The policy requirements and objectives for the United

States to maintain a safe, reliable, and credible nuclear deterrence posture.
317 FY98 ARMS CONTROL AND NUCLEAR NONPROLIFERATION

(3) The relationship among United States nuclear deterrence policy, targeting strategy, and arms control objectives.

(4) The levels and composition of the nuclear delivery systems that will be required for implementing the United States

national and military strategy, including any plans for replacing or modifying existing systems.

(5) The nuclear weapons complex that will be required for

implementing the United States national and military strategy, including any plans to modernize or modify the complex.

(6) The active and inactive nuclear weapons stockpile that

will be required for implementing the United States national

and military strategy, including any plans for replacing or

modifying warheads.

(7) The possibility of deactivating or dealerting nuclear

warheads or delivery systems immediately, or immediately

after a decision to retire any specific warhead, class of warheads, or delivery system.

(c) REPORT TO CONGRESS.—The Secretary of Defense shall submit to Congress, in unclassified and classified forms as necessary,

a report on the results of the nuclear posture review conducted

under this section. The report shall be submitted concurrently with

the Quadrennial Defense Review report due in December 2001.

(d) SENSE OF CONGRESS.—It is the sense of Congress that the

nuclear posture review conducted under this section should be used

as the basis for establishing future United States arms control objectives and negotiating positions.

c. Transmission of Reports on Arms Control Developments

(Section 1502 of the Strom Thurmond National Defense Authorization Act for Fiscal

Year 1999 (Public Law 105–261, approved Oct. 17, 1998))

SEC. 1502. ø22 U.S.C. 2593a note¿ TRANSMISSION OF EXECUTIVE

BRANCH REPORTS PROVIDING CONGRESS WITH CLASSIFIED SUMMARIES OF ARMS CONTROL DEVELOPMENTS.

(a) REPORTING REQUIREMENT.—The Director of the Arms Control and Disarmament Agency (or the Secretary of State, if the

Arms Control and Disarmament Agency becomes an element of the

Department of State) shall transmit to the Committee on Armed

Services of the House of Representatives on a periodic basis reports

containing classified summaries of arms control developments.

(b) CONTENTS OF REPORTS.—The reports required by subsection (a) shall include information reflecting the activities of forums established to consider issues relating to treaty implementation and treaty compliance.

d. National Defense Authorization Act for Fiscal Year 1998

(Public Law 105–85, approved Nov. 18, 1997)

TITLE XIII—ARMS CONTROL AND RELATED MATTERS

* * * * * * *
FY98 ARMS CONTROL AND NUCLEAR NONPROLIFERATION 318

øSEC. 1302. Repealed. Section 1031 of the National Defense Authorization

Act for Fiscal Year 2002 (P.L. 107–107; 115 Stat. 1215)¿

* * * * * * *

SEC. 1305. ø42 U.S.C. 7274p¿ ADVICE TO THE PRESIDENT AND CONGRESS REGARDING THE SAFETY, SECURITY, AND RELIABILITY OF UNITED STATES NUCLEAR WEAPONS STOCKPILE.

(a) FINDINGS.—Congress makes the following findings:

(1) Nuclear weapons are the most destructive weapons on

earth. The United States and its allies continue to rely on nuclear weapons to deter potential adversaries from using weapons of mass destruction. The safety and reliability of the nuclear weapons stockpile are essential to ensure its credibility

as a deterrent.

(2) On September 24, 1996, President Clinton signed the

Comprehensive Test Ban Treaty.

(3) Effective as of September 30, 1996, the United States

is prohibited by section 507 of the Energy and Water Development Appropriations Act, 1993 (Public Law 102–377; 42 U.S.C.

2121 note) from conducting underground nuclear tests ‘‘unless

a foreign state conducts a nuclear test after this date, at which

time the prohibition on United States nuclear testing is lifted’’.

(4) Section 1436(b) of the National Defense Authorization

Act, Fiscal Year 1989 (Public Law 100–456; 42 U.S.C. 2121

note) requires the Secretary of Energy to ‘‘establish and support a program to assure that the United States is in a position

to maintain the reliability, safety, and continued deterrent effect of its stockpile of existing nuclear weapons designs in the

event that a low-threshold or comprehensive test ban on nuclear explosive testing is negotiated and ratified.’’.

(5) Section 3138(d) of the National Defense Authorization

Act for Fiscal Year 1994 (Public Law 103–160; 42 U.S.C. 2121

note) required the President to submit an annual report to

Congress which sets forth ‘‘any concerns with respect to the

safety, security, effectiveness, or reliability of existing United

States nuclear weapons raised by the Stockpile Stewardship

Program of the Department of Energy’’.

(6) President Clinton declared in July 1993 that ‘‘to assure

that our nuclear deterrent remains unquestioned under a test

ban, we will explore other means of maintaining our confidence

in the safety, reliability, and the performance of our weapons’’.

This decision was incorporated in a Presidential Directive.

(7) Section 3138 of the National Defense Authorization Act

for Fiscal Year 1994 (Public Law 103–160; 42 U.S.C. 2121

note) also requires that the Secretary of Energy establish a

‘‘stewardship program to ensure the preservation of the core

intellectual and technical competencies of the United States in

nuclear weapons’’.

(8) The plan of the Department of Energy to maintain the

safety and reliability of the United States nuclear weapons

stockpile is known as the Stockpile Stewardship and Management Program. The ability of the United States to maintain

and certify the safety, security, effectiveness, and reliability of

the nuclear weapons stockpile without testing will require uti-
319 FY98 ARMS CONTROL AND NUCLEAR NONPROLIFERATION

lization of new and sophisticated computational capabilities

and diagnostic technologies, methods, and procedures. Current

diagnostic technologies and laboratory testing techniques are

insufficient to certify the safety and reliability of the United

States nuclear weapons stockpile into the future. Whereas in

the past laboratory and diagnostic tools were used in conjunction with nuclear testing, in the future they will provide, under

the Department of Energy’s stockpile stewardship plan, the

sole basis for assessing past test data and for making judgments on phenomena observed in connection with the aging of

the stockpile.

(9) Section 3159 of the National Defense Authorization Act

for Fiscal Year 1997 (Public Law 104–201; 42 U.S.C. 7274o) requires that the directors of the nuclear weapons laboratories

and the nuclear weapons production plants submit a report to

the Assistant Secretary of Energy for Defense Programs if they

identify a problem that has significant bearing on confidence in

the safety or reliability of a nuclear weapon or nuclear weapon

type, that the Assistant Secretary must transmit that report,

along with any comments, to the congressional defense committees and to the Secretary of Energy and the Secretary of Defense, and that the Joint Nuclear Weapons Council advise Congress regarding its analysis of any such problems.

(10) On August 11, 1995, President Clinton directed ‘‘the

establishment of a new annual reporting and certification requirement [to] ensure that our nuclear weapons remain safe

and reliable under a comprehensive test ban’’.

(11) On the same day, the President noted that the Secretary of Defense and the Secretary of Energy have the responsibility, after being ‘‘advised by the Nuclear Weapons Council,

the Directors of DOE’s nuclear weapons laboratories, and the

Commander of United States Strategic Command’’, to provide

the President with the information regarding the certification

referred to in paragraph (10).

(12) The Joint Nuclear Weapons Council established by

section 179 of title 10, United States Code, is responsible for

providing advice to the Secretary of Energy and the Secretary

of Defense regarding nuclear weapons issues, including ‘‘considering safety, security, and control issues for existing weapons’’. The Council plays a critical role in advising Congress in

matters relating to nuclear weapons.

(13) It is essential that the President receive well-informed, objective, and honest opinions, including dissenting

views, from his advisers and technical experts regarding the

safety, security, effectiveness, and reliability of the nuclear

weapons stockpile.

(b) POLICY.—

(1) IN GENERAL.—It is the policy of the United States—

(A) to maintain a safe, secure, effective, and reliable

nuclear weapons stockpile; and

(B) as long as other nations control or actively seek to

acquire nuclear weapons, to retain a credible nuclear deterrent.
FY98 ARMS CONTROL AND NUCLEAR NONPROLIFERATION 320

(2) NUCLEAR WEAPONS STOCKPILE.—It is in the security interest of the United States to sustain the United States nuclear weapons stockpile through a program of stockpile stewardship, carried out at the nuclear weapons laboratories and

nuclear weapons production plants.

(3) SENSE OF CONGRESS.—It is the sense of Congress

that—

(A) the United States should retain a triad of strategic

nuclear forces sufficient to deter any future hostile foreign

leadership with access to strategic nuclear forces from acting against the vital interests of the United States;

(B) the United States should continue to maintain nuclear forces of sufficient size and capability to implement

an effective and robust deterrent strategy; and

(C) the advice of the persons required to provide the

President and Congress with assurances of the safety, security, effectiveness, and reliability of the nuclear weapons

force should be scientifically based, without regard for politics, and of the highest quality and integrity.

(c) ADDITION OF PRESIDENT TO RECIPIENTS OF REPORTS BY

HEADS OF LABORATORIES AND PLANTS.—[Omitted—Amendment]

(d) TEN-DAY TIME LIMIT FOR TRANSMITTAL OF REPORT.—[Omitted—Amendment]

(e) ADVICE AND OPINIONS REGARDING NUCLEAR WEAPONS

STOCKPILE.—In addition to a director of a nuclear weapons laboratory or a nuclear weapons production plant (under section 3159 of

the National Defense Authorization Act for Fiscal Year 1997 (Public Law 104–201; 42 U.S.C. 7274o)), any member of the Joint Nuclear Weapons Council or the commander of the United States

Strategic Command may also submit to the President, the Secretary of Defense, the Secretary of Energy, or the congressional defense committees advice or opinion regarding the safety, security,

effectiveness, and reliability of the nuclear weapons stockpile.

(f) EXPRESSION OF INDIVIDUAL VIEWS.—A representative of the

President may not take any action against, or otherwise constrain,

a director of a nuclear weapons laboratory or a nuclear weapons

production plant, a member of the Joint Nuclear Weapons Council,

or the Commander of United States Strategic Command for presenting individual views to the President, the National Security

Council, or Congress regarding the safety, security, effectiveness,

and reliability of the nuclear weapons stockpile.

(g) DEFINITIONS.—In this section:

(1) The term ‘‘representative of the President’’ means the

following:

(A) Any official of the Department of Defense or the

Department of Energy who is appointed by the President

and confirmed by the Senate.

(B) Any member of the National Security Council.

(C) Any member of the Joint Chiefs of Staff.

(D) Any official of the Office of Management and

Budget.

(2) The term ‘‘nuclear weapons laboratory’’ means any of

the following:
321 FY98 ARMS CONTROL AND NUCLEAR NONPROLIFERATION

(A) Lawrence Livermore National Laboratory,

California.

(B) Los Alamos National Laboratory, New Mexico.

(C) Sandia National Laboratories.

(3) The term ‘‘nuclear weapons production plant’’ means

any of the following:

(A) The Pantex Plant, Texas.

(B) The Savannah River Site, South Carolina.

(C) The Kansas City Plant, Missouri.

(D) The Y–12 Plant, Oak Ridge, Tennessee.

* * * * * * *

SEC. 1309. ø10 U.S.C. 113 note¿ ANNUAL REPORT ON MORATORIUM ON

USE BY ARMED FORCES OF ANTIPERSONNEL LANDMINES.

(a) FINDINGS.—Congress makes the following findings:

(1) The United States has stated its support for a ban on

antipersonnel landmines that is global in scope and verifiable.

(2) On May 16, 1996, the President announced that the

United States, as a matter of policy, would eliminate its stockpile of non-self-destructing antipersonnel landmines, except

those used for training purposes and in Korea, and that the

United States would reserve the right to use self-destructing

antipersonnel landmines in the event of conflict.

(3) On May 16, 1996, the President also announced that

the United States would lead an effort to negotiate an international treaty permanently banning the use of all antipersonnel landmines.

(4) The United States is currently participating at the

United Nations Conference on Disarmament in negotiations

aimed at achieving a global ban on the use of antipersonnel

landmines.

(5) On August 18, 1997, the administration agreed to participate in international negotiations sponsored by Canada (the

so-called ‘‘Ottawa process’’) designed to achieve a treaty that

would outlaw the production, use, and sale of antipersonnel

landmines.

(6) On September 17, 1997, the President announced that

the United States would not sign the antipersonnel landmine

treaty concluded in Oslo, Norway, by participants in the Ottawa process because the treaty would not provide a geographic exception to allow the United States to stockpile and

use antipersonnel landmines in Korea or an exemption that

would preserve the ability of the United States to use mixed

antitank mine systems which could be used to deter an armored assault against United States forces.

(7) The President also announced a change in United

States policy whereby the United States—

(A) would no longer deploy antipersonnel landmines,

including self-destructing antipersonnel landmines, by

2003, except in Korea;

(B) would seek to field alternatives by that date, or by

2006 in the case of Korea;
FY98 ARMS CONTROL AND NUCLEAR NONPROLIFERATION 322

(C) would undertake a new initiative in the United

Nations Conference on Disarmament to establish a global

ban on the transfer of antipersonnel landmines; and

(D) would increase its current humanitarian demining

activities around the world.

(8) The President’s decision would allow the continued use

by United States forces of self-destructing antipersonnel landmines that are used as part of a mixed antitank mine system.

(9) Under existing law (as provided in section 580 of Public

Law 104–107; 110 Stat. 751), on February 12, 1999, the United

States will implement a one-year moratorium on the use of

antipersonnel landmines by United States forces except along

internationally recognized national borders or in demilitarized

zones within a perimeter marked area that is monitored by

military personnel and protected by adequate means to ensure

the exclusion of civilians.

(b) SENSE OF CONGRESS.—It is the sense of Congress that—

(1) the United States should not implement a moratorium

on the use of antipersonnel landmines by United States Armed

Forces in a manner that would endanger United States personnel or undermine the military effectiveness of United States

Armed Forces in executing their missions; and

(2) the United States should pursue the development of alternatives to self-destructing antipersonnel landmines.

(c) ANNUAL REPORT.—Not later than December 31 each year,

the Secretary of Defense shall submit to the congressional defense

committees a report concerning antipersonnel landmines. Each

such report shall include the Secretary’s description of the following:

(1) The military utility of the continued deployment and

use by the United States of antipersonnel landmines.

(2) The effect of a moratorium on the production, stockpiling, and use of antipersonnel landmines on the ability of

United States forces to deter and defend against attack on land

by hostile forces, including on the Korean peninsula.

(3) Progress in developing and fielding systems that are effective substitutes for antipersonnel landmines, including an

identification and description of the types of systems that are

being developed and fielded, the costs associated with those

systems, and the estimated timetable for developing and fielding those systems.

(4) The effect of a moratorium on the use of antipersonnel

landmines on the military effectiveness of current antitank

mine systems.

(5) The number and type of pure antipersonnel landmines

that remain in the United States inventory and that are subject to elimination under the President’s September 17, 1997,

declaration on United States antipersonnel landmine policy.

(6) The number and type of mixed antitank mine systems

that are in the United States inventory, the locations where

they are deployed, and their effect on the deterrence and

warfighting ability of United States Armed Forces.
323 Sec. 1503 ARMS CONTROL AND NUCLEAR NONPROLIFERATION

(7) The effect of the elimination of pure antipersonnel

landmines on the warfighting effectiveness of the United

States Armed Forces.

(8) The costs already incurred and anticipated of eliminating antipersonnel landmines from the United States inventory in accordance with the policy enunciated by the President

on September 17, 1997.

(9) The benefits that would result to United States military and civilian personnel from an international treaty banning the production, use, transfer, and stockpiling of antipersonnel landmines.

e. Reports on Counterproliferation Activities and Programs

(Section 1503 of the National Defense Authorization Act for Fiscal Year 1995 (Public

Law 103–337, approved Oct. 5, 1994))

SEC. 1503. ø22 U.S.C. 2751 note¿ REPORTS ON COUNTERPROLIFERATION

ACTIVITIES AND PROGRAMS.

(a) ANNUAL REPORT REQUIRED.—Not later than May 1 each

year, the Secretary of Defense shall submit to Congress a report of

the findings of the Counterproliferation Program Review Committee established by subsection (a) of the Review Committee charter.

(b) CONTENT OF REPORT.—Each report under subsection (a)

shall include the following:

(1) A complete list, by specific program element, of the existing, planned, or newly proposed capabilities and technologies

reviewed by the Review Committee pursuant to subsection (c)

of the Review Committee charter.

(2) A complete description of the requirements and priorities established by the Review Committee.

(3) A comprehensive discussion of the near-term, mid-term,

and long-term programmatic options formulated by the Review

Committee for meeting requirements prescribed by the Review

Committee and for eliminating deficiencies identified by the

Review Committee, including the annual funding requirements

and completion dates established for each such option.

(4) An explanation of the recommendations made pursuant

to subsection (c) of the Review Committee charter, together

with a full discussion of the actions taken to implement such

recommendations or otherwise taken on the recommendations.

(5) A discussion and assessment of the status of each Review Committee recommendation during the fiscal year preceding the fiscal year in which the report is submitted, including, particularly, the status of recommendations made during

such preceding fiscal year that were reflected in the budget

submitted to Congress pursuant to section 1105(a) of title 31,

United States Code, in the fiscal year of the report.

(6) Each specific Department of Energy program that the

Secretary of Energy plans to develop to initial operating capability and each such program that the Secretary does not plan

to develop to initial operating capability.

(7) For each technology program scheduled to reach initial

operational capability, a recommendation from the Chairman
FY94 ARMS CONTROL AND NUCLEAR NONPROLIFERATION 324

of the Joint Chiefs of Staff that represents the views of the

commanders of the unified and specified commands regarding

the utility and requirement of the program.

(8) A discussion of the limitations and impediments to the

biological weapons counterproliferation efforts of the Department of Defense (including legal, policy, and resource constraints) and recommendations for the removal or mitigation of

such impediments and for ways to make such efforts more effective.

(c) FORMS OF REPORT.—Each such report shall be submitted in

both unclassified and classified forms, including an annex to the

classified report for special compartmented information programs,

special access programs, and special activities programs.

(d) REVIEW COMMITTEE CHARTER DEFINED.—For purposes of

this section, the term ‘‘Review Committee charter’’ means section

1605 of the National Defense Authorization Act for Fiscal Year

1994 (22 U.S.C. 2751 note).

(e) TERMINATION OF REQUIREMENT.—The final report required

under subsection (a) is the report for the year following the year

in which the Counterproliferation Program Review Committee established under the Review Committee Charter ceases to exist.

f. National Defense Authorization Act for Fiscal Year 1994

(Public Law 103–160, approved Nov. 30, 1993)

TITLE XVI—ARMS CONTROL MATTERS

Subtitle A—Programs in Support of the Prevention and

Control of Proliferation of Weapons of Mass Destruction

* * * * * * *

SEC. 1603. ø22 U.S.C. 2751 note¿ STUDIES RELATING TO UNITED STATES

COUNTERPROLIFERATION POLICY.

(a) AUTHORIZATION TO CONDUCT STUDIES.—The Secretary of

Defense may conduct studies and analysis programs in support of

the counterproliferation policy of the United States.

(b) COUNTERPROLIFERATION STUDIES.—Studies and analysis

programs under this section may include programs intended to explore defense policy issues that might be involved in efforts to prevent and counter the proliferation of weapons of mass destruction

and their delivery systems. Such efforts include—

(1) enhancing United States military capabilities to deter

and respond to terrorism, theft, and proliferation involving

weapons of mass destruction;

(2) cooperating in international programs to enhance military capabilities to deter and respond to terrorism, theft, and

proliferation involving weapons of mass destruction; and

(3) otherwise contributing to Department of Defense capabilities to deter, identify, monitor, and respond to such terrorism, theft, and proliferation involving weapons of mass destruction.

(c) DESIGNATION OF COORDINATOR.—The Under Secretary of

Defense for Policy, subject to the supervision and control of the
325 FY94 ARMS CONTROL AND NUCLEAR NONPROLIFERATION

Secretary of Defense, shall coordinate the policy studies and analysis of the Department of Defense on countering proliferation of

weapons of mass destruction and their delivery systems.

(d) REPORT.—Not later than April 30 of each year, the Secretary of Defense shall submit to the appropriate congressional

committees a report on the activities carried out under subsection

(a). Each report shall set forth for the twelve-month period ending

on the last day of the month preceding the month in which the report is due the following:

(1) A description of the studies and analysis carried out.

(2) The amounts spent for such studies and analysis.

(3) The organizations that conducted the studies and analysis.

(4) An explanation of the extent to which such studies and

analysis contribute to the counterproliferation policy of the

United States and United States military capabilities to deter

and respond to terrorism, theft, and proliferation involving

weapons of mass destruction.

(5) A description of the measures being taken to ensure

that such studies and analysis within the Department of Defense are managed effectively and coordinated comprehensively.

* * * * * * *

SEC. 1605. ø22 U.S.C. 2751 note¿ JOINT COMMITTEE FOR REVIEW OF

COUNTERPROLIFERATION PROGRAMS OF THE UNITED

STATES.

(a) ESTABLISHMENT.—(1) There is hereby established a

Counterproliferation Program Review Committee composed of the

following members:

(A) The Secretary of Defense.

(B) The Secretary of Energy.

(C) The Director of Central Intelligence.

(D) The Chairman of the Joint Chiefs of Staff.

(2) The Secretary of Defense shall chair the committee. The

Secretary of Energy shall serve as the Vice Chairman of the committee.

(3) A member of the committee may designate a representative

to perform routinely the duties of the member. A representative

shall be in a position of Deputy Assistant Secretary or a position

equivalent to or above the level of Deputy Assistant Secretary. A

representative of the Chairman of the Joint Chiefs of Staff shall be

a person in a grade equivalent to that of Deputy Assistant Secretary of Defense.

(4) The Secretary of Defense may delegate to the Under Secretary of Defense for Acquisition, Technology, and Logisitics the

performance of the duties of the Chairman of the committee. The

Secretary of Energy may delegate to the Under Secretary of Energy

responsible for national security programs of the Department of

Energy the performance of the duties of the Vice Chairman of the

committee.

(5) The Assistant to the Secretary of Defense for Nuclear and

Chemical and Biological Defense Programs shall serve as executive

secretary to the committee, except that during any period during
FY94 ARMS CONTROL AND NUCLEAR NONPROLIFERATION 326

which that position is vacant the Assistant Secretary of Defense for

Strategy and Threat Reduction shall serve as the executive secretary.

(b) PURPOSES OF THE COMMITTEE.—The purposes of the committee are as follows:

(1) To optimize funding for, and ensure the development

and deployment of—

(A) highly effective technologies and capabilities for

the detection, monitoring, collection, processing, analysis,

and dissemination of information in support of United

States counterproliferation policy and efforts, including efforts to stem the proliferation of weapons of mass destruction and to negate paramilitary and terrorist threats involving weapons of mass destruction; and

(B) disabling technologies in support of such policy.

(2) To identify and eliminate undesirable redundancies or

uncoordinated efforts in the development and deployment of

such technologies and capabilities.

(3) To establish priorities for programs and funding.

(4) To encourage and facilitate interagency and interdepartmental funding of programs in order to ensure necessary

levels of funding to develop, operate, and field highly-capable

systems.

(5) To ensure that Department of Energy programs are integrated with the operational needs of other departments and

agencies of the Government.

(6) To ensure that Department of Energy national security

programs include technology demonstrations and prototype development of equipment.

(c) DUTIES.—The committee shall—

(1) identify and review existing and proposed capabilities

and technologies for support of United States nonproliferation

policy and counterproliferation policywith regard to—

(A) intelligence;

(B) battlefield surveillance;

(C) passive defenses;

(D) active defenses; and

(E) counterforce capabilities;

(2) prescribe requirements and priorities for the development and deployment of highly effective capabilities and technologies;

(3) identify deficiencies in existing capabilities and technologies;

(4) formulate near-term, mid-term, and long-term programmatic options for meeting requirements established by the

committee and eliminating deficiencies identified by the committee; and

(5) assess each fiscal year the effectiveness of the committee actions during the preceding fiscal year, including, particularly, the status of recommendations made during such

preceding fiscal year that were reflected in the budget submitted to Congress pursuant to section 1105(a) of title 31,

United States Code, for the fiscal year following the fiscal year

in which the assessment is made.
327 FY94 ARMS CONTROL AND NUCLEAR NONPROLIFERATION

(d) ACCESS TO INFORMATION.—The committee shall have access

to information on all programs, projects, and activities of the Department of Defense, the Department of State, the Department of

Energy, the intelligence community, and the Arms Control and Disarmament Agency that are pertinent to the purposes and duties of

the committee.

(e) RECOMMENDATIONS.—The committee shall submit to the

President and the heads of all appropriate departments and agencies of the Government such programmatic recommendations regarding existing, planned, or new programs as the committee considers appropriate to encourage funding for capabilities and technologies at the level necessary to support United States

counterproliferation policy.

(f) TERMINATION OF COMMITTEE.—The committee shall cease to

exist at the end of September 30, 2008.

SEC. 1606. REPORT ON NONPROLIFERATION AND COUNTERPROLIFERATION ACTIVITIES AND PROGRAMS.

(a) REPORT REQUIRED.—Not later than May 1, 1994, the Secretary of Defense shall submit to Congress a report on the findings

of the committee on nonproliferation activities established by section 1605.

(b) CONTENT OF REPORT.—The report shall include the following matters:

(1) A complete list, by program, of the existing, planned,

and proposed capabilities and technologies reviewed by the

committee, including all directed energy and laser programs

reviewed pursuant to section 1605(c)(2).

(2) A complete description of the requirements and priorities established by the committee.

(3) A comprehensive discussion of the near-term, mid-term,

and long-term programmatic options formulated by the committee for meeting requirements prescribed by the committee

and eliminating deficiencies identified by the committee, including the annual funding requirements and completion dates

established for each such option.

(4) An explanation of the recommendations made pursuant

to section 1605(e) and a full discussion of the actions taken on

such recommendations, including the actions taken to implement the recommendations.

(5) A discussion of the existing and planned capabilities of

the Department of Defense—

(A) to detect and monitor clandestine programs for the

acquisition or production of weapons of mass destruction;

(B) to respond to terrorism or accidents involving such

weapons and thefts of materials related to any weapon of

mass destruction; and

(C) to assist in the interdiction and destruction of

weapons of mass destruction, related weapons materials,

and advanced conventional weapons.

(6) A description of—

(A) the extent to which the Secretary of Defense has

incorporated nonproliferation and counterproliferation missions into the overall missions of the unified combatant

commands; and
FY93 ARMS CONTROL AND NUCLEAR NONPROLIFERATION 328

(B) how the special operations command established

pursuant to section 167(a) of title 10, United States Code,

might support the commanders of the other unified combatant commands and the commanders of the specified

combatant commands in the performance of such overall

missions.

(c) FORMS OF REPORT.—The report shall be submitted in both

unclassified and classified forms, as appropriate.

SEC. 1607. DEFINITIONS.

For purposes of this subtitle:

(1) The term ‘‘appropriate congressional committees’’

means—

(A) the Committee on Armed Services, the Committee

on Appropriations, the Committee on Foreign Relations,

and the Select Committee on Intelligence of the Senate;

and

(B) the Committee on Armed Services, the Committee

on Appropriations, the Committee on Foreign Affairs, and

the Permanent Select Committee on Intelligence of the

House of Representatives.

(2) The term ‘‘intelligence community’’ has the meaning

given such term in section 3 of the National Security Act of

1947 (50 U.S.C. 401a).

g. National Defense Authorization Act for Fiscal Year 1993

(including Weapons of Mass Destruction Control Act of

1992 and Iran-Iraq Arms Non-Proliferation Act of 1992)

(Public Law 102–484, approved Oct. 23, 1992)

TITLE XIII—MATTERS RELATING TO ALLIES AND OTHER

NATIONS

* * * * * * *

SEC. 1321. [22 U.S.C. 5901 note] NUCLEAR WEAPONS REDUCTION.

(a) FINDINGS.—The Congress makes the following findings:

(1) On February 1, 1992, the President of the United

States and the President of the Russian Federation agreed in

a Joint Statement that ‘‘Russia and the United States do not

regard each other as potential adversaries’’ and stated further

that, ‘‘We will work to remove any remnants of cold war hostility, including taking steps to reduce our strategic arsenals’’.

(2) In the Treaty on the Non-Proliferation of Nuclear

Weapons, in exchange for the non-nuclear-weapon states agreeing not to seek a nuclear weapons capability nor to assist other

non-nuclear-weapon states in doing so, the United States

agreed to seek the complete elimination of all nuclear weapons

worldwide, as declared in the preamble to the Treaty, which

states that it is a goal of the parties to the Treaty to ‘‘facilitate

the cessation of the manufacture of nuclear weapons, the liquidation of all their existing stockpiles, and the elimination

from national arsenals of nuclear weapons and the means of

their delivery’’ as well as in Article VI of the Treaty, which

states that ‘‘each of the parties to the Treaty undertakes to
329 FY93 ARMS CONTROL AND NUCLEAR NONPROLIFERATION

pursue negotiations in good faith on effective measures relating to the cessation of the nuclear arms race at an early date

and to nuclear disarmament’’.

(3) Carrying out a policy of seeking further significant and

continuous reductions in the nuclear arsenals of all countries,

besides reducing the likelihood of the proliferation of nuclear

weapons and increasing the likelihood of a successful extension

and possible strengthening of the Treaty on the Non-Proliferation of Nuclear Weapons in 1995, when the Treaty is scheduled

for review and possible extension, has additional benefits to

the national security of the United States, including—

(A) a reduced risk of accidental enablement and

launch of a nuclear weapon, and

(B) a defense cost savings which could be reallocated

for deficit reduction or other important national needs.

(4) The Strategic Arms Reduction Talks (START) Treaty

and the agreement by the President of the United States and

the President of the Russian Federation on June 17, 1992, to

reduce the strategic nuclear arsenals of each country to a level

between 3,000 and 3,500 weapons are commendable intermediate stages in the process of achieving the policy goals described in paragraphs (1) and (2).

(5) The current international era of cooperation provides

greater opportunities for achieving worldwide reduction and

control of nuclear weapons and material than any time since

the emergence of nuclear weapons 50 years ago.

(6) It is in the security interests of both the United States

and the world community for the President and the Congress

to begin the process of reducing the number of nuclear weapons in every country through multilateral agreements and

other appropriate means.

(7) In a 1991 study, a committee of the National Academy

of Sciences concluded that: ‘‘The appropriate new levels of nuclear weapons cannot be specified at this time, but it seems

reasonable to the committee that U.S. strategic forces could in

time be reduced to 1,000–2,000 nuclear warheads, provided

that such a multilateral agreement included appropriate levels

and verification measures for the other nations that possess

nuclear weapons. This step would require successful implementation of our proposed post-START U.S.-Soviet reductions, related confidence-building measures in all the countries involved, and multilateral security cooperation in areas such as

conventional force deployments and planning.’’.

(b) UNITED STATES POLICY.—It shall be the goal of the United

States—

(1) to encourage and facilitate the denuclearization of

Ukraine, Byelarus, and Kazakhstan, as agreed upon in the Lisbon ministerial meeting of May 23, 1992;

(2) to rapidly complete and submit for ratification by the

United States the treaty incorporating the agreement of June

17, 1992, between the United States and the Russian Federation to reduce the number of strategic nuclear weapons in each

country’s arsenal to a level between 3,000 and 3,500;
FY93 ARMS CONTROL AND NUCLEAR NONPROLIFERATION 330

(3) to facilitate the ability of the Russian Federation,

Ukraine, Byelarus, and Kazakhstan to implement agreed mutual reductions under the START Treaty, and under the Joint

Understanding of June 16–17, 1992 between the United States

and the Russian Federation, on an accelerated timetable, so

that all such reductions can be completed by the year 2000;

(4) to build on the agreement reached in the Joint Understanding of June 16–17, 1992, by entering into multilateral negotiations with the Russian Federation, the United Kingdom,

France, and the People’s Republic of China, and, at an appropriate point in that process, enter into negotiations with other

nuclear armed states in order to reach subsequent stage-bystage agreements to achieve further reductions in the number

of nuclear weapons in all countries;

(5) to continue and extend cooperative discussions with the

appropriate authorities of the former Soviet military on means

to maintain and improve secure command and control over nuclear forces;

(6) in consultation with other member countries of the

North Atlantic Treaty Organization and other allies, to initiate

discussions to bring tactical nuclear weapons into the arms

control process; and

(7) to ensure that the United States assistance to securely

transport and store, and ultimately dismantle, former Soviet

nuclear weapons and missiles for such weapons is being properly and effectively utilized.

(c) ANNUAL REPORT.—By February 1 of each year, the President shall submit to the Congress a report on—

(1) the actions that the United States has taken, and the

actions the United States plans to take during the next 12

months, to achieve each of the goals set forth in paragraphs (1)

through (6) of subsection (b); and

(2) the actions that have been taken by the Russian Federation, by other former Soviet republics, and by other countries to achieve those goals.

Each such report shall be submitted in unclassified form, with a

classified appendix if necessary.

* * * * * * *

TITLE XV—NONPROLIFERATION

SEC. 1501. SHORT TITLE.

This title may be cited as the ‘‘Weapons of Mass Destruction

Control Act of 1992’’.

SEC. 1502. SENSE OF CONGRESS.

It is the sense of the Congress that—

(1) the proliferation (A) of nuclear, biological, and chemical

weapons (hereinafter in this title referred to as ‘‘weapons of

mass destruction’’) and related technology and knowledge and

(B) of missile delivery systems remains one of the most serious

threats to international peace and the national security of the

United States in the post-cold war era;
331 FY93 ARMS CONTROL AND NUCLEAR NONPROLIFERATION

(2) the proliferation of nuclear weapons, given the extraordinary lethality of those weapons, is of particularly serious concern;

(3) the nonproliferation policy of the United States should

continue to seek to limit both the supply of and demand for

weapons of mass destruction and to reduce the existing threat

from proliferation of such weapons;

(4) substantial funding of nonproliferation activities by the

United States is essential to controlling the proliferation of all

weapons of mass destruction, especially nuclear weapons and

missile delivery systems;

(5) the President’s nonproliferation policy statement of

June 1992, and his September 10, 1992, initiative to increase

funding for nonproliferation activities in the Department of Energy are praiseworthy;

(6) the Congress is committed to cooperating with the

President in carrying out an effective policy designed to control

the proliferation of weapons of mass destruction;

(7) the President should identify a full range of appropriate, high priority nonproliferation activities that can be undertaken by the United States and should include requests for

full funding for those activities in the budget submission for

fiscal year 1994;

(8) the Department of Defense and the Department of Energy have unique expertise that can further enhance the effectiveness of international nonproliferation activities;

(9) under the guidance of the President, the Secretary of

Defense and the Secretary of Energy should continue to actively assist in United States nonproliferation activities and in

formulating and executing United States nonproliferation policy, emphasizing activities such as improved capabilities (A) to

detect and monitor proliferation, (B) to respond to terrorism,

theft, and accidents involving weapons of mass destruction,

and (C) to assist with interdiction and destruction of weapons

of mass destruction and related weapons material; and

(10) in a manner consistent with United States nonproliferation policy, the Department of Defense and the Department of Energy should continue to maintain and to improve their capabilities to identify, monitor, and respond to

proliferation of weapons of mass destruction and missile delivery systems.

SEC. 1503. REPORT ON DEPARTMENT OF DEFENSE AND DEPARTMENT

OF ENERGY NONPROLIFERATION ACTIVITIES.

(a) REPORT REQUIRED.—The Secretary of Defense and the Secretary of Energy shall jointly submit to the committees of Congress

named in subsection (d)(1) a report describing the role of the Department of Defense and the Department of Energy with respect to

the nonproliferation policy of the United States.

(b) MATTERS TO BE COVERED IN REPORT.—The report shall—

(1) address how the Secretary of Defense integrates and

coordinates existing intelligence and military capabilities of the

Department of Defense and how the Secretary of Energy integrates and coordinates the intelligence and emergency re-
FY93 ARMS CONTROL AND NUCLEAR NONPROLIFERATION 332

sponse capabilities of the Department of Energy in support of

the nonproliferation policy of the United States;

(2) identify existing and planned capabilities within the

Department of Defense, including particular capabilities of the

military services, and the Department of Energy to (A) detect

and monitor clandestine weapons of mass destruction programs, (B) respond to terrorism or accidents involving such

weapons and to theft of related weapons materials, and (C) assist with interdiction and destruction of weapons of mass destruction and related weapons materials;

(3) describe, for the Department of Defense, the degree to

which the Secretary of Defense has incorporated a nonproliferation mission into the overall mission of the unified

combatant commands and how the Special Operations Command might support the commanders of the unified and specified commands in that mission;

(4) consider the appropriate roles of the Defense Advance

Research Projects Agency (DARPA), the Defense Nuclear Agency (DNA), the On-Site-Inspection Agency (OSIA), and other Department of Defense agencies, as well as the national laboratories of the Department of Energy, in providing technical assistance and support for the efforts of the Department of Defense and the Department of Energy with respect to nonproliferation; and

(5) identify existing and planned mechanisms for improving the integration of Department of Defense and Department

of Energy nonproliferation activities with those of other Federal departments and agencies.

(c) COORDINATION WITH OTHER AGENCIES.—The report required by subsection (a) shall, for purposes of subsection (b)(5), be

coordinated with the heads of other appropriate departments and

agencies.

(d) SUBMISSION OF REPORT.—(1) The report required by subsection (a) shall be submitted—

(A) to the Committee on Armed Services and the Committee on Foreign Relations of the Senate; and

(B) to the Committee on Armed Services, the Committee

on Foreign Affairs, and the Committee on Energy and Commerce of the House of Representatives.

(2) The report shall be submitted not later than 180 days after

the date of enactment of this Act and shall be submitted in unclassified form and, as necessary, in classified form.

SEC. 1504. NONPROLIFERATION TECHNOLOGY INITIATIVE.

(a) FUNDS FOR DEPARTMENT OF DEFENSE ACTIVITIES.—

(1) Of the amount appropriated pursuant to section 103(3)

for Other Procurement, Air Force, $5,000,000 shall be available

for the AFTAC Chem/Biological Collection/Processing program.

(2) Of the amount appropriated pursuant to section 201(3)

for Research, Development, Test, and Evaluation, Air Force,

$6,500,000 shall be available for the Joint Seismic Program.

(3) Of the amount appropriated pursuant to section 201(4)

for Research, Development, Test, and Evaluation, Defense

Agencies—
333 FY93 ARMS CONTROL AND NUCLEAR NONPROLIFERATION

(A) $11,600,000 shall be available for LIDAR,

(B) $5,000,000 shall be available for Seismic programs

of the Defense Advanced Research Projects Agency, and (C) $15,000,000 shall be available for Nuclear Proliferation Detection Technology programs of the Defense

Advanced Research Projects Agency.

(b) FUNDS FOR DEPARTMENT OF ENERGY ACTIVITIES.—Of the

amount appropriated pursuant to section 3104(a)(2) for Verification

and Control Technologies, $86,000,000 shall be available for nuclear nonproliferation detection technologies and activities. Of such

amount, not more than $30,000,000 may be obligated until the report required by section 1503 is submitted.

SEC. 1505. ø22 U.S.C. 5859a¿ INTERNATIONAL NONPROLIFERATION INITIATIVE.

(a) ASSISTANCE FOR INTERNATIONAL NONPROLIFERATION ACTIVI- TIES.—Subject to the limitations and requirements provided in this

section, the Secretary of Defense, under the guidance of the President, may provide assistance to support international nonproliferation activities.

(b) ACTIVITIES FOR WHICH ASSISTANCE MAY BE PROVIDED.—Activities for which assistance may be provided under this section are

activities such as the following:

(1) Activities carried out by international organizations

that are designed to ensure more effective safeguards against

proliferation and more effective verification of compliance with

international agreements on nonproliferation.

(2) Activities of the Department of Defense in support of

the United Nations Special Commission on Iraq (or any successor organization).

(3) Collaborative international nuclear security and nuclear safety projects to combat the threat of nuclear theft, terrorism, or accidents, including joint emergency response exercises, technical assistance, and training.

(4) Efforts to improve international cooperative monitoring

of nuclear, biological, chemical, and missile proliferation

through technical projects and improved information sharing.

(c) FORM OF ASSISTANCE.—(1) Assistance under this section

may include funds and in-kind contributions of supplies, equipment, personnel, training, and other forms of assistance.

(2) Assistance under this section may be provided to international organizations in the form of funds only if the amount in

the ‘‘Contributions to International Organizations’’ account of the

Department of State is insufficient or otherwise unavailable to

meet the United States fair share of assessments for international

nuclear nonproliferation activities.

(3) No amount may be obligated for an expenditure under this

section unless the Director of the Office of Management and Budget determines that the expenditure will be counted as discretionary

spending in the national defense budget function (function 050).

(4) No assistance may be furnished under this section unless

the Secretary of Defense determines and certifies to the Congress

30 days in advance that the provision of such assistance—

(A) is in the national security interest of the United States;

and
FY93 ARMS CONTROL AND NUCLEAR NONPROLIFERATION 334

(B) will not adversely affect the military preparedness of

the United States.

(5) The authority to provide assistance under this section in

the form of funds may be exercised only to the extent and in the

amounts provided in advance in appropriations Act.

(d) SOURCES OF ASSISTANCE.—(1) Funds provided as assistance

under this section for any fiscal year shall be derived from amounts

made available to the Department of Defense for that fiscal year.

Funds provided as assistance under this section for a fiscal year

may also be derived from balances in working capital accounts of

the Department of Defense.

(2) Supplies and equipment provided as assistance under this

section may be provided, by loan or donation, from existing stocks

of the Department of Defense and the Department of Energy.

(3) The total amount of the assistance provided in the form of

funds under this section, including funds used for activities of the

Department of Defense in support of the United Nations Special

Commission on Iraq, may not exceed $25,000,000 for fiscal year

1994, $20,000,000 for fiscal year 1995, $15,000,000 for fiscal year

1996, $15,000,000 for fiscal year 1997, or $15,000,000 for fiscal

year 1998.

(4)(A) In the event of a significant unforeseen development related to the activities of the United Nations Special Commission on

Iraq (or any successor organization) for which the Secretary of Defense determines that financial assistance under this section is required at a level which would result in the total amount of assistance provided under this section during the then-current fiscal year

exceeding the amount of any limitation provided by law on the

total amount of such assistance for that fiscal year, the Secretary

of Defense may provide such assistance with respect to that fiscal

year notwithstanding that limitation. Funds for such purpose may

be derived from any funds available to the Department of Defense

for that fiscal year.

(B) Financial assistance may be provided under subparagraph

(A) only after the Secretary of Defense provides notice in writing

to the committees of Congress named in subsection (e)(2) of the significant unforeseen development and of the Secretary’s intent to

provide assistance in excess of the limitation for that fiscal year.

However, if the Secretary determines in any case that under the

specific circumstances of that case advance notice is not possible,

such notice shall be provided as soon as possible and not later than

15 days after the date on which the assistance is provided. Any notice under this subparagraph shall include a description of the development, the amount of assistance provided or to be provided,

and the source of the funds for that assistance.

(e) QUARTERLY REPORT.—(1) Not later than 30 days after the

end of each quarter of a fiscal year during which the authority of

the Secretary of Defense to provide assistance under this section is

in effect, the Secretary of Defense shall transmit to the committees

of Congress named in paragraph (2) a report of the activities to reduce the proliferation threat carried out under this section. Each

report shall set forth (for the preceding quarter and cumulatively)—
335 FY93 ARMS CONTROL AND NUCLEAR NONPROLIFERATION

(A) the amounts spent for such activities and the purposes

for which they were spent;

(B) a description of the participation of the Department of

Defense and the Department of Energy and the participation

of other Government agencies in those activities; and

(C) a description of the activities for which the funds were

spent.

(2) The committees of Congress to which reports under paragraph (1) are to be transmitted are—

(A) the Committee on Armed Services, the Committee on

Appropriations, and the Committee on Foreign Relations of the

Senate; and

(B) the Committee on Armed Services, the Committee on

Appropriations, the Committee on International Relations, and

the Committee on Commerce of the House of Representatives.

(f) TERMINATION OF AUTHORITY.—The authority of the Secretary of Defense to provide assistance under this section terminates at the close of fiscal year 2002.

TITLE XVI—IRAN-IRAQ ARMS NON-PROLIFERATION ACT

OF 1992

SEC. 1601. ø50 U.S.C. 1701 note¿ SHORT TITLE.

This title may be cited as the ‘‘Iran-Iraq Arms Non-Proliferation Act of 1992’’.

SEC. 1602. ø50 U.S.C. 1701 note¿ UNITED STATES POLICY.

(a) IN GENERAL.—It shall be the policy of the United States to

oppose, and urgently to seek the agreement of other nations also

to oppose, any transfer to Iran or Iraq of any goods or technology,

including dual-use goods or technology, wherever that transfer

could materially contribute to either country’s acquiring chemical,

biological, nuclear, or destabilizing numbers and types of advanced

conventional weapons.

(b) SANCTIONS.—(1) In the furtherance of this policy, the President shall apply sanctions and controls with respect to Iran, Iraq,

and those nations and persons who assist them in acquiring weapons of mass destruction in accordance with the Foreign Assistance

Act of 1961, the Nuclear Non-Proliferation Act of 1978, the Chemical and Biological Weapons Control and Warfare Elimination Act

of 1991, chapter 7 of the Arms Export Control Act, and other relevant statutes, regarding the non-proliferation of weapons of mass

destruction and the means of their delivery.

(2) The President should also urgently seek the agreement of

other nations to adopt and institute, at the earliest practicable

date, sanctions and controls comparable to those the United States

is obligated to apply under this subsection.

(c) PUBLIC IDENTIFICATION.—The Congress calls on the President to identify publicly (in the report required by section 1607)

any country or person that transfers goods or technology to Iran or

Iraq contrary to the policy set forth in subsection (a).

SEC. 1603. ø50 U.S.C. 1701 note¿ APPLICATION TO IRAN OF CERTAIN

IRAQ SANCTIONS.

The sanctions against Iraq specified in paragraphs (1) through

(4) of section 586G(a) of the Iraq Sanctions Act of 1990 (as con-
FY93 ARMS CONTROL AND NUCLEAR NONPROLIFERATION 336

tained in Public Law 101–513), including denial of export licenses

for United States persons and prohibitions on United States Government sales, shall be applied to the same extent and in the same

manner with respect to Iran.

SEC. 1604. ø50 U.S.C. 1701 note¿ SANCTIONS AGAINST CERTAIN PERSONS.

(a) PROHIBITION.—If any person transfers or retransfers goods

or technology so as to contribute knowingly and materially to the

efforts by Iran or Iraq (or any agency or instrumentality of either

such country) to acquire chemical, biological, or nuclear weapons or

to acquire destabilizing numbers and types of advanced conventional weapons, then the sanctions described in subsection (b) shall

be imposed.

(b) MANDATORY SANCTIONS.—The sanctions to be imposed pursuant to subsection (a) are as follows:

(1) PROCUREMENT SANCTION.—For a period of two years,

the United States Government shall not procure, or enter into

any contract for the procurement of, any goods or services from

the sanctioned person.

(2) EXPORT SANCTION.—For a period of two years, the

United States Government shall not issue any license for any

export by or to the sanctioned person.

SEC. 1605. ø50 U.S.C. 1701 note¿ SANCTIONS AGAINST CERTAIN FOREIGN COUNTRIES.

(a) PROHIBITION.—If the President determines that the government of any foreign country transfers or retransfers goods or technology so as to contribute knowingly and materially to the efforts

by Iran or Iraq (or any agency or instrumentality of either such

country) to acquire chemical, biological, or nuclear weapons or to

acquire destabilizing numbers and types of advanced conventional

weapons, then—

(1) the sanctions described in subsection (b) shall be imposed on such country; and

(2) in addition, the President may apply, in the discretion

of the President, the sanction described in subsection (c).

(b) MANDATORY SANCTIONS.—Except as provided in paragraph

(2), the sanctions to be imposed pursuant to subsection (a)(1) are

as follows:

(1) SUSPENSION OF UNITED STATES ASSISTANCE.—The

United States Government shall suspend, for a period of one

year, United States assistance to the sanctioned country.

(2) MULTILATERAL DEVELOPMENT BANK ASSISTANCE.—The

Secretary of the Treasury shall instruct the United States Executive Director to each appropriate international financial institution to oppose, and vote against, for a period of one year,

the extension by such institution of any loan or financial or

technical assistance to the sanctioned country.

(3) SUSPENSION OF CODEVELOPMENT OR COPRODUCTION

AGREEMENTS.—The United States shall suspend, for a period of

one year, compliance with its obligations under any memorandum of understanding with the sanctioned country for the

codevelopment or coproduction of any item on the United

States Munitions List (established under section 38 of the
337 FY93 ARMS CONTROL AND NUCLEAR NONPROLIFERATION

Arms Export Control Act), including any obligation for implementation of the memorandum of understanding through the

sale to the sanctioned country of technical data or assistance

or the licensing for export to the sanctioned country of any

component part.

(4) SUSPENSION OF MILITARY AND DUAL-USE TECHNICAL EXCHANGE AGREEMENTS.—The United States shall suspend, for a

period of one year, compliance with its obligations under any

technical exchange agreement involving military and dual-use

technology between the United States and the sanctioned country that does not directly contribute to the security of the

United States, and no military or dual-use technology may be

exported from the United States to the sanctioned country pursuant to that agreement during that period.

(5) UNITED STATES MUNITIONS LIST.—No item on the

United States Munitions List (established pursuant to section

38 of the Arms Export Control Act) may be exported to the

sanctioned country for a period of one year.

(c) DISCRETIONARY SANCTION.—The sanction referred to in subsection (a)(2) is as follows:

(1) USE OF AUTHORITIES OF INTERNATIONAL EMERGENCY

ECONOMIC POWERS ACT.—Except as provided in paragraph (2),

the President may exercise, in accordance with the provisions

of that Act, the authorities of the International Emergency

Economic Powers Act with respect to the sanctioned country.

(2) EXCEPTION.—Paragraph (1) does not apply with respect

to urgent humanitarian assistance.

SEC. 1606. ø50 U.S.C. 1701 note¿ WAIVER.

The President may waive the requirement to impose a sanction

described in section 1603, in the case of Iran, or a sanction described in section 1604(b) or 1605(b), in the case of Iraq and Iran,

15 days after the President determines and so reports to the Committees on Armed Services and Foreign Relations of the Senate and

the Committees on Armed Services and Foreign Affairs of the

House of Representatives that it is essential to the national interest of the United States to exercise such waiver authority. Any

such report shall provide a specific and detailed rationale for such

determination.

SEC. 1607. ø50 U.S.C. 1701 note¿ REPORTING REQUIREMENT.

(a) ANNUAL REPORT.—øRepealed by section 1308(g)(1)(C) of the

Foreign Relations Authorization Act, Fiscal Year 2003 (Public Law

107–228; 116 Stat. 1441).¿

(b) REPORT ON INDIVIDUAL TRANSFERS.—Whenever the President determines that a person or foreign government has made a

transfer which is subject to any sanction under this title, the President shall, within 30 days after such transfer, submit to the Committees on Armed Services and Foreign Relations of the Senate and

the Committees on Armed Services and Foreign Affairs of the

House of Representatives a report—

(1) identifying the person or government and providing the

details of the transfer; and
FY93 ARMS CONTROL AND NUCLEAR NONPROLIFERATION 338

(2) describing the actions the President intends to undertake or has undertaken under the provisions of this title with

respect to each such transfer.

(c) FORM OF TRANSMITTAL.—Reports required by this section

may be submitted in classified as well as in unclassified form.

SEC. 1608. ø50 U.S.C. 1701 note¿ DEFINITIONS.

For purposes of this title:

(1) The term ‘‘advanced conventional weapons’’ includes—

(A) such long-range precision-guided munitions, fuel

air explosives, cruise missiles, low observability aircraft,

other radar evading aircraft, advanced military aircraft,

military satellites, electromagnetic weapons, and laser

weapons as the President determines destabilize the military balance or enhance offensive capabilities in destabilizing ways;

(B) such advanced command, control, and communications systems, electronic warfare systems, or intelligence

collection systems as the President determines destabilize

the military balance or enhance offensive capabilities in

destabilizing ways; and

(C) such other items or systems as the President may,

by regulation, determine necessary for purposes of this

title.

(2) The term ‘‘cruise missile’’ means guided missiles that

use aerodynamic lift to offset gravity and propulsion to counteract drag.

(3) The term ‘‘goods or technology’’ means—

(A) any article, natural or manmade substance, material, supply, or manufactured product, including inspection

and test equipment; and

(B) any information and know-how (whether in tangible form, such as models, prototypes, drawings, sketches,

diagrams, blueprints, or manuals, or in intangible form,

such as training or technical services) that can be used to

design, produce, manufacture, utilize, or reconstruct goods,

including computer software and technical data.

(4) The term ‘‘person’’ means any United States or foreign

individual, partnership, corporation, or other form of association, or any of their successor entities, parents, or subsidiaries.

(5) The term ‘‘sanctioned country’’ means a country against

which sanctions are required to be imposed pursuant to section

1605.

(6) The term ‘‘sanctioned person’’ means a person that

makes a transfer described in section 1604(a).

(7) The term ‘‘United States assistance’’ means—

(A) any assistance under the Foreign Assistance Act of

1961 (22 U.S.C. 2151 et seq.), other than urgent humanitarian assistance or medicine;

(B) sales and assistance under the Arms Export Control Act;

(C) financing by the Commodity Credit Corporation for

export sales of agricultural commodities; and

(D) financing under the Export-Import Bank Act.
339 FY93 ARMS CONTROL AND NUCLEAR NONPROLIFERATION

h. National Defense Authorization Act for Fiscal Years 1990

and 1991

(Public Law 101–189, approved Nov. 20, 1989)

TITLE X—MATTERS RELATING TO ARMS CONTROL

* * * * * * *

SEC. 1014. [22 U.S.C. 2595 note] UNITED STATES PROGRAM FOR ONSITE INSPECTIONS UNDER ARMS CONTROL AGREEMENTS

(a) FINDINGS CONCERNING ON-SITE INSPECTION PERSONNEL.— Congress makes the following findings:

(1) The United States is currently engaged in multilateral

and bilateral negotiations seeking to achieve treaties or agreements to reduce or eliminate various types of military weapons

and to make certain reductions in military personnel levels.

These negotiations include negotiations for (A) reductions in

strategic forces, conventional armaments, and military personnel levels, (B) regimes for monitoring nuclear testing, and

(C) the complete elimination of chemical weapons.

(2) Requirements for monitoring these possible treaties or

agreements will be extensive and will place severe stress on

the monitoring capabilities of United States national technical

means.

(3) In the case of the INF Treaty, the United States and

the Soviet Union negotiated, and are currently using, on-site

inspection procedures to complement and support monitoring

by national technical means. Similar on-site inspection procedures are being negotiated for inclusion in possible future treaties and agreements referred to in paragraph (1).

(4) During initial implementation of the provisions of the

INF Treaty, the United States was not fully prepared for the

personnel requirements for the conduct of on-site inspections.

The Director of Central Intelligence has stated that on-site inspection requirements for any strategic arms reduction treaty

or agreement will be far more extensive than those for the INF

Treaty. The number of locations within the Soviet Union that

would possibly be subject to on-site inspections under a START

agreement have been estimated to be approximately 2,500

(compared to 120 for the INF Treaty).

(5) On-site inspection procedures are likely to be an integral part of any future arms control treaty or agreement.

(6) Personnel requirements will be extensive for such onsite inspection procedures, both in terms of numbers of personnel and technical and linguistic skills. Since verification requirements for the INF Treaty are already placing severe

stress on current personnel resources, the requirements for

verification under START and other possible future treaties

and agreements may quickly exceed the current number of verification personnel having necessary technical and language

skills.

(7) There is a clear need for a database of the names of

individuals who are members of the Armed Forces or civilian

employees of the United States Government, or of other citizens and nationals of the United States, who are qualified (by
FY93 ARMS CONTROL AND NUCLEAR NONPROLIFERATION 340

reason of technical or language skills) to participate in on-site

inspections under an arms control treaty or agreement.

(8) The organization best suited to establish such a database is the On-Site Inspection Agency (OSIA) of the Department of Defense, which was created by the President to implement (for the United States) the on-site inspection provisions

of the INF Treaty.

(b) STATUS OF THE OSIA.—(1) Congress finds that—

(A) the Director of the OSIA (currently a brigadier general

of the Army) is appointed by the Secretary of Defense with the

concurrence of the Secretary of State and the approval of the

President;

(B) the Secretary of Defense provides to the Director appropriate policy guidance formulated by the interagency arms

control mechanism established by the President;

(C) most of the personnel of the OSIA are members of the

Armed Forces (who are trained and paid by the military departments within the Department of Defense) and include linguists, weapons specialists, and foreign area specialists;

(D) the Department of Defense provides the OSIA with

substantially all of its administrative and logistic support (including military air transportation for inspections in the Soviet

Union and Eastern Europe); and

(E) the facilities in Europe and the United States at which

OSIA personnel escort personnel of the Soviet Union conducting inspections under the on-site inspection terms of the

INF Treaty are under the jurisdiction of the Department of Defense (or under the jurisdiction of entities that are contractors

with the Department of Defense).

(2) In light of the findings in paragraph (1) and the report submitted pursuant to section 909 of Public Law 100–456 entitled ‘‘Report to the Congress on U.S. Monitoring and Verification Activities

Related to the INF Treaty’’ (submitted on July 27, 1989), Congress

hereby determines that by locating the On-Site Inspection Agency

within the Department of Defense for the purposes of administrative and logistic support and operational guidance, and integrating

on-site inspection responsibilities under the INF Treaty with existing organizational activities of that Department, the President has

been able to ensure that sensitive national security assets are protected and that obligations of the United States under that treaty

are fulfilled in an efficient and cost-effective manner.

(c) ESTABLISHMENT OF PERSONNEL DATABASE.—(1) In light of

the findings in subsection (a), the Director of the On-Site Inspection Agency shall establish a database consisting of the names of

individuals who could be assigned or detailed (in the case of Government personnel) or employed (in the case of non-Government

personnel) to participate in the conduct of on-site inspections under

any future arms control treaty or agreement that includes provisions for such inspections.

(2) The database should be composed of the names of individuals with skills (including linguistic and technical skills) necessary

for the conduct of on-site inspections.

(d) INF TREATY DEFINED.—For purposes of this section, the

term ‘‘INF Treaty’’ means the Treaty Between the United States
341 FY93 ARMS CONTROL AND NUCLEAR NONPROLIFERATION

and the Union of Soviet Socialist Republics on the Elimination of

Their Intermediate-Range and Shorter-Range Missiles, signed in

Washington, DC, on December 8, 1987.
342

4. EXPORT CONTROL MATTERS

a. Arms Export Control Act (Public Law 90–629)

AN ACT To consolidate and revise foreign assistance legislation relating to

reimbursable military exports.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That this Act may

be cited as the ‘‘Arms Export Control Act’’.

Chapter 1.—FOREIGN AND NATIONAL SECURITY POLICY

OBJECTIVES AND RESTRAINTS

SECTION 1. ø22 U.S.C. 2751¿ THE NEED FOR INTERNATIONAL

DEFENSE COOPERATION AND MILITARY EXPORT CONTROLS.—As declared by the Congress in the Arms Control and Disarmament Act,

an ultimate goal of the United States continues to be a world which

is free from the scourge of war and the dangers and burdens of armaments; in which the use of force has been subordinated to the

rule of law; and in which international adjustments to a changing

world are achieved peacefully. In furtherance of that goal, it remains the policy of the United States to encourage regional arms

control and disarmament agreements and to discourage arms races.

The Congress recognizes, however, that the United States and

other free and independent countries continue to have valid requirements for effective and mutually beneficial defense relationships in order to maintain and foster the environment of international peace and security essential to social, economic, and political progress. Because of the growing cost and complexity of defense equipment, it is increasingly difficult and uneconomic for any

country, particularly a developing country, to fill all of its legitimate defense requirements from its own design and production

base. The need for international defense cooperation among the

United States and those friendly countries to which it is allied by

mutual defense treaties is especially important, since the effectiveness of their armed forces to act in concert to deter or defeat aggression is directly related to the operational compatibility of their

defense equipment.

Accordingly, it remains the policy of the United States to facilitate the common defense by entering into international arrangements with friendly countries which further the objective of applying agreed resources of each country to programs and projects of

cooperative exchange of data, research, development, production,

procurement, and logistics support to achieve specific national defense requirements and objectives of mutual concern. To this end,
343 Sec. 1 ARMS EXPORT CONTROL ACT

this Act authorizes sales by the United States Government to

friendly countries having sufficient wealth to maintain and equip

their own military forces at adequate strength, or to assume progressively larger shares of the costs thereof, without undue burden

to their economies, in accordance with the restraints and control

measures specified herein and in furtherance of the security objectives of the United States and of the purposes and principles of the

United Nations Charter.

It is the sense of the Congress that all such sales be approved

only when they are consistent with the foreign policy interests of

the United States, the purposes of the foreign assistance program

of the United States as embodied in the Foreign Assistance Act of

1961, as amended, the extent and character of the military requirement, and the economic and financial capability of the recipient

country, with particular regard being given, where appropriate, to

proper balance among such sales, grant military assistance, and

economic assistance as well as to the impact of the sales on programs of social and economic development and on existing or incipient arms races.

It shall be the policy of the United States to exert leadership

in the world community to bring about arrangements for reducing

the international trade in implements of war and to lessen the danger of outbreak of regional conflict and the burdens of armaments.

United States programs for or procedures governing the export,

sale, and grant of defense articles and defense services to foreign

countries and international organizations shall be administered in

a manner which will carry out this policy.

It is the sense of the Congress that the President should seek

to initiate multilateral discussions for the purpose of reaching

agreements among the principal arms suppliers and arms purchasers and other countries with respect to the control of the international trade in armaments. It is further the sense of Congress

that the President should work actively with all nations to check

and control the international sale and distribution of conventional

weapons of death and destruction and to encourage regional arms

control arrangements. In furtherance of this policy, the President

should undertake a concerted effort to convene an international

conference of major arms-supplying and arms-purchasing nations

which shall consider measures to limit conventional arms transfers

in the interest of international peace and stability.

It is the sense of the Congress that the aggregate value of defense articles and defense services—

(1) which are sold under section 21 or section 22 of this

Act; or

(2) which are licensed or approved for export under section

38 of this Act to, for the use, or for benefit of the armed forces,

police, intelligence, or other internal security forces of a foreign

country or international organization under a commercial sales

contract;

in any fiscal year should not exceed current levels.

It is the sense of the Congress that the President maintain adherence to a policy of restraint in conventional arms transfers and

that, in implementing this policy worldwide, a balanced approach

should be taken and full regard given to the security interests of
Sec. 2 ARMS EXPORT CONTROL ACT 344

the United States in all regions of the world and that particular

attention should be paid to controlling the flow of conventional

arms to the nations of the developing world. To this end, the President is encouraged to continue discussions with other arms suppliers in order to restrain the flow of conventional arms to less developed countries.

SEC. 2. ø22 U.S.C. 2752¿ COORDINATION WITH FOREIGN POLICY.—(a) Nothing contained in this Act shall be construed to infringe upon the powers or functions of the Secretary of State.

(b) Under the direction of the President, the Secretary of State

(taking into account other United States activities abroad, such as

military assistance, economic assistance, and food for peace program) shall be responsible for the continuous supervision and general direction of sales, leases, financing, cooperative projects, and

exports under this Act, including, but not limited to, determining—

(1) whether there will be a sale to or financing for a country and the amount thereof;

(2) whether there will be a lease to a country;

(3) whether there will be a cooperative project and the

scope thereof; and

(4) whether there will be delivery or other performance

under the sale, lease, cooperative project, or export,

to the end that sales, financing, leases, cooperative projects, and

exports will be integrated with other United States activities and

to the end that the foreign policy of the United States would be

best served thereby.

(c) The President shall prescribe appropriate procedures to assure coordination among representatives of the United States Government in each country, under the leadership of the Chief of the

United States Diplomatic Mission. The Chief of the diplomatic mission shall make sure that recommendations of such representatives

pertaining to sales are coordinated with political and economic considerations, and his comments shall accompany such recommendations if he so desires.

SEC. 3. ø22 U.S.C. 2753¿ ELIGIBILITY.—(a) No defense article

or defense service shall be sold or leased by the United States Government under this Act to any country or international organization, and no agreement shall be entered into for a cooperative

project (as defined in section 27 of this Act), unless—

(1) the President finds that the furnishing of defense articles and defense services to such country or international organization will strengthen the security of the United States and

promote world peace;

(2) the country or international organization shall have

agreed not to transfer title to, or possession of, any defense article or related training or other defense service so furnished

to it, or produced in a cooperative project (as defined in section

27 of this Act), to anyone not an officer, employee, or agent of

that country or international organization (or the North Atlantic Treaty Organization or the specific member countries (other

than the United States) in the case of a cooperative project)

and not to use or permit the use of such article or related

training or other defense service for purposes other than those
345 Sec. 3 ARMS EXPORT CONTROL ACT

for which furnished unless the consent of the President has

first been obtained;

(3) the country or international organization shall have

agreed that it will maintain the security of such article or service and will provide substantially the same degree of security

protection afforded to such article or service by the United

States Government; and

(4) the country or international organization is otherwise

eligible to purchase or lease defense articles or defense

services.

In considering a request for approval of any transfer of any weapon, weapons system, munitions, aircraft, military boat, military

vessel, or other implement of war to another country, the President

shall not give his consent under paragraph (2) to the transfer unless the United States itself would transfer the defense article

under consideration to that country. In addition, the President

shall not give his consent under paragraph (2) to the transfer of

any significant defense articles on the United States Munitions List

unless the foreign country requesting consent to transfer agrees to

demilitarize such defense articles prior to transfer, or the proposed

recipient foreign country provides a commitment in writing to the

United States Government that it will not transfer such defense articles, if not demilitarized, to any other foreign country or person

without first obtaining the consent of the President. The President

shall promptly submit a report to the Speaker of the House of Representatives and to the Committee on Foreign Relations of the Senate on the implementation of each agreement entered into pursuant to clause (2) of this subsection.

(b) The consent of the President under paragraph (2) of subsection (a) or under paragraph (1) of section 505(a) of the Foreign

Assistance Act of 1961 (as it relates to subparagraph (B) of such

paragraph) shall not be required for the transfer by a foreign country or international organization of defense articles sold by the

United States under this Act if—

(1) such articles constitute components incorporated into

foreign defense articles;

(2) the recipient is the government of a member country of

the North Atlantic Treaty Organization, the Government of

Australia, the Government of Japan, or the Government of

New Zealand;

(3) the recipient is not a country designated under section

620A of the Foreign Assistance Act of 1961;

(4) the United States-origin components are not—

(A) significant military equipment (as defined in section 47(9));

(B) defense articles for which notification to Congress

is required under section 36(b); and

(C) identified by regulation as Missile Technology Control Regime items; and

(5) the foreign country or international organization provides notification of the transfer of the defense articles to the

United States Government not later than 30 days after the

date of such transfer.
Sec. 3 ARMS EXPORT CONTROL ACT 346

(c)(1)(A) No credits (including participations in credits) may be

issued and no guaranties may be extended for any foreign country

under this Act as hereinafter provided, if such country uses defense

articles or defense services furnished under this Act, or any predecessor Act, in substantial violation (either in terms of quantities or

in terms of the gravity of the consequences regardless of the quantities involved) of any agreement entered into pursuant to any such

Act (i) by using such articles or services for a purpose not authorized under section 4 or, if such agreement provides that such articles or services may only be used for purposes more limited than

those authorized under section 4 for a purpose not authorized

under such agreement; (ii) by transferring such articles or services

to, or permitting any use of such articles or services by, anyone not

an officer, employee, or agent of the recipient country without the

consent of the President; or (iii) by failing to maintain the security

of such articles or services.

(B) No cash sales or deliveries pursuant to previous sales may

be made with respect to any foreign country under this Act as hereinafter provided, if such country uses defense articles or defense

services furnished under this Act, or any predecessor Act, in substantial violation (either in terms of quantity or in terms of the

gravity of the consequences regardless of the quantities involved)

of any agreement entered into pursuant to any such Act by using

such articles or services for a purpose not authorized under section

4 or, if such agreement provides that such articles or services may

only be used for purposes more limited than those authorized

under section 4, for a purpose not authorized under such agreement.

(2) The President shall report to the Congress promptly upon

the receipt of information that a violation described in paragraph

(1) of this subsection may have occurred.

(3)(A) A country shall be deemed to be ineligible under subparagraph (A) of paragraph (1) of this subsection, or both subparagraphs (A) and (B) of such paragraph in the case of a violation described in both such paragraphs, if the President so determines and

so reports in writing to the Congress, or if the Congress so determines by joint resolution.

(B) Notwithstanding a determination by the President of ineligibility under subparagraph (B) of paragraph (1) of this subsection,

cash sales and deliveries pursuant to previous sales may be made

if the President certifies in writing to the Congress that a termination thereof would have significant adverse impact on United

States security, unless the Congress adopts or has adopted a joint

resolution pursuant to subparagraph (A) of this paragraph with respect to such ineligibility.

(4) A country shall remain ineligible in accordance with paragraph (1) of this subsection until such time as—

(A) the President determines that the violation has ceased;

and

(B) the country concerned has given assurances satisfactory to the President that such violation will not recur.

(d)(1) Subject to paragraph (5), the President may not give his

consent under paragraph (2) of subsection (a) or under the third

sentence of such subsection, or under section 505(a)(1) or 505(a)(4)
347 Sec. 3 ARMS EXPORT CONTROL ACT

of the Foreign Assistance Act of 1961, to a transfer of any major

defense equipment valued (in terms of its original acquisition cost)

at $14,000,000 or more, or any defense article or related training

or other defense service valued (in terms of its original acquisition

cost) at $50,000,000 or more, unless the President submits to the

Speaker of the House of Representatives and the Committee on

Foreign Relations of the Senate a written certification with respect

to such proposed transfer containing—

(A) the name of the country or international organization

proposing to make such transfer,

(B) a description of the article or service proposed to be

transferred, including its acquisition cost,

(C) the name of the proposed recipient of such article or

service,

(D) the reasons for such proposed transfer, and

(E) the date on which such transfer is proposed to be

made.

Any certification submitted to Congress pursuant to this paragraph

shall be unclassified, except that information regarding the dollar

value and number of articles or services proposed to be transferred

may be classified if public disclosure thereof would be clearly detrimental to the security of the United States.

(2)(A) Except as provided in subparagraph (B), unless the

President states in the certification submitted pursuant to paragraph (1) of this subsection that an emergency exists which requires that consent to the proposed transfer become effective immediately in the national security interests of the United States, such

consent shall not become effective until 30 calendar days after the

date of such submission and such consent shall become effective

then only if the Congress does not enact, within such 30-day period, a joint resolution prohibiting the proposed transfer.

(B) In the case of a proposed transfer to the North Atlantic

Treaty Organization, or any member country of such Organization,

Japan, Australia, or New Zealand, unless the President states in

the certification submitted pursuant to paragraph (1) of this subsection that an emergency exists which requires that consent to the

proposed transfer become effective immediately in the national security interests of the United States, such consent shall not become

effective until fifteen calendar days after the date of such submission and such consent shall become effective then only if the Congress does not enact, within such fifteen-day period, a joint resolution prohibiting the proposed transfer.

(C) If the President states in his certification under subparagraph (A) or (B) that an emergency exists which requires that consent to the proposed transfer become effective immediately in the

national security interests of the United States, thus waiving the

requirements of that subparagraph, the President shall set forth in

the certification a detailed justification for his determination, including a description of the emergency circumstances which necessitate immediate consent to the transfer and a discussion of the national security interests involved.

(D)(i) Any joint resolution under this paragraph shall be considered in the Senate in accordance with the provisions of section
Sec. 3 ARMS EXPORT CONTROL ACT 348

601(b) of the International Security Assistance and Arms Export

Control Act of 1976.

(ii) For the purpose of expediting the consideration and enactment of joint resolutions under this paragraph, a motion to proceed

to the consideration of any such joint resolution after it has been

reported by the appropriate committee shall be treated as highly

privileged in the House of Representatives.

(3)(A) Subject to paragraph (5), the President may not give his

consent to the transfer of any major defense equipment valued (in

terms of its original acquisition cost) at $14,000,000 or more, or of

any defense article or defense service valued (in terms of its original acquisition cost) at $50,000,000 or more, the export of which

has been licensed or approved under section 38 of this Act, unless

before giving such consent the President submits to the Speaker of

the House of Representatives and the Chairman of the Committee

on Foreign Relations of the Senate a certification containing the information specified in subparagraphs (A) through (E) of paragraph

(1). Such certification shall be submitted—

(i) at least 15 calendar days before such consent is given

in the case of a transfer to a country which is a member of the

North Atlantic Treaty Organization or Australia, Japan, or

New Zealand; and

(ii) at least 30 calendar days before such consent is given

in the case of a transfer to any other country,

unless the President states in his certification that an emergency

exists which requires that consent to the proposed transfer become

effective immediately in the national security interests of the

United States. If the President states in his certification that such

an emergency exists (thus waiving the requirements of clause (i) or

(ii), as the case may be, and of subparagraph (B)) the President

shall set forth in the certification a detailed justification for his determination, including a description of the emergency circumstances which necessitate that consent to the proposed transfer

become effective immediately and a discussion of the national security interests involved.

(B) Consent to a transfer subject to subparagraph (A) shall become effective after the end of the 15-day or 30-day period specified

in subparagraph (A)(i) or (ii), as the case may be, only if the Congress does not enact, within that period, a joint resolution prohibiting the proposed transfer.

(C)(i) Any joint resolution under this paragraph shall be considered in the Senate in accordance with the provisions of section

601(b) of the International Security Assistance and Arms Export

Control Act of 1976.

(ii) For the purpose of expediting the consideration and enactment of joint resolutions under this paragraph, a motion to proceed

to the consideration of any such joint resolution after it has been

reported by the appropriate committee shall be treated as highly

privileged in the House of Representatives.

(4) This subsection shall not apply—

(A) to transfers of maintenance, repair, or overhaul defense services, or of the repair parts or other defense articles

used in furnishing such services, if the transfer will not result

in any increase, relative to the original specifications, in the
349 Sec. 4 ARMS EXPORT CONTROL ACT

military capability of the defense articles and services to be

maintained, repaired, or overhauled;

(B) to temporary transfers of defense articles for the sole

purpose of receiving maintenance, repair, or overhaul; or

(C) to arrangements among members of the North Atlantic

Treaty Organization or between the North Atlantic Treaty Organization and any of its member countries—

(i) for cooperative cross servicing, or

(ii) for lead-nation procurement if the certification

transmitted to the Congress pursuant to section 36(b) of

this Act with regard to such lead-nation procurement identified the transferees on whose behalf the lead-nation procurement was proposed.

(5) In the case of a transfer to a member country of the North

Atlantic Treaty Organization (NATO) or Australia, Japan, or New

Zealand that does not authorize a new sales territory that includes

any country other than such countries, the limitations on consent

of the President set forth in paragraphs (1) and (3)(A) shall apply

only if the transfer is—

(A) a transfer of major defense equipment valued (in terms of its original acquisition cost) at $25,000,000 or more; or

(B) a transfer of defense articles or defense services valued

(in terms of its original acquisition cost) at $100,000,000 or

more).

(e) If the President receives any information that a transfer of

any defense article, or related training or other defense service, has

been made without his consent as required under this section or

under section 505 of the Foreign Assistance Act of 1961, he shall

report such information immediately to the Speaker of the House

of Representatives and the Committee on Foreign Relations of the

Senate.

(f) No sales or leases shall be made to any country that the

President has determined is in material breach of its binding commitments to the United States under international treaties or

agreements concerning the nonproliferation of nuclear explosive devices (as defined in section 830(4) of the Nuclear Proliferation Prevention Act of 1994) and unsafeguarded special nuclear material

(as defined in section 830(8) of that Act).

(g) Any agreement for the sale or lease of any article on the

United States Munitions List entered into by the United States

Government after the date of enactment of this subsection shall

state that the United States Government retains the right to verify

credible reports that such article has been used for a purpose not

authorized under section 4 or, if such agreement provides that such

article may only be used for purposes more limited than those authorized under section 4, for a purpose not authorized under such

agreement.

SEC. 4. ø22 U.S.C. 2754¿ PURPOSES FOR WHICH MILITARY

SALES BY THE UNITED STATES ARE AUTHORIZED.—Defense articles

and defense services shall be sold or leased by the United States

Government under this Act to friendly countries solely for internal

security, for legitimate self-defense, for preventing or hindering the

proliferation of weapons of mass destruction and of the means of

delivering such weapons, to permit the recipient country to partici-
Sec. 5 ARMS EXPORT CONTROL ACT 350

pate in regional or collective arrangements or measures consistent

with the Charter of the United Nations, or otherwise to permit the

recipient country to participate in collective measures requested by

the United Nations for the purpose of maintaining or restoring

international peace and security, or for the purpose of enabling foreign military forces in less developed friendly countries to construct

public works and to engage in other activities helpful to the economic and social development of such friendly countries. It is the

sense of the Congress that such foreign military forces should not

be maintained or established solely for civic action activities and

that such civic action activities not significantly detract from the

capability of the military forces to perform their military missions

and be coordinated with and form part of the total economic and

social development effort: Provided, That none of the funds contained in this authorization shall be used to guarantee, or extend

credit, or participate in an extension of credit in connection with

any sale of sophisticated weapons systems, such as missile systems

and jet aircraft for military purposes, to any underdeveloped country other than Greece, Turkey, Iran, Israel, the Republic of China,

the Philippines, and Korea unless the President determines that

such financing is important to the national security of the United

States and reports within thirty days each such determination to

the Congress.

SEC. 5. ø22 U.S.C. 2755¿ PROHIBITION AGAINST DISCRIMINATION.—(a) It is the policy of the United States that no sales should

be made, and no credits (including participations in credits) or

guaranties extended to or for any foreign country, the laws, regulations, official policies, or governmental practices of which prevent

any United States person (as defined in section 7701(a)(30) of the

Internal Revenue Code of 1954) from participating in the furnishing of defense articles or defense services under this Act on the

basis of race, religion, national origin, or sex.

(b)(1) No agency performing functions under this Act shall, in

employing or assigning personnel to participate in the performance

of any such function, whether in the United States or abroad, take

into account the exclusionary policies or practices of any foreign

government where such policies or practices are based upon race,

religion, national origin, or sex.

(2) Each contract entered into by any such agency for the performance of any function under this Act shall contain a provision

to the effect that no person, partnership, corporation, or other entity performing functions pursuant to such contract, shall, in employing or assigning personnel to participate in the performance of any

such function, whether in the United States or abroad, take into

account the exclusionary policies or practices of any foreign government where such policies or practices are based upon race, religion,

national origin, or sex.

(c) The President shall promptly transmit reports to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate concerning any instance

in which any United States person (as defined in section

7701(a)(30) of the Internal Revenue Code of 1954) is prevented by

a foreign government on the basis of race, religion, national origin,

or sex, from participating in the performance of any sale or licensed
351 Sec. 6 ARMS EXPORT CONTROL ACT

transaction under this Act. Such reports shall include (1) a description of the facts and circumstances of any such discrimination, (2)

the response thereto on the part of the United States or any agency

or employee thereof, and (3) the result of such response, if any.

(d)(1) Upon the request of the Committee on Foreign Relations

of the Senate or the Committee on Foreign Affairs of the House of

Representatives, the President shall, within 60 days after the receipt of such request, transmit to both such committees a statement, prepared with the assistance of the Secretary of State, with

respect to the country designated in such request, setting forth—

(A) all the available information about the exclusionary

policies or practices of the government of such country when

such policies or practices are based upon race, religion, national origin or sex and prevent any such person from participating in the performance of any sale or licensed transaction

under this Act;

(B) the response of the United States thereto and the results of such response;

(C) whether, in the opinion of the President, notwithstanding any such policies or practices—

(i) extraordinary circumstances exist which necessitate

a continuation of such sale or licensed transaction, and, if

so, a description of such circumstances and the extent to

which such sale or licensed transaction should be continued (subject to such conditions as Congress may impose

under this section), and

(ii) on all the facts it is in the national interest of the

United States to continue such sale or licensed transaction; and

(D) such other information as such committee may request.

(2) In the event a statement with respect to a sale or licensed

transaction is requested pursuant to paragraph (1) of this subsection but is not transmitted in accordance therewith within 60

days after receipt of such request, such sale or licensed transaction

shall be suspended unless and until such statement is transmitted.

(3)(A) In the event a statement with respect to a sale or licensed transaction is transmitted under paragraph (1) of this subsection, the Congress may at any time thereafter adopt a joint resolution terminating or restricting such sale or licensed transaction.

(B) Any such resolution shall be considered in the Senate in accordance with the provisions of section 601(b) of the International

Security Assistance and Arms Export Control Act of 1976.

(C) The term ‘‘certification’’, as used in section 601 of such Act,

means, for the purposes of this paragraph, a statement transmitted

under paragraph (1) of this subsection.

SEC. 6. ø22 U.S.C. 2756¿ FOREIGN INTIMIDATION AND HARASSMENT OF INDIVIDUALS IN THE UNITED STATES.—No letters of offer

may be issued, no credits or guarantees may be extended, and no

export licenses may be issued under this Act with respect to any

country determined by the President to be engaged in a consistent

pattern of acts of intimidation or harassment directed against individuals in the United States. The President shall report any such

determination promptly to the Speaker of the House of Representa-
Sec. 21 ARMS EXPORT CONTROL ACT 352

tives and to the chairman of the Committee on Foreign Relations

of the Senate.

Chapter 2.—FOREIGN MILITARY SALES

AUTHORIZATIONS

SEC. 21. ø22 U.S.C. 2761¿ SALES FROM STOCKS.—(a)(1) The

President may sell defense articles and defense services from the

stocks of the Department of Defense and the Coast Guard to any

eligible country or international organization if such country or

international organization agrees to pay in United States dollars—

(A) in the case of a defense article not intended to be replaced at the time such agreement is entered into, not less

than the actual value thereof;

(B) in the case of a defense article intended to be replaced

at the time such agreement is entered into, the estimated cost

of replacement of such article, including the contract or production costs less any depreciation in the value of such article; or

(C) in the case of the sale of a defense service, the full cost

to the United States Government of furnishing such service,

except that in the case of training sold to a purchaser who is

concurrently receiving assistance under chapter 5 of part II of

the Foreign Assistance Act of 1961, only those additional costs

that are incurred by the United States Government in furnishing such assistance.

(2) For purposes of subparagraph (A) of paragraph (1), the actual value of a naval vessel of 3,000 tons or less and 20 years or

more of age shall be considered to be not less than the greater of

the scrap value or fair value (including conversion costs) of such

vessel, as determined by the Secretary of Defense.

(b) Except as provided by subsection (d) of this section, payment shall be made in advance or, if the President determines it

to be in the national interest, upon delivery of the defense article

or rendering of the defense service.

(c)(1) Personnel performing defense services sold under this Act

may not perform any duties of a combatant nature, including any

duties related to training and advising that may engage United

States personnel in combat activities, outside the United States in

connection with the performance of those defense services.

(2) Within forty-eight hours of the existence of, or a change in

status of significant hostilities or terrorist acts or a series of such

acts, which may endanger American lives or property, involving a

country in which United States personnel are performing defense

services pursuant to this Act or the Foreign Assistance Act of 1961,

the President shall submit to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, classified if necessary, setting forth—

(A) the identity of such country;

(B) a description of such hostilities or terrorist acts; and

(C) the number of members of the United States Armed

Forces and the number of United States civilian personnel that

may be endangered by such hostilities or terrorist acts.

(d) If the President determines it to be in the national interest

pursuant to subsection (b) of this section, billings for sales made
353 Sec. 21 ARMS EXPORT CONTROL ACT

under letters of offer issued under this section after the enactment

of this subsection may be dated and issued upon delivery of the defense article or rendering of the defense service and shall be due

and payable upon receipt thereof by the purchasing country or

international organization. Interest shall be charged on any net

amount due and payable which is not paid within sixty days after

the date of such billing. The rate of interest charged shall be a rate

not less than a rate determined by the Secretary of the Treasury

taking into consideration the current average market yield on outstanding short-term obligations of the United States as of the last

day of the month preceding the billing and shall be computed from

the date of billing. The President may extend such sixty-day period

to one hundred and twenty days if he determines that emergency

requirements of the purchaser for acquisition of such defense articles or defense services exceed the ready availability to the purchaser of funds sufficient to pay the United States in full for them

within such sixty-day period and submits that determination to the

Congress together with a special emergency request for the authorization and appropriation of additional funds to finance such purchases under this Act.

(e)(1) After September 30, 1976, letters of offer for the sale of

defense articles or for the sale of defense services that are issued

pursuant to this section or pursuant to section 22 of this Act shall

include appropriate charges for—

(A) administrative services, calculated on an average percentage basis to recover the full estimated costs (excluding a

pro rata share of fixed base operations costs) of administration

of sales made under this Act to all purchasers of such articles

and services as specified in section 43(b) and section 43(c) of

this Act;

(B) a proportionate amount of any nonrecurring costs of research, development, and production of major defense equipment (except for equipment wholly paid for either from funds

transferred under section 503(a)(3) of the Foreign Assistance

Act of 1961 or from funds made available on a nonrepayable

basis under section 23 of this Act); and

(C) the recovery of ordinary inventory losses associated

with the sale from stock of defense articles that are being

stored at the expense of the purchaser of such articles.

(2)(A) The President may reduce or waive the charge or

charges which would otherwise be considered appropriate under

paragraph (1)(B) for particular sales that would, if made, significantly advance United States GovernmentArms Export interests in

North Atlantic Treaty Organization standardization, standardization with the Armed Forces of Japan, Australia, or New Zealand

in furtherance of the mutual defense treaties between the United

States and those countries, or foreign procurement in the United

States under coproduction arrangements.

(B) The President may waive the charge or charges which

would otherwise be considered appropriate under paragraph (1)(B)

for a particular sale if the President determines that—

(i) imposition of the charge or charges likely would result

in the loss of the sale; or
Sec. 21 ARMS EXPORT CONTROL ACT 354

(ii) in the case of a sale of major defense equipment that

is also being procured for the use of the Armed Forces, the

waiver of the charge or charges would (through a resulting increase in the total quantity of the equipment purchased from

the source of the equipment that causes a reduction in the unit

cost of the equipment) result in a savings to the United States

on the cost of the equipment procured for the use of the Armed

Forces that substantially offsets the revenue foregone by reason of the waiver of the charge or charges.

(C) The President may waive, for particular sales of major defense equipment, any increase in a charge or charges previously

considered appropriate under paragraph (1)(B) if the increase results from a correction of an estimate (reasonable when made) of

the production quantity base that was used for calculating the

charge or charges for purposes of such paragraph.

(3)(A) The President may waive the charges for administrative

services that would otherwise be required by paragraph (1)(A) in

connection with any sale to the Maintenance and Supply Agency of

the North Atlantic Treaty Organization in support of—

(i) a weapon system partnership agreement; or

(ii) a NATO/SHAPE project.

(B) The Secretary of Defense may reimburse the fund established to carry out section 43(b) of this Act in the amount of the

charges waived under subparagraph (A) of this paragraph. Any

such reimbursement may be made from any funds available to the

Department of Defense.

(C) As used in this paragraph—

(i) the term ‘‘weapon system partnership agreement’’

means an agreement between two or more member countries

of the Maintenance and Supply Agency of the North Atlantic

Treaty Organization that—

(I) is entered into pursuant to the terms of the charter

of that organization; and

(II) is for the common logistic support of a specific

weapon system common to the participating countries; and

(ii) the term ‘‘NATO/SHAPE project’’ means a commonfunded project supported by allocated credits from North Atlantic Treaty Organization bodies or by host nations with

NATO Infrastructure funds.

(f) Any contracts entered into between the United States and

a foreign country under the authority of this section or section 22

of this Act shall be prepared in a manner which will permit them

to be made available for public inspection to the fullest extent possible consistent with the national security of the United States.

(g) The President may enter into North Atlantic Treaty Organization standardization agreements in carrying out section 814 of

the Act of October 7, 1975 (Public Law 94–106), and may enter into

similar agreements with countries which are major non-NATO allies, for the cooperative furnishing of training on a bilateral or multilateral basis, if the financial principles of such agreements are

based on reciprocity. Such agreements shall include reimbursement

for all direct costs but may exclude reimbursement for indirect

costs, administrative surcharges, and costs of billeting of trainees

(except to the extent that members of the United States Armed
355 Sec. 21 ARMS EXPORT CONTROL ACT

Forces occupying comparable accommodations are charged for such

accommodations by the United States). Each such agreement shall

be transmitted promptly to the Speaker of the House of Representatives and the Committees on Appropriations, Armed Services, and

Foreign Relations of the Senate.

(h)(1) The President is authorized to provide (without charge)

quality assurance, inspection, contract administration services, and

contract audit defense services under this section—

(A) in connection with the placement or administration of

any contract or subcontract for defense articles, defense services, or design and construction services entered into after the

date of enactment of this subsection by, or under this Act on

behalf of, a foreign government which is a member of the

North Atlantic Treaty Organization, if such government provides such services in accordance with an agreement on a reciprocal basis, without charge, to the United States Government; or

(B) in connection with the placement or administration of

any contract or subcontract for defense articles, defense services, or design and construction services pursuant to the North

Atlantic Treaty Organization Security Investment program in

accordance with an agreement under which the foreign governments participating in such program provide such services,

without charge, in connection with similar contracts or subcontracts.

(2) In carrying out the objectives of this section, the President

is authorized to provide cataloging data and cataloging services,

without charge, to the North Atlantic Treaty Organization or to

any member government of that Organization if that Organization

or member government provides such data and services in accordance with an agreement on a reciprocal basis, without charge, to

the United States Government.

(i)(1) Sales of defense articles and defense services which could

have significant adverse effect on the combat readiness of the

Armed Forces of the United States shall be kept to an absolute

minimum. The President shall transmit to the Speaker of the

House of Representatives and the Committees on Armed Services

and Foreign Relations of the Senate on the same day a written

statement giving a complete explanation with respect to any proposal to sell, under this section or under authority of chapter 2B,

any defense articles or defense services if such sale could have a

significant adverse effect on the combat readiness of the Armed

Forces of the United States. Each such statement shall be unclassified except to the extent that public disclosure of any item of information contained therein would be clearly detrimental to the security of the United States. Any necessarily classified information

shall be confined to a supplemental report. Each such statement

shall include an explanation relating to only one such proposal to

sell and shall set forth—

(A) the country or international organization to which the

sale is proposed to be made;

(B) the amount of the proposed sale;

(C) a description of the defense article or service proposed

to be sold;
Sec. 21 ARMS EXPORT CONTROL ACT 356

(D) a full description of the impact which the proposed sale

will have on the Armed Forces of the United States; and

(E) a justification for such proposed sale, including a certification that such sale is important to the security of the

United States.

A certification described in subparagraph (E) shall take effect on

the date on which such certification is transmitted and shall remain in effect for not to exceed one year.

(2) No delivery may be made under any sale which is required

to be reported under paragraph (1) of this subsection unless the

certification required to be transmitted by paragraph (E) of paragraph (1) is in effect.

(j) [Repealed—P.L. 104–106]

(k) Before entering into the sale under this Act of defense articles that are excess to the stocks of the Department of Defense, the

President shall determine that the sale of such articles will not

have an adverse impact on the national technology and industrial

base and, particularly, will not reduce the opportunities of entities

in the national technology and industrial base to sell new or used

equipment to the countries to which such articles are transferred.

(l) REPAIR OF DEFENSE ARTICLES.— (1) IN GENERAL.—The President may acquire a repairable

defense article from a foreign country or international organization if such defense article—

(A) previously was transferred to such country or organization under this Act;

(B) is not an end item; and

(C) will be exchanged for a defense article of the same

type that is in the stocks of the Department of Defense.

(2) LIMITATION.—The President may exercise the authority

provided in paragraph (1) only to the extent that the Department of Defense—

(A)(i) has a requirement for the defense article being

returned; and

(ii) has available sufficient funds authorized and appropriated for such purpose; or

(B)(i) is accepting the return of the defense article for

subsequent transfer to another foreign government or

international organization pursuant to a letter of offer and

acceptance implemented in accordance with this Act; and

(ii) has available sufficient funds provided by or on behalf of such other foreign government or international organization pursuant to a letter of offer and acceptance implemented in accordance with this Act.

(3) REQUIREMENT.—(A) The foreign government or international organization receiving a new or repaired defense article in exchange for a repairable defense article pursuant to

paragraph (1) shall, upon the acceptance by the United States

Government of the repairable defense article being returned,

be charged the total cost associated with the repair and replacement transaction.

(B) The total cost charged pursuant to subparagraph (A)

shall be the same as that charged the United States Armed

Forces for a similar repair and replacement transaction, plus
357 Sec. 22 ARMS EXPORT CONTROL ACT

an administrative surcharge in accordance with subsection

(e)(1)(A) of this section.

(4) RELATIONSHIP TO CERTAIN OTHER PROVISIONS OF LAW.— The authority of the President to accept the return of a repairable defense article as provided in subsection (a) shall not be

subject to chapter 137 of title 10, United States Code, or any

other provision of law relating to the conclusion of contracts.

(m) RETURN OF DEFENSE ARTICLES.— (1) IN GENERAL.—The President may accept the return of

a defense article from a foreign country or international organization if such defense article—

(A) previously was transferred to such country or organization under this Act;

(B) is not significant military equipment (as defined in

section 47(9) of this Act); and

(C) is in fully functioning condition without need of repair or rehabilitation.

(2) LIMITATION.—The President may exercise the authority

provided in paragraph (1) only to the extent that the Department of Defense—

(A)(i) has a requirement for the defense article being

returned; and

(ii) has available sufficient funds authorized and appropriated for such purpose; or

(B)(i) is accepting the return of the defense article for

subsequent transfer to another foreign government or

international organization pursuant to a letter of offer and

acceptance implemented in accordance with this Act; and

(ii) has available sufficient funds provided by or on behalf of such other foreign government or international organization pursuant to a letter of offer and acceptance implemented in accordance with this Act.

(3) CREDIT FOR TRANSACTION.—Upon acquisition and acceptance by the United States Government of a defense article

under paragraph (1), the appropriate Foreign Military Sales

account of the provider shall be credited to reflect the transaction.

(4) RELATIONSHIP TO CERTAIN OTHER PROVISIONS OF LAW.—

The authority of the President to accept the return of a defense

article as provided in paragraph (1) shall not be subject to

chapter 137 of title 10, United States Code, or any other provision of law relating to the conclusion of contracts.

SEC. 22. ø22 U.S.C. 2762¿ PROCUREMENT FOR CASH SALES.—

(a) Except as otherwise provided in this section, the President may,

without requirement for charge to any appropriation or contract

authorization otherwise provided, enter into contracts for the procurement of defense articles or defense services for sale for United

States dollars to any foreign country or international organization

if such country or international organization provides the United

States Government with a dependable undertaking (1) to pay the

full amount of such contract which will assure the United States

Government against any loss on the contract, and (2) to make

funds available in such amounts and at such times as may be required to meet the payments required by the contract and any
Sec. 23 ARMS EXPORT CONTROL ACT 358

damages and costs that may accrue from the cancellation of such

contract, in advance of the time such payments, damages, or costs

are due. Interest shall be charged on any net amount by which any

such country or international organization is in arrears under all

of its outstanding unliquidated dependable undertakings, considered collectively. The rate of interest charged shall be a rate not

less than a rate determined by the Secretary of the Treasury taking into consideration the current average market yield on outstanding short-term obligations of the United States as of the last

day of the month preceding the net arrearage and shall be computed from the date of net arrearage.

(b) The President may, if he determines it to be in the national

interest, issue letters of offer under this section which provide for

billing upon delivery of the defense article or rendering of the defense service and for payment within one hundred and twenty days

after the date of billing. This authority may be exercised, however,

only if the President also determines that the emergency requirements of the purchaser for acquisition of such defense articles and

services exceed the ready availability to the purchaser of funds sufficient to make payments on a dependable undertaking basis and

submits both determinations to the Congress together with a special emergency request for authorization and appropriation of additional funds to finance such purchases under this Act. Appropriations available to the Department of Defense may be used to meet

the payments required by the contracts for the procurement of defense articles and defense services and shall be reimbursed by the

amounts subsequently received from the country or international

organization to whom articles or services are sold.

(c) The provisions of the Renegotiation Act of 1951 do not apply

to procurement contracts, heretofore or hereafter entered into

under this section, section 29, or predecessor provisions of law.

(d) COMPETITIVE PRICING.—(1) Procurement contracts made in

implementation of sales under this section for defense articles and

defense services wholly paid for from funds made available on a

nonrepayable basis shall be priced on the same costing basis with

regard to profit, overhead, independent research and development,

bid and proposal, and other costing elements, as is applicable to

procurements of like items purchased by the Department of Defense for its own use.

(2) Direct costs associated with meeting additional or unique

requirements of the purchaser shall be allowable under contracts

described in paragraph (1). Loadings applicable to such direct costs

shall be permitted at the same rates applicable to procurement of

like items purchased by the Department of Defense for its own use.

SEC. 23. ø22 U.S.C. 2763¿ CREDIT SALES.—(a) The President is

authorized to finance the procurement of defense articles, defense

services, and design and construction services by friendly foreign

countries and international organizations, on such terms and conditions as he may determine consistent with the requirements of this

section. Notwithstanding any other provision of law, and subject to

the regular notification requirements of the Committees on Appropriations, the authority of this section may be used to provide financing to Israel and Egypt for the procurement by leasing (including leasing with an option to purchase) of defense articles from
359 Sec. 23 ARMS EXPORT CONTROL ACT

United States commercial suppliers, not including Major Defense

Equipment (other than helicopters and other types of aircraft having possible civilian application), if the President determines that

there are compelling foreign policy or national security reasons for

those defense articles being provided by commercial lease rather

than by government-to-government sale under this Act.

(b) The President shall require repayment in United States

dollars within a period not to exceed twelve years after the loan

agreement with the country or international organization is signed

on behalf of the United States Government, unless a longer period

is specifically authorized by statute for that country or international organization.

(c)(1) The President shall charge interest under this section at

such rate as he may determine, except that such rate may not be

less than 5 percent per year.

(2) For purposes of financing provided under this section—

(A) the term ‘‘concessional rate of interest’’ means any rate

of interest which is less than market rates of interest; and

(B) the term ‘‘market rate of interest’’ means any rate of

interest which is equal to or greater than the current average

interest rate (as of the last day of the month preceding the financing of the procurement under this section) that the United

States Government pays on outstanding marketable obligations of comparable maturity.

(d) References in any law to credits extended under this section

shall be deemed to include reference to participations in credits.

(e) (1) Funds made available to carry out this section may be

used by a foreign country to make payments of principal and interest which it owes to the United States Government on account of

credits previously extended under this section or loans previously

guaranteed under section 24, subject to paragraph (2).

(2) Funds made available to carry out this section may not be

used for prepayment of principal or interest pursuant to the authority of paragraph (1).

(f) For each fiscal year, the Secretary of Defense, as requested

by the Director of the Defense Security Assistance Agency, shall

conduct audits on a nonreimbursable basis of private firms that

have entered into contracts with foreign governments under which

defense articles, defense services, or design and construction services are to be procured by such firms for such governments from

financing under this section.

(g)(1) For each country and international organization that has

been approved for cash flow financing under this section, any letter

of offer and acceptance or other purchase agreement, or any

amendment thereto, for a procurement of defense articles, defense

services, or design and construction services in excess of

$100,000,000 that is to be financed in whole or in part with funds

made available under this Act or the Foreign Assistance Act of

1961 shall be submitted to the congressional committees specified

in section 634A(a) of the Foreign Assistance Act of 1961 in accordance with the procedures applicable to reprogramming notifications

under that section.
Sec. 24 ARMS EXPORT CONTROL ACT 360

(2) For purposes of this subsection, the term ‘‘cash flow financing’’ has the meaning given such term in subsection (d) of section

25, as added by section 112(b) of Public Law 99–83.

(h) Of the amounts made available for a fiscal year to carry out this section, not more than $100,000,000 for such fiscal year may

be made available for countries other than Israel and Egypt for the

purpose of financing the procurement of defense articles, defense

services, and design and construction services that are not sold by

the United States Government under this Act.

SEC. 24. ø22 U.S.C. 2764¿ GUARANTIES.—(a) The President

may guarantee any individual, corporation, partnership, or other

juridical entity doing business in the United States (excluding

United States Government agencies other than the Federal Financing Bank) against political and credit risks of nonpayment arising

out of their financing of credit sales of defense articles, defense

services, and design and construction services to friendly countries

and international organizations. Fees shall be charged for such

guaranties.

(b) The President may sell to any individual, corporation, partnership, or other juridical entity (excluding United States Government agencies other than the Federal Financing Bank) promissory

notes issued by friendly countries and international organizations

as evidence of their obligations to make repayments to the United

States on account of credit sales financed under section 23, and

may guarantee payment thereof.

(c) Funds obligated under this section before the date of enactment of the International Security and Development Cooperation

Act of 1980 which constitute a single reserve for the payment of

claims under guaranties issued under this section shall remain

available for expenditure for the purposes of this section on and

after that date. That single reserve may, on and after the date of

enactment of the International Security and Development Cooperation Act of 1985, be referred to as the ‘‘Guaranty Reserve Fund.’’

Funds provided for necessary expenses to carry out the provisions

of section 23 of the Arms Export Control Act and of section 503 of

the Foreign Assistance Act of 1961, as amended, may be used to

pay claims on the Guaranty Reserve Fund to the extent that funds

in the Guaranty Reserve Fund are inadequate for that purpose. For

purposes of any provision in this Act or any other Act relating to

a prohibition or limitation on the availability of funds under this

Act, whenever a guaranty is issued under this section, the principal

amount of the loan so guaranteed shall be deemed to be funds

made available for use under this Act. Any guaranties issued hereunder shall be backed by the full faith and credit of the United

States.

SEC. 25. ø22 U.S.C. 2765¿ ANNUAL ESTIMATE AND JUSTIFICA- TION FOR SALES PROGRAM.—(a) Except as provided in subsection (d)

of this section, no later than February 1 of each year, the President

shall transmit to the appropriate congressional committees, as a

part of the annual presentation materials for security assistance

programs proposed for the next fiscal year, a report which sets

forth—

(1) an Arms Sales Proposal covering all sales and licensed

commercial exports under this Act of major weapons or weap-
361 Sec. 25 ARMS EXPORT CONTROL ACT

ons-related defense equipment for $7,000,000 or more, or of

any other weapons or weapons-related defense equipment for

$25,000,000 or more, which are considered eligible for approval

during the current calendar year, together with an indication

of which sales and licensed commercial exports are deemed

most likely actually to result in the issuance of a letter of offer

or of an export license during such year;

(2) an estimate of the total amount of sales and licensed

commercial exports expected to be made to each foreign nation

from the United States;

(3) the United States national security considerations involved in expected sales or licensed commercial exports to each

country, an analysis of the relationship between anticipated

sales to each country and arms control efforts concerning such

country and an analysis of the impact of such anticipated sales

on the stability of the region that includes such country;

(4) an estimate with regard to the international volume of

arms traffic to and from nations purchasing arms as set forth

in paragraphs (1) and (2) of this subsection, together with best

estimates of the sale and delivery of weapons and weapons-related defense equipment by all major arms suppliers to all

major recipient countries during the preceding fiscal year;

(5)(A) an estimate of the aggregate dollar value and quantity of defense articles and defense services, military education

and training, grant military assistance, and credits and guarantees, to be furnished by the United States to each foreign

country and international organization in the next fiscal year;

and

(B) for each country that is proposed to be furnished credits or guaranties under this Act in the next fiscal year and that

has been approved for cash flow financing (as defined in subsection (d) of this section) in excess of $100,000,000 as of October 1 of the current fiscal year—

(i) the amount of such approved cash flow financing,

(ii) a description of administrative ceilings and controls applied, and

(iii) a description of the financial resources otherwise

available to such country to pay such approved cash flow

financing;

(6) an analysis and description of the services performed

during the preceding fiscal year by officers and employees of

the United States Government carrying out functions on a fulltime basis under this Act for which reimbursement is provided

under section 43(b) or section 21(a) of this Act, including the

number of personnel involved in performing such services;

(7) the total amount of funds in the reserve under section

24(c) at the end of the fiscal year immediately preceding the

fiscal year in which a report under this section is made, together with an assessment of the adequacy of such total

amount of funds as a reserve for the payment of claims under

guaranties issued pursuant to section 24 in view of the current

debt servicing capacity of borrowing countries, as reported to

the Congress pursuant to section 634(a)(5) of the Foreign Assistance Act of 1961;
Sec. 25 ARMS EXPORT CONTROL ACT 362

(8) a list of all countries with respect to which findings

made by the President pursuant to section 3(a)(1) of this Act

are in effect on the date of such transmission;

(9) the progress made under the program of the Republic

of Korea to modernize its armed forces, the role of the United

States in mutual security efforts in the Republic of Korea and

the military balance between the People’s Republic of Korea

and the Republic of Korea;

(10) the amount and nature of Soviet military assistance

to the armed forces of Cuba during the preceding fiscal year

and the military capabilities of those armed forces;

(11) the status of each loan and each contract of guaranty

or insurance theretofore made under the Foreign Assistance

Act of 1961, predecessor Acts, or any Act authorizing international security assistance, with respect to which there remains outstanding any unpaid obligation or potential liability;

the status of each extension of credit for the procurement of defense articles or defense services, and of each contract of guaranty in connection with any such procurement, theretofore

made under the Arms Export Control Act with respect to

which there remains outstanding any unpaid obligation or potential liability;

(12)(A) a detailed accounting of all articles, services, credits, guarantees, or any other form of assistance furnished by

the United States to each country and international organization, including payments to the United Nations, during the

preceding fiscal year for the detection and clearance of landmines, including activities relating to the furnishing of education, training, and technical assistance for the detection and

clearance of landmines; and

(B) for each provision of law making funds available or authorizing appropriations for demining activities described in

subparagraph (A), an analysis and description of the objectives

and activities undertaken during the preceding fiscal year, including the number of personnel involved in performing such

activities;

(13) a list of weapons systems that are significant military

equipment (as defined in section 47(9) of this Act), and numbers thereof, that are believed likely to become available for

transfer as excess defense articles during the next 12 months;

and

(14) such other information as the President may deem

necessary.

(b) Not later than thirty days following the receipt of a request

made by any of the congressional committees described in subsection (e) for additional information with respect to any information submitted pursuant to subsection (a), the President shall submit such information to such committee.

(c) The President shall make every effort to submit all of the

information required by subsection (a) or (b) wholly in unclassified

form. Whenever the President submits any such information in

classified form, he shall submit such classified information in an

addendum and shall also submit simultaneously a detailed summary, in unclassified form, of such classified information.
363 Sec. 27 ARMS EXPORT CONTROL ACT

1Two subsections (d) have been enacted. The second subsection (d) should end with a period.

(d) 1 The information required by subsection (a)(4) of this section shall be transmitted to the Congress no later than April 1 of

each year.

(d) 1 For the purposes of subsection (a)(5)(B) of this section, the

term ‘‘cash flow financing’’ means the dollar amount of the difference between the total estimated price of a Letter of Offer and

Acceptance or other purchase agreement that has been approved

for financing under this Act or under section 503(a)(3) of the Foreign Assistance Act of 1961 and the amount of the financing that

has been approved therefor;

(e) As used in this section, the term ‘‘appropriate congressional

committees’’ means the Committee on Foreign Relations and the

Committee on Appropriations of the Senate and the Committee on

International Relations and the Committee on Appropriations of

the House of Representatives.

SEC. 26. ø22 U.S.C. 2766¿ SECURITY ASSISTANCE SURVEYS.—(a)

The Congress finds that surveys prepared by the United States for

foreign countries have had a significant impact on subsequent military procurement decisions of those countries. It is the policy of the

United States that the results of security assistance surveys conducted by the United States clearly do not represent a commitment

by the United States to provide any military equipment to any foreign country. Further, recommendations in such surveys should be

consistent with the arms export control policy provided for in this

Act.

(b) As part of the quarterly report required by section 36(a) of

this Act, the President shall include a list of all security assistance

surveys authorized during the preceding calendar quarter, specifying the country with respect to which the survey was or will be

conducted, the purpose of the survey, and the number of United

States Government personnel who participated or will participate

in the survey.

(c) Upon a request of the chairman of the Committee on Foreign Affairs of the House of Representatives or the chairman of the

Committee on Foreign Relations of the Senate, the President shall

submit to that committee copies of security assistance surveys conducted by United States Government personnel.

(d) As used in this section, the term ‘‘security assistance surveys’’ means any survey or study conducted in a foreign country by

United States Government personnel for the purpose of assessing

the needs of that country for security assistance, and includes defense requirement surveys, site surveys, general surveys or studies,

and engineering assessment surveys.

SEC. 27. ø22 U.S.C. 2767¿ AUTHORITY OF PRESIDENT TO ENTER

INTO COOPERATIVE PROJECTS WITH FRIENDLY FOREIGN COUN- TRIES.—(a) The President may enter into a cooperative project

agreement with the North Atlantic Treaty Organization or with

one or more member countries of that Organization.

(b) As used in this section—

(1) the term ‘‘cooperative project’’ in the case of an agreement with the North Atlantic Treaty Organization or with one

or more member countries of that Organization, means a joint-
Sec. 27 ARMS EXPORT CONTROL ACT 364

ly managed arrangement, described in a written agreement

among the parties, which is undertaken in order to further the

objectives of standardization, rationalization, and interoperability of the armed forces of North Atlantic Treaty Organization member countries forces and which provides—

(A) for one or more of the other participants to share

with the United States the costs of research on and development, testing, evaluation, or joint production (including

follow-on support) of certain defense articles;

(B) for concurrent production in the United States and

in another member country of a defense article jointly developed in accordance with subparagraph (A); or

(C) for procurement by the United States of a defense

article or defense service from another member country or

for procurement by the United States of munitions from

the North Atlantic Treaty Organization or a subsidiary of

such organization;

(2) the term ‘‘cooperative project’’, in the case of an agreement entered into under subsection (j), means a jointly managed arrangement, described in a written agreement among

the parties, which is undertaken in order to enhance the ongoing multinational effort of the participants to improve the conventional defense capabilities of the participants and which

provides—

(A) for one or more of the other participants to share

with the United States the costs of research on and development, testing, evaluation, or joint production (including

follow-on support) of certain defense articles;

(B) for concurrent production in the United States and

in the country of another participant of a defense article

jointly developed in accordance with subparagraph (A); or

(C) for procurement by the United States of a defense

article or defense service from another participant to the

agreement; and

(3) the term ‘‘other participant’’ means a participant in a

cooperative project other than the United States.

(c) Each agreement for a cooperative project shall provide that

the United States and each of the other participants will contribute

to the cooperative project its equitable share of the full cost of such

cooperative project and will receive an equitable share of the results of such cooperative project. The full costs of such cooperative

project shall include overhead costs, administrative costs, and costs

of claims. The United States and the other participants may contribute their equitable shares of the full cost of such cooperative

project in funds or in defense articles or defense services needed for

such cooperative project. Military assistance and financing received

from the United States Government may not be used by any other

participant to provide its share of the cost of such cooperative

project. Such agreements shall provide that no requirement shall

be imposed by a participant for worksharing or other industrial or

commercial compensation in connection with such agreement that

is not in accordance with such agreement.

(d) The President may enter into contracts or incur other obligations for a cooperative project on behalf of the other participants,
365 Sec. 27 ARMS EXPORT CONTROL ACT

without charge to any appropriation or contract authorization, if

each of the other participants in the cooperative project agrees (1)

to pay its equitable share of the contract or other obligation, and

(2) to make such funds available in such amounts and at such

times as may be required by the contract or other obligation and

to pay any damages and costs that may accrue from the performance of or cancellation of the contract or other obligation in advance of the time such payments, damages, or costs are due.

(e)(1) For those cooperative projects entered into on or after the

effective date of the International Security and Development Cooperation Act of 1985, the President may reduce or waive the

charge or charges which would otherwise be considered appropriate

under section 21(e) of this Act in connection with sales under sections 21 and 22 of this Act when such sales are made as part of

such cooperative project, if the other participants agree to reduce

or waive corresponding charges.

(2) Notwithstanding provisions of section 21(e)(1)(A) and section 43(b) of this Act, administrative surcharges shall not be increased on other sales made under this Act in order to compensate

for reductions or waivers of such surcharges under this section.

Funds received pursuant to such other sales shall not be available

to reimburse the costs incurred by the United States Government

for which reduction or waiver is approved by the President under

this section.

(f) Not less than 30 days before a cooperative project agreement is signed on behalf of the United States, the President shall

transmit to the Speaker of the House of Representatives, the chairman of the Committee on Foreign Relations of the Senate, and the

chairman of the Committee on Armed Services of the Senate, a

numbered certification with respect to such proposed agreement,

setting forth—

(1) a detailed description of the cooperative project with respect to which the certification is made;

(2) an estimate of the quantity of the defense articles expected to be produced in furtherance of such cooperative

project;

(3) an estimate of the full cost of the cooperative project,

with an estimate of the part of the full cost to be incurred by

the United States Government, including an estimate of the

costs as a result of waivers of section 21(e)(1)(A) and 43(b) of

this Act, for its participation in such cooperative project and an

estimate of that part of the full costs to be incurred by the

other participants;

(4) an estimate of the dollar value of the funds to be contributed by the United States and each of the other participants on behalf of such cooperative project;

(5) a description of the defense articles and defense services expected to be contributed by the United States and each

of the other participants on behalf of such cooperative project;

(6) a statement of the foreign policy and national security

benefits anticipated to be derived from such cooperative

project; and

(7) to the extent known, whether it is likely that prime

contracts will be awarded to particular prime contractors or
Sec. 29 ARMS EXPORT CONTROL ACT 366

that subcontracts will be awarded to particular subcontractors

to comply with the proposed agreement.

(g) In the case of a cooperative project with a North Atlantic

Treaty Organization country, section 36(b) of this Act shall not

apply to sales made under section 21 or 22 of this Act and to production and exports made pursuant to cooperative projects under

this section, and section 36(c) of this Act shall not apply to the

issuance of licenses or other approvals under section 38 of this Act,

if such sales are made, such production and exports ensue, or such

licenses or approvals are issued, as part of a cooperative project.

(h) The authority under this section is in addition to the authority under sections 21 and 22 of this Act and under any other

provision of law.

(i)(1) With the approval of the Secretary of State and the Secretary of Defense, a cooperative agreement which was entered into

by the United States before the effective date of the amendment to

this section made by the International Security and Development

Cooperation Act of 1985 and which meets the requirements of this

section as so amended may be treated on and after such date as

having been made under this section as so amended.

(2) Notwithstanding the amendment made to this section made

by the International Security and Development Cooperation Act of

1985, projects entered into under the authority of this section before the effective date of that amendment may be carried through

to conclusion in accordance with the terms of this section as in effect immediately before the effective date of that amendment.

(j)(1) The President may enter into a cooperative project agreement with any friendly foreign country not a member of the North

Atlantic Treaty Organization under the same general terms and

conditions as the President is authorized to enter into such an

agreement with one or more member countries of the North Atlantic Treaty Organization if the President determines that the cooperative project agreement with such country would be in the foreign policy or national security interests of the United States.

(2) Not later than January 1 of each year, the President shall

submit to the Committees on Armed Services and Foreign Relations of the Senate and to the Committees on Armed Services and

Foreign Affairs of the House of Representatives a report specifying

(A) the countries eligible for participation in such a cooperative

project agreement under this subsection, and (B) the criteria used

to determine the eligibility of such countries.

[SEC. 28. REPORTS ON PRICE AND AVAILABLILITY ESTIMATES.—

Repealed—Section 1064(a) of Public Law 104–106; 110 Stat. 445]

Chapter 2A—Foreign Military Construction Sales

SEC. 29. ø22 U.S.C. 2769¿ FOREIGN MILITARY CONSTRUCTION

SALES.—The President may sell design and construction services to

any eligible foreign country or international organization if such

country or international organization agrees to pay in United

States dollars not less than the full cost to the United States Government of furnishing such services. Payment shall be made to the

United States Government in advance of the performance of such

services by officers or employees of the United States Government.
367 Sec. 30 ARMS EXPORT CONTROL ACT

The President may, without requirement for charge to any appropriation or contract authorization otherwise provided, enter into

contracts for the procurement of design and construction services

for sale under this section if such country or international organization provides the United States Government with a dependable

undertaking (1) to pay the full amount of such contract which will

assure the United States Government against any loss on the contract, and (2) to make funds available in such amounts and at such

time as may be required to meet the payments required by the contract and any damages and costs that may accrue from the cancellation of such contract, in advance of the time such payments,

damages, or costs are due.

Chapter 2B.—SALES TO UNITED STATES COMPANIES

FOR INCORPORATION INTO END ITEMS

SEC. 30. ø22 U.S.C. 2770¿ GENERAL AUTHORITY.—(a) Subject

to the conditions specified in subsection (b) of this section, the

President may, on a negotiated contract basis, under cash terms (1)

sell defense articles at not less than their estimated replacement

cost (or actual cost in the case of services), or (2) procure or manufacture and sell defense articles at not less than their contract or

manufacturing cost to the United States Government, to any

United States company for incorporation into end items (and for

concurrent or follow-on support) to be sold by such a company either (i) on a direct commercial basis to a friendly foreign country

or international organization pursuant to an export license or approval under section 38 of this Act or (ii) in the case of ammunition

parts subject to subsection (b) of this section, using commercial

practices which restrict actual delivery directly to a friendly foreign

country or international organization pursuant to approval under

section 38 of this Act. The President may also sell defense services

in support of such sales of defense articles, subject to the requirements of this chapter: Provided, however, That such services may

be performed only in the United States. The amount of reimbursement received from such sales shall be credited to the current applicable appropriation, fund, or account of the selling agency of the

United States Government.

(b) Defense articles and defense services may be sold, procured

and sold, or manufactured and sold, pursuant to subsection (a) of

this section only if (1) the end item to which the articles apply is

to be procured for the armed forces of a friendly country or international organization, (2) the articles would be supplied to the

prime contractor as government-furnished equipment or materials

if the end item were being procured for the use of the United

States Armed Forces, and (3) the articles and services are available

only from United States Government sources or are not available

to the prime contractor directly from United States commercial

sources at such times as may be required to meet the prime contractor’s delivery schedule.

(c) For the purpose of this section, the terms ‘‘defense articles’’

and ‘‘defense services’’ mean defense articles and defense services

as defined in sections 47(3) and 47(4) of this Act.
Sec. 30 ARMS EXPORT CONTROL ACT 368

Chapter 2C—Exchange of Training and Related Support

SEC. 30A. ø22 U.S.C. 2770a¿ EXCHANGE OF TRAINING AND RE- LATED SUPPORT.—(a) Subject to subsection (b), the President may

provide training and related support to military and civilian defense personnel of a friendly foreign country or an international organization. Such training and related support shall be provided by

a Secretary of a military department and may include the provision

of transportation, food services, health services, and logistics and

the use of facilities and equipment.

(b) Training and related support may be provided under this

section only pursuant to an agreement or other arrangements providing for the provision by the recipient foreign country or international organization, on a reciprocal basis, of comparable training

and related support to military and civilian personnel under the jurisdiction of the Secretary of the military department providing the

training and related support under this section. Such reciprocal

training and related support must be provided within a reasonable

period of time (which may not be more than one year) of the provision of training and related support by the United States. To the

extent that a foreign country or international organization to which

training and related support is provided under this section does not

provide such comparable training and related support to the

United States within a reasonable period of time, that country or

international organization shall be required to reimburse the

United States for the full costs of the training and related support

provided by the United States.

(c) Training and related support under this section shall be

provided under regulations prescribed by the President.

(d) Not later than February 1 of each year, the President shall

submit to the Congress a report on the activities conducted pursuant to this section during the preceding fiscal year, including the

estimated full costs of the training and related support provided by

the United States to each country and international organization

and the estimated value of the training and related support provided to the United States by that country or international organization.

Chapter 3.—MILITARY EXPORT CONTROLS

SEC. 31. AUTHORIZATION AND AGGREGATE CEILING ON FOREIGN

MILITARY SALES CREDITS.—(a) There are authorized to be appropriated to the President to carry out this Act $5,371,000,000 for fiscal

year 1986 and $5,371,000,000 for the fiscal 1987. Credits may not

be extended under section 23 of this Act in an amount, and loans

may not be guaranteed under section 24(a) of this Act in a principal amount, which exceeds any maximum amount which may be

established with respect to such credits or such loan guarantees in

legislation appropriating funds to carry out this Act. Unobligated

balances of funds made available pursuant to this section are hereby authorized to be continued available by appropriations legislation to carry out this Act.

(b)(1) The total amount of credits extended under section 23 of

this Act shall not exceed $5,371,000,000 for fiscal year 1986 and

$5,371,000,000 for fiscal year 1987.
369 Sec. 36 ARMS EXPORT CONTROL ACT

(2) Of the aggregate amount of financing provided under this

section, not more than $553,900,000 for fiscal year 1986 and not

more than $553,900,000 for fiscal year 1987 may be made available

at concessional rates of interest. If a country is released from its

contractual liability to repay the United States Government with

respect to financing provided under this section, such financing

shall not be considered to be financing provided at concessional

rates of interest for purposes of the limitation established by this

paragraph.

(c) Loans available under section 23 shall be provided at rates

of interest that are not less than the current average market yield

on outstanding marketable obligations of the United States of comparable maturities.

SEC. 32. ø22 U.S.C. 2772¿ PROHIBITION AGAINST CERTAIN MILITARY EXPORT FINANCING BY EXPORT-IMPORT BANK.—[Repealed—

Section 102(e) of Public Law 102–429; 106 Stat. 2195]

SEC. 33. ø22 U.S.C. 2773¿ RESTRAINT IN ARMS SALES TO SUBSAHARAN AFRICA.—It is the sense of the Congress that the problems of Sub-Saharan Africa are primarily those of economic development and that United States policy should assist in limiting the

development of costly military conflict in that region. Therefore, the

President shall exercise restraint in selling defense articles and defense services, and in providing financing for sales of defense articles and defense services, to countries in Sub-Saharan Africa.

SEC. 34. ø22 U.S.C. 2774¿ FOREIGN MILITARY SALES CREDIT

STANDARDS.—The President shall establish standards and criteria

for credit and guaranty transactions under sections 23 and 24 in

accordance with the foreign, national security, and financial policies of the United States.

SEC. 35. ø22 U.S.C. 2775¿ FOREIGN MILITARY SALES TO LESS

DEVELOPED COUNTRIES.—(a) When the President finds that any

economically less developed country is diverting development assistance furnished pursuant to the Foreign Assistance Act of 1961,

as amended, or sales under the Agricultural Trade Development

and Assistance Act of 1954, as amended, to military expenditures,

or is diverting its own resources to unnecessary military expenditures, to a degree which materially interferes with its development,

such country shall be immediately ineligible for further sales and

guarantees under sections 21, 22, 23, and 24, until the President

is assured that such diversion will no longer take place.

(b) [Repealed—1974]

SEC. 36. ø22 U.S.C. 2776¿ REPORTS ON COMMERCIAL AND GOVERNMENTAL MILITARY EXPORTS; CONGRESSIONAL ACTION.—(a) The

President shall transmit to the Speaker of the House of Representatives and to the chairman of the Committee on Foreign Relations

of the Senate not more than sixty days after the end of each quarter an unclassified report (except that any material which was

transmitted in classified form under subsection (b)(1) or (c)(1) of

this section may be contained in a classified addendum to such report, and any letter of offer referred to in paragraph (1) of this subsection may be listed in such addendum unless such letter of offer

has been the subject of an unclassified certification pursuant to

subsection (b)(1) of this section, and any information provided
Sec. 36 ARMS EXPORT CONTROL ACT 370

under paragraph (11) of this subsection may also be provided in a

classified addendum) containing—

(1) a listing of all letters of offer to sell any major defense equipment for $1,000,000 or more under this Act to each foreign country and international organization, by category, if

such letters of offer have not been accepted or canceled;

(2) a listing of all such letters of offer that have been accepted during the fiscal year in which such report is submitted,

together with the total value of all defense articles and defense

services sold to each foreign country and international organization during such fiscal year;

(3) the cumulative dollar amounts, by foreign country and

international organization, of sales credit agreements under

section 23 and guaranty agreements under section 24 made

during the fiscal year in which such report is submitted;

(4) a numbered listing of all licenses and approvals for the

export to each foreign country and international organization

during such fiscal year of commercially sold major defense

equipment, by category, sold for $1,000,000 or more, together

with the total value of all defense articles and defense services

so licensed for each foreign country and international organization, setting forth, with respect to the listed major defense

equipment—

(A) the items to be exported under the license,

(B) the quantity and contract price of each such item

to be furnished, and

(C) the name and address of the ultimate user of each

such item;

(5) projections of the dollar amounts, by foreign country

and international organization, of sales expected to be made

under sections 21 and 22, in the quarter of the fiscal year immediately following the quarter for which such report is submitted;

(6) a projection with respect to all sales expected to be

made to each country and organization for the remainder of

the fiscal year in which such report is transmitted;

(7) a description of each payment, contribution, gift, commission, or fee reported to the Secretary of State under section

39, including (A) the name of the person who made such payment, contribution, gift, commission, or fee; (B) the name of

any sales agent or other person to whom such payment, contribution, gift, commission, or fee was paid; (C) the date and

amount of such payment, contribution, gift, commission, or fee;

(D) a description of the sale in connection with which such payment, contribution, gift, commission, or fee was paid; and (E)

the identification of any business information considered confidential by the person submitting it which is included in the

report;

(8) a listing of each sale under section 29 during the quarter for which such report is made, specifying (A) the purchaser,

(B) the United States Government department or agency responsible for implementing the sale, (C) an estimate of the dollar amount of the sale, and (D) a general description of the real

property facilities to be constructed pursuant to such sale;
371 Sec. 36 ARMS EXPORT CONTROL ACT

(9) a listing of the consents to third-party transfers of defense articles or defense services which were granted, during

the quarter for which such report is submitted, for purposes of

section 3(a)(2) of this Act, the regulations issued under section

38 of this Act, or section 505(a)(1)(B) of the Foreign Assistance

Act of 1961, if the value (in terms of original acquisition cost)

of the defense articles or defense services to be transferred is

$1,000,000 or more;

(10) a listing of all munitions items (as defined in section

40(l)(1)) which were sold, leased, or otherwise transferred by

the Department of Defense to any other department, agency,

or other entity of the United States Government during the

quarter for which such report is submitted (including the name

of the recipient Government entity and a discussion of what

that entity will do with those munitions items) if— (A) the value of the munitions items was $250,000 of

more; and

(B) the value of all munitions items transferred to that

Government department, agency, or other entity during

that quarter was $250,000 or more;

excluding munitions items transferred (i) for disposition or use

solely within the United States, or (ii) for use in connection

with intelligence activities subject to reporting requirements

under title V of the National Security Act of 1947 (50 U.S.C.

413 et seq.; relating to congressional oversight of intelligence

activities);

(11) a report on all concluded government-to-government

agreements regarding foreign coproduction of defense articles

of United States origin and all other concluded agreements involving coproduction or licensed production outside of the

United States of defense articles of United States origin (including coproduction memoranda of understanding or agreement) that have not been previously reported under this subsection, which shall include—

(A) the identity of the foreign countries, international

organizations, or foreign firms involved;

(B) a description and the estimated value of the

articles authorized to be produced, and an estimate of the

quantity of the articles authorized to be produced;

(C) a description of any restrictions on third-party

transfers of the foreign-manufactured articles; and

(D) if any such agreement does not provide for United

States access to and verification of quantities of articles

produced overseas and their disposition in the foreign

country, a description of alternative measures and controls

incorporated in the coproduction or licensing program to

ensure compliance with restrictions in the agreement on

production quantities and third-party transfers; and

(12) a report on all exports of significant military equipment for which information has been provided pursuant to section 38(i).

For each letter of offer to sell under paragraphs (1) and (2), the report shall specify (i) the foreign country or international organization to which the defense article or service is offered or was sold,
Sec. 36 ARMS EXPORT CONTROL ACT 372

as the case may be: (ii) the dollar amount of the offer to sell or the

sale and the number of defense articles offered or sold, as the case

may be; (iii) a description of the defense article or service offered

or sold, as the case may be; and (iv) the United States Armed

Forces or other agency of the United States which is making the

offer to sell or the sale, as the case may be.

(b)(1) Subject to paragraph (6), in the case of any letter of offer

to sell any defense articles or services under this Act for

$50,000,000 or more, any design and construction services for

$200,000,000 or more, or any major defense equipment for

$14,000,000 or more, before such letter of offer is issued, the President shall submit to the Speaker of the House of Representatives

and to the chairman of the Committee on Foreign Relations of the

Senate a numbered certification with respect to such offer to sell

containing the information specified in clauses (i) through (iv) of

subsection (a), or (in the case of a sale of design and construction

services) the information specified in clauses (A) through (D) of

paragraph (9) of subsection (a), and a description, containing the

information specified in paragraph (8) of subsection (a), of any contribution, gift, commission, or fee paid or offered or agreed to be

paid in order to solicit, promote, or otherwise to secure such letter

of offer. Such numbered certifications shall also contain an item,

classified if necessary, identifying the sensitivity of technology contained in the defense articles, defense services, or design and construction services proposed to be sold, and a detailed justification

of the reasons necessitating the sale of such articles or services in

view of the sensitivity of such technology. In a case in which such

articles or services listed on the Missile Technology Control Regime

Annex are intended to support the design, development, or production of a Category I space launch vehicle system (as defined in section 74), such report shall include a description of the proposed export and rationale for approving such export, including the consistency of such export with United States missile nonproliferation policy. Each such numbered certification shall contain an item indicating whether any offset agreement is proposed to be entered into

in connection with such letter of offer to sell (if known on the date

of transmittal of such certification). In addition, the President

shall, upon the request of such committee or the Committee on Foreign Affairs of the House of Representatives, transmit promptly to

both such committees a statement setting forth, to the extent specified in such request—

(A) a detailed description of the defense articles, defense

services, or design and construction services to be offered, including a brief description of the capabilities of any defense article to be offered;

(B) an estimate of the number of officers and employees of

the United States Government and of United States civilian

contract personnel expected to be needed in such country to

carry out the proposed sale;

(C) the name of each contractor expected to provide the defense article, defense service, or design and construction services proposed to be sold and a description of any offset agreement with respect to such sale;
373 Sec. 36 ARMS EXPORT CONTROL ACT

(D) an evaluation, prepared by the Secretary of State in

consultation with the Secretary of Defense and the Director of

Central Intelligence, of the manner, if any, in which the proposed sale would—

(i) contribute to an arms race;

(ii) support international terrorism;

(iii) increase the possibility of an outbreak or escalation of conflict;

(iv) prejudice the negotiation of any arms controls; or

(v) adversely affect the arms control policy of the

United States;

(E) the reasons why the foreign country or international

organization to which the sale is proposed to be made needs

the defense articles, defense services, or design and construction services which are the subject of such sale and a description of how such country or organization intends to use such

defense articles, defense services, or design and construction

services;

(F) an analysis by the President of the impact of the proposed sale on the military stocks and the military preparedness of the United States;

(G) the reasons why the proposed sale is in the national

interest of the United States;

(H) an analysis by the President of the impact of the proposed sale on the military capabilities of the foreign country or

international organization to which such sale would be made;

(I) an analysis by the President of how the proposed sale

would affect the relative military strengths of countries in the

region to which the defense articles, defense services, or design

and construction services which are the subject of such sale

would be delivered and whether other countries in the region

have comparable kinds and amounts of defense articles, defense services, or design and construction services;

(J) an estimate of the levels of trained personnel and

maintenance facilities of the foreign country or international

organization to which the sale would be made which are needed and available to utilize effectively the defense articles, defense services, or design and construction services proposed to

be sold;

(K) an analysis of the extent to which comparable kinds

and amounts of defense articles, defense services, or design

and construction services are available from other countries;

(L) an analysis of the impact of the proposed sale on

United States relations with the countries in the region to

which the defense articles, defense services, or design and construction services which are the subject of such sale would be

delivered;

(M) a detailed description of any agreement proposed to be

entered into by the United States for the purchase or acquisition by the United States of defense articles, defense services,

design and construction services or defense equipment, or other

articles, services, or equipment of the foreign country or international organization in connection with, or as consideration

for, such letter of offer, including an analysis of the impact of
Sec. 36 ARMS EXPORT CONTROL ACT 374

such proposed agreement upon United States business concerns which might otherwise have provided such articles, services, or equipment to the United States, an estimate of the

costs to be incurred by the United States in connection with

such agreement compared with costs which would otherwise

have been incurred, an estimate of the economic impact and

unemployment which would result from entering into such proposed agreement, and an analysis of whether such costs and

such domestic economic impact justify entering into such proposed agreement;

(N) the projected delivery dates of the defense articles, defense services, or design and construction services to be offered;

(O) a detailed description of weapons and levels of munitions that may be required as support for the proposed sale;

and

(P) an analysis of the relationship of the proposed sale to

projected procurements of the same item.

A certification transmitted pursuant to this subsection shall be unclassified, except that the information specified in clause (ii) and

the details of the description specified in clause (iii) of subsection

(a) may be classified if the public disclosure thereof would be clearly detrimental to the security of the United States, in which case

the information shall be accompanied by a description of the damage to the national security that could be expected to result from

public disclosure of the information. The letter of offer shall not be

issued, with respect to a proposed sale to the North Atlantic Treaty

Organization, any member country of such Organization, Japan,

Australia, or New Zealand, if the Congress, within fifteen calendar

days after receiving such certification, or with respect to a proposed

sale to any other country or organization, if the Congress within

thirty calendar days after receiving such certification, enacts a joint

resolution prohibiting the proposed sale, unless the President

states in his certification that an emergency exists which requires

such sale in the national security interests of the United States. If

the President states in his certification that an emergency exists

which requires the proposed sale in the national security interest

of the United States, thus waiving the congressional review requirements of this subsection, he shall set forth in the certification

a detailed justification for his determination, including a description of the emergency circumstances which necessitate the immediate issuance of the letter of offer and a discussion of the national

security interests involved.

(2) Any such joint resolution shall be considered in the Senate

in accordance with the provisions of section 601(b) of the International Security Assistance and Arms Export Control Act of 1976,

except that for purposes of consideration of any joint resolution

with respect to the North Atlantic Treaty Organization, any member country of such Organization, Japan, Australia, or New Zealand, it shall be in order in the Senate to move to discharge a committee to which such joint resolution was referred if such committee has not reported such joint resolution at the end of five calendar days after its introduction.

(3) For the purpose of expediting the consideration and enactment of joint resolutions under this subsection, a motion to proceed
375 Sec. 36 ARMS EXPORT CONTROL ACT

1Section 28 was repealed by section 1064(a) of Public Law 104–106 (110 Stat. 445).

to the consideration of any such joint resolution after it has been

reported by the appropriate committee shall be treated as highly

privileged in the House of Representatives.

(4) In addition to the other information required to be contained in a certification submitted to the Congress under this subsection, each such certification shall cite any quarterly report submitted pursuant to section 28 1 of this Act which listed a price and

availability estimate, or a request for the issuance of a letter of

offer, which was a basis for the proposed sale which is the subject

of such certification.

(5)(A) If, before the delivery of any major defense article or

major defense equipment, or the furnishing of any defense service

or design and construction service, sold pursuant to a letter of offer

described in paragraph (1), the sensitivity of technology or the capability of the article, equipment, or service is enhanced or upgraded from the level of sensitivity or capability described in the

numbered certification with respect to an offer to sell such article,

equipment, or service, then, at least 45 days before the delivery of

such article or equipment or the furnishing of such service, the

President shall prepare and transmit to the chairman of the Committee on Foreign Affairs of the House of Representatives and the

chairman of the Committee on Foreign Relations of the Senate a

report—

(i) describing the manner in which the technology or capability has been enhanced or upgraded and describing the significance of such enhancement or upgrade; and

(ii) setting forth a detailed justification for such enhancement or upgrade.

(B) The provisions of subparagraph (A) apply to an article or

equipment delivered, or a service furnished, within ten years after

the transmittal to the Congress of a numbered certification with respect to the sale of such article, equipment, or service.

(C) Subject to paragraph (6), if the enhancement or upgrade in

the sensitivity of technology or the capability of major defense

equipment, defense articles, defense services, or design and construction services described in a numbered certification submitted

under this subsection costs $14,000,000 or more in the case of any

major defense equipment, $50,000,000 or more in the case of defense articles or defense services, or $200,000,000 or more in the

case of design or construction services, then the President shall

submit to the Speaker of the House of Representatives and the

chairman of the Committee on Foreign Relations of the Senate a

new numbered certification which relates to such enhancement or

upgrade and which shall be considered for purposes of this subsection as if it were a separate letter of offer to sell defense equipment, articles, or services, subject to all of the requirements, restrictions, and conditions set forth in this subsection. For purposes

of this subparagraph, references in this subsection to sales shall be

deemed to be references to enhancements or upgrades in the sensitivity of technology or the capability of major defense equipment,

articles, or services, as the case may be.
Sec. 36 ARMS EXPORT CONTROL ACT 376

1Section 732(b)(2) of P.L. 103–236 amended section 36(c)(1) in the third sentence by inserting

‘‘and a description from the person who has submitted the license application of any offset

agreement proposed to be entered into in connection with such export (if known on the date

of transmittal of such statement)’’ after ‘‘Secretary of Defense’’. The amendment probably should

have been made to the second sentence.

(D) For the purposes of subparagraph (A), the term ‘‘major defense article’’ shall be construed to include electronic devices, which

if upgraded, would enhance the mission capability of a weapons

system.

(6) The limitation in paragraph (1) and the requirement in

paragraph (5)(C) shall apply in the case of a letter of offer to sell

to a member country of the North Atlantic Treaty Organization

(NATO) or Australia, Japan, or New Zealand that does not authorize a new sales territory that includes any country other than such

countries only if the letter of offer involves—

(A) the sale of major defense equipment under this Act for,

or the enhancement or upgrade of major defense equipment at

a cost of, $25,000,000 or more, as the case may be; and

(B) the sale of defense articles or services for, or the enhancement or upgrade of defense articles or services at a cost

of, $100,000,000 or more, as the case may be; or

(C) the sale of design and construction services for, or the

enhancement or upgrade of design and construction services at

a cost of, $300,000,000 or more, as the case may be.

(c)(1) Subject to paragraph (5), in the case of an application by

a person (other than with regard to a sale under section 21 or section 22 of this Act) for a license for the export of any major defense

equipment sold under a contract in the amount of $14,000,000 or

more or of defense articles or defense services sold under a contract

in the amount of $50,000,000 or more (or, in the case of a defense

article that is a firearm controlled under category I of the United

States Munitions List, $1,000,000 or more), before issuing such license the President shall transmit to the Speaker of the House of

Representatives and to the chairman of the Committee on Foreign

Relations of the Senate an unclassified numbered certification with

respect to such application specifying (A) the foreign country or

international organization to which such export will be made, (B)

the dollar amount of the items to be exported, and (C) a description

of the items to be exported. Each such numbered certification shall

also contain an item indicating whether any offset agreement is

proposed to be entered into in connection with such export and a

description of any such offset agreement. In addition, the President

shall, upon the request of such committee or the Committee on Foreign Affairs of the House of Representatives, transmit promptly to

both such committees a statement setting forth, to the extent specified in such request a description of the capabilities of the items

to be exported, an estimate of the total number of United States

personnel expected to be needed in the foreign country concerned

in connection with the items to be exported and an analysis of the

arms control impact pertinent to such application, prepared in consultation with the Secretary of Defense. 1 In a case in which such

articles or services listed on the Missile Technology Control Regime

Annex are intended to support the design, development, or production of a Category I space launch vehicle system (as defined in sec-
377 Sec. 36 ARMS EXPORT CONTROL ACT

tion 74), such report shall include a description of the proposed export and rationale for approving such export, including the consistency of such export with United States missile nonproliferation policy. A certification transmitted pursuant to this subsection shall be

unclassified, except that the information specified in clause (B) and

the details of the description specified in clause (C) may be classified if the public disclosure thereof would be clearly detrimental to

the security of the United States, in which case the information

shall be accompanied by a description of the damage to the national security that could be expected to result from public disclosure of the information.

(2) Unless the President states in his certification that an

emergency exists which requires the proposed export in the national security interests of the United States, a license for export

described in paragraph (1)—

(A) in the case of a license for an export to the North Atlantic Treaty Organization, any member country of that Organization or Australia, Japan, or New Zealand, shall not be

issued until at least 15 calendar days after the Congress receives such certification, and shall not be issued then if the

Congress, within that 15-day period, enacts a joint resolution

prohibiting the proposed export;

(B) in the case of a license for an export of a commercial

communications satellite for launch from, and by nationals of,

the Russian Federation, Ukraine, or Kazakhstan, shall not be

issued until at least 15 calendar days after the Congress receives such certification, and shall not be issued then if the

Congress, within that 15-day period, enacts a joint resolution

prohibiting the proposed export; and

(C) in the case of any other license, shall not be issued

until at least 30 calendar days after the Congress receives such

certification, and shall not be issued then if the Congress,

within that 30-day period, enacts a joint resolution prohibiting

the proposed export.

(3)(A) Any joint resolution under this subsection shall be considered in the Senate in accordance with the provisions of section

601(b) of the International Security Assistance and Arms Export

Control Act of 1976.

(B) For the purpose of expediting the consideration and enactment of joint resolutions under this subsection, a motion to proceed

to the consideration of any such joint resolution after it has been

reported by the appropriate committee shall be treated as highly

privileged in the House of Representatives.

(4) The provisions of subsection (b)(5) shall apply to any equipment, article, or service for which a numbered certification has

been transmitted to Congress pursuant to paragraph (1) in the

same manner and to the same extent as that subsection applies to

any equipment, article, or service for which a numbered certification has been transmitted to Congress pursuant to subsection

(b)(1). For purposes of such application, any reference in subsection

(b)(5) to ‘‘a letter of offer’’ or ‘‘an offer’’ shall be deemed to be a reference to ‘‘a contract’’.

(5) In the case of an application by a person (other than with

regard to a sale under section 21 or 22 of this Act) for a license
Sec. 36 ARMS EXPORT CONTROL ACT 378

for the export to a member country of the North Atlantic Treaty

Organization (NATO) or Australia, Japan, or New Zealand that

does not authorize a new sales territory that includes any country

other than such countries, the limitations on the issuance of the license set forth in paragraph (1) shall apply only if the license is

for export of—

(A) major defense equipment sold under a contract in the amount of $25,000,000 or more; or

(B) defense articles or defense services sold under a contract in the amount of $100,000,000 or more.

(d)(1) In the case of an approval under section 38 of this Act

of a United States commercial technical assistance or manufacturing licensing agreement which involves the manufacture abroad

of any item of significant combat equipment on the United States

Munitions List, before such approval is given, the President shall

submit a certification with respect to such proposed commercial

agreement in a manner similar to the certification required under

subsection (c)(1) containing comparable information, except that

the last sentence of such subsection shall not apply to certifications

submitted pursuant to this subsection.

(2) A certification under this subsection shall be submitted—

(A) at least 15 days before approval is given in the case of

an agreement for or in a country which is a member of the

North Atlantic Treaty Organization or Australia, Japan, or

New Zealand; and

(B) at least 30 days before approval is given in the case of

an agreement for or in any other country;

unless the President states in his certification that an emergency

exists which requires the immediate approval of the agreement in

the national security interests of the United States.

(3) If the President states in his certification that an emergency exists which requires the immediate approval of the agreement in the national security interests of the United States, thus

waiving the requirements of paragraph (4), he shall set forth in the

certification a detailed justification for his determination, including

a description of the emergency circumstances which necessitate the

immediate approval of the agreement and a discussion of the national security interests involved.

(4) Approval for an agreement subject to paragraph (1) may

not be given under section 38 if the Congress, within the 15-day

or 30-day period specified in paragraph (2)(A) or (B), as the case

may be, enacts a joint resolution prohibiting such approval.

(5)(A) Any joint resolution under paragraph (4) shall be considered in the Senate in accordance with the provisions of section

601(b) of the International Security Assistance and Arms Export

Control Act of 1976.

(B) For the purpose of expediting the consideration and enactment of joint resolutions under paragraph (4), a motion to proceed

to the consideration of any such joint resolution after it has been

reported by the appropriate committee shall be treated as highly

privileged in the House of Representatives.

(e) For purposes of this section—

(1) the term ‘‘offset agreement’’ means an agreement, arrangement, or understanding between a United States supplier
379 Sec. 37 ARMS EXPORT CONTROL ACT

of defense articles or defense services and a foreign country

under which the supplier agrees to purchase or acquire, or to

promote the purchase or acquisition by other United States

persons of, goods or services produced, manufactured, grown,

or extracted, in whole or in part, in that foreign country in consideration for the purchase by the foreign country of defense

articles or defense service from the supplier; and

(2) the term ‘‘United States person’’ means—

(A) an individual who is a national or permanent resident alien of the United States; and

(B) any corporation, business association, partnership,

trust, or other juridical entity—

(i) organized under the laws of the United States

or any State, district, territory, or possession thereof;

or

(ii) owned or controlled in fact by individuals described in subparagraph (A).

(f) The President shall cause to be published in a timely manner in the Federal Register, upon transmittal to the Speaker of the

House of Representatives and to the chairman of the Committee on

Foreign Relations of the Senate, the full unclassified text of—

(1) each numbered certification submitted pursuant to subsection (b);

(2) each notification of a proposed commercial sale submitted under subsection (c); and

(3) each notification of a proposed commercial technical assistance or manufacturing licensing agreement submitted

under subsection (d).

(g) Information relating to offset agreements provided pursuant to subparagraph (C) of the fifth sentence of subsection (b)(1)

and the second sentence of subsection (c)(1) shall be treated as confidential information in accordance with section 12(c) of the Export

Administration Act of 1979 (50 U.S.C. App. 2411(c)).

SEC. 37. ø22 U.S.C. 2777¿ FISCAL PROVISIONS RELATING TO

FOREIGN MILITARY SALES CREDITS.—(a) Cash payments received

under sections 21, 22, and 29 and advances received under section

23 shall be available solely for payments to suppliers (including the

military departments) and refunds to purchasers and shall not be

available for financing credits and guaranties.

(b) Amounts received from foreign governments and international organizations as repayments for credits extended pursuant

to section 23, amounts received from the disposition of instruments

evidencing indebtedness under section 24(b) (excluding such portion of the sales proceeds as may be required at the time of disposition to be obligated as a reserve for payment of claims under guaranties issued pursuant to section 24(b), which sums are made

available for such obligations), and other collections (including fees

and interest) shall be transferred to the miscellaneous receipts of

the Treasury.

(c) Notwithstanding the provisions of subsection (b), to the extent that any of the funds constituting the reserve under section

24(c) are paid out for a claim arising out of a loan guaranteed

under section 24, amounts received from a foreign government or

international organization after the date of such payment, with re-
Sec. 38 ARMS EXPORT CONTROL ACT 380

spect to such claim, shall be credited to such reserve, shall be

merged with the funds in such reserve, and shall be available for

any purpose for which funds in such reserve are available.

SEC. 38. ø22 U.S.C. 2778¿ CONTROL OF ARMS EXPORTS AND IM- PORTS.—(a)(1) In furtherance of world peace and the security and

foreign policy of the United States, the President is authorized to

control the import and the export of defense articles and defense

services and to provide foreign policy guidance to persons of the

United States involved in the export and import of such articles

and services. The President is authorized to designate those items

which shall be considered as defense articles and defense services

for the purposes of this section and to promulgate regulations for

the import and export of such articles and services. The items so

designated shall constitute the United States Munitions List.

(2) Decisions on issuing export licenses under this section shall

take into account whether the export of an article would contribute

to an arms race, aid in the development of weapons of mass destruction, support international terrorism, increase the possibility

of outbreak or escalation of conflict, or prejudice the development

of bilateral or multilateral arms control or nonproliferation agreements or other arrangements.

(3) In exercising the authorities conferred by this section, the

President may require that any defense article or defense service

be sold under this Act as a condition of its eligibility for export, and

may require that persons engaged in the negotiation for the export

of defense articles and services keep the President fully and currently informed of the progress and future prospects of such negotiations.

(b)(1)(A)(i) As prescribed in regulations issued under this section, every person (other than an officer or employee of the United

States Government acting in an official capacity) who engages in

the business of manufacturing, exporting, or importing any defense

articles or defense services designated by the President under subsection (a)(1) shall register with the United States Government

agency charged with the administration of this section, and shall

pay a registration fee which shall be prescribed by such regulations. Such regulations shall prohibit the return to the United

States for sale in the United States (other than for the Armed

Forces of the United States and its allies or for any State for local

law enforcement agency) of any military firearms or ammunition of

United States manufacture furnished to foreign governments by

the United States under this Act or any other foreign assistance or

sales program of the United States, whether or not enhanced in

value or improved in condition in a foreign country. This prohibition shall not extend to similar firearms that have been so substantially transformed as to become, in effect, articles of foreign manufacture.

(ii)(I) As prescribed in regulations issued under this section,

every person (other than an officer or employee of the United

States Government acting in official capacity) who engages in the

business of brokering activities with respect to the manufacture,

export, import, or transfer of any defense article or defense service

designated by the President under subsection (a)(1), or in the business of brokering activities with respect to the manufacture, export,
381 Sec. 38 ARMS EXPORT CONTROL ACT

1So in original. There are two subparagraphs ‘‘(B)’’.

import, or transfer of any foreign defense article or defense service

(as defined in subclause (IV)), shall register with the United States

Government agency charged with the administration of this section, and shall pay a registration fee which shall be prescribed by

such regulations.

(II) Such brokering activities shall include the financing, transportation, freight forwarding, or taking of any other action that facilitates the manufacture, export, or import of a defense article or

defense service.

(III) No person may engage in the business of brokering activities described in subclause (I) without a license, issued in accordance with this Act, except that no license shall be required for such

activities undertaken by or for an agency of the United States

Government—

(aa) for use by an agency of the United States Government; or

(bb) for carrying out any foreign assistance or sales program authorized by law and subject to the control of the President by other means.

(IV) For purposes of this clause, the term ‘‘foreign defense article or defense service’’ includes any non-United States defense article or defense service of a nature described on the United States

Munitions List regardless of whether such article or service is of

United States origin or whether such article or service contains

United States origin components.

(B) 1 A copy of each registration made under this paragraph

shall be transmitted to the Secretary of the Treasury for review regarding law enforcement concerns. The Secretary shall report to

the President regarding such concerns as necessary.

(B) 1 The prohibition under such regulations required by the

second sentence of subparagraph (A) shall not extend to any military firearms (or ammunition, components, parts, accessories, and

attachments for such firearms) of United States manufacture furnished to any foreign government by the United States under this

Act or any other foreign assistance or sales program of the United

States if—

(i) such firearms are among those firearms that the Secretary of the Treasury is, or was at any time, required to authorize the importation of by reason of the provisions of section

925(e) of title 18, United States Code (including the requirement for the listing of such firearms as curios or relics under

section 921(a)(13) of that title); and

(ii) such foreign government certifies to the United States

Government that such firearms are owned by such foreign government.

(2) Except as otherwise specifically provided in regulations

issued under subsection (a)(1), no defense articles or defense services designated by the President under subsection (a)(1) may be exported or imported without a license for such export or import,

issued in accordance with this Act and regulations issued under

this Act, except that no license shall be required for exports or imports made by or for an agency of the United States Government
Sec. 38 ARMS EXPORT CONTROL ACT 382

(A) for official use by a department or agency of the United States

Government, or (B) for carrying out any foreign assistance or sales

program authorized by law and subject to the control of the President by other means. (3)(A) For each of the fiscal years 1988 and 1989, $250,000 of

registration fees collected pursuant to paragraph (1) shall be credited to a Department of State account, to be available without fiscal

year limitation. Fees credited to that account shall be available

only for the payment of expenses incurred for—

(i) contract personnel to assist in the evaluation of munitions control license applications, reduce processing time for license applications, and improve monitoring of compliance with

the terms of licenses; and

(ii) the automation of munitions control functions and the

processing of munitions control license applications, including

the development, procurement, and utilization of computer

equipment and related software.

(B) The authority of this paragraph may be exercised only to

such extent or in such amounts as are provided in advance in appropriation Acts.

(c) Any person who willfully violates any provision of this section or section 39, or any rule or regulation issued under either section, or who willfully, in a registration or license application or required report, makes any untrue statement of a material fact or

omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, shall upon

conviction be fined for each violation not more than $1,000,000, or

imprisoned not more than ten years, or both.

(d) [Repealed—1979]

(e) In carrying out functions under this section with respect to

the export of defense articles and defense services, the President is

authorized to exercise the same powers concerning violations and

enforcement which are conferred upon departments, agencies and

officials by subsections (c), (d), (e), and (g) of section 11 of the Export Administration Act of 1979, and by subsections (a) and (c) of

section 12 of such Act, subject to the same terms and conditions as

are applicable to such powers under such Act, except that section

11(c)(2)(B) of such Act shall not apply, and instead, as prescribed

in regulations issued under this section, the Secretary of State may

assess civil penalties for violations of this Act and regulations prescribed thereunder and further may commence a civil action to recover such civil penalties, and except further that the names of the

countries and the types and quantities of defense articles for which

licenses are issued under this section shall not be withheld from

public disclosure unless the President determines that the release

of such information would be contrary to the national interest.

Nothing in this subsection shall be construed as authorizing the

withholding of information from the Congress. Notwithstanding

section 11(c) of the Export Administration Act of 1979, the civil

penalty for each violation involving controls imposed on the export

of defense articles and defense services under this section may not

exceed $500,000.

(f)(1) The President shall periodically review the items on the

United States Munitions List to determine what items, if any, no
383 Sec. 38 ARMS EXPORT CONTROL ACT

longer warrant export controls under this section. The results of

such reviews shall be reported to the Speaker of the House of Representatives and to the Committee on Foreign Relations and the

Committee on Banking, Housing, and Urban Affairs of the Senate.

The President may not remove any item from the Munitions List

until 30 days after the date on which the President has provided

notice of the proposed removal to the Committee on International

Relations of the House of Representatives and to the Committee on

Foreign Relations of the Senate in accordance with the procedures

applicable to reprogramming notifications under section 634A(a) of

the Foreign Assistance Act of 1961. Such notice shall describe the

nature of any controls to be imposed on that item under any other

provision of law.

(2) The President may not authorize an exemption for a foreign

country from the licensing requirements of this Act for the export

of defense items under subsection ( j) or any other provision of this

Act until 30 days after the date on which the President has transmitted to the Committee on International Relations of the House

of Representatives and the Committee on Foreign Relations of the

Senate a notification that includes—

(A) a description of the scope of the exemption, including

a detailed summary of the defense articles, defense services,

and related technical data covered by the exemption; and

(B) a determination by the Attorney General that the bilateral agreement concluded under subsection ( j) requires the

compilation and maintenance of sufficient documentation relating to the export of United States defense articles, defense

services, and related technical data to facilitate law enforcement efforts to detect, prevent, and prosecute criminal violations of any provision of this Act, including the efforts on the

part of countries and factions engaged in international terrorism to illicitly acquire sophisticated United States defense

items.

(3) Paragraph (2) shall not apply with respect to an exemption

for Canada from the licensing requirements of this Act for the export of defense items.

(g)(1) The President shall develop appropriate mechanisms to

identify, in connection with the export licensing process under this

section—

(A) persons who are the subject of an indictment for, or

have been convicted of, a violation under—

(i) this section,

(ii) section 11 of the Export Administration Act of 1979

(50 U.S.C. App. 2410),

(iii) section 793, 794, or 798 of title 18, United States

Code (relating to espionage involving defense or classified

information) or section 2339A of such title (relating to providing material support to terrorists),

(iv) section 16 of the Trading with the Enemy Act (50

U.S.C. App. 16),

(v) section 206 of the International Emergency Economic Powers Act (relating to foreign assets controls; 50

U.S.C. App. 1705),
Sec. 38 ARMS EXPORT CONTROL ACT 384

(vi) section 30A of the Securities Exchange Act of 1934

(15 U.S.C. 78dd1) or section 104 of the Foreign Corrupt

Practices Act (15 U.S.C. 78dd2),

(vii) chapter 105 of title 18, United States Code (relating to sabotage),

(viii) section 4(b) of the Internal Security Act of 1950

(relating to communication of classified information; 50

U.S.C. 783(b)),

(ix) section 57, 92, 101, 104, 222, 224, 225, or 226 of

the Atomic Energy Act of 1954 (42 U.S.C. 2077, 2122,

2131, 2134, 2272, 2274, 2275, and 2276),

(x) section 601 of the National Security Act of 1947

(relating to intelligence identities protection; 50 U.S.C.

421), or

(xi) section 603 (b) or (c) of the Comprehensive AntiApartheid Act of 1986 (22 U.S.C. 5113 (b) and (c));

(B) persons who are the subject of an indictment or have

been convicted under section 371 of title 18, United States

Code, for conspiracy to violate any of the statutes cited in subparagraph (A); and

(C) persons who are ineligible—

(i) to contract with,

(ii) to receive a license or other form of authorization

to export from, or

(iii) to receive a license or other form of authorization

to import defense articles or defense services from,

any agency of the United States Government.

(2) The President shall require that each applicant for a license

to export an item on the United States Munitions List identify in

the application all consignees and freight forwarders involved in

the proposed export.

(3) If the President determines—

(A) that an applicant for a license to export under this section is the subject of an indictment for a violation of any of the

statutes cited in paragraph (1),

(B) that there is reasonable cause to believe that an applicant for a license to export under this section has violated any

of the statutes cited in paragraph (1), or

(C) that an applicant for a license to export under this section is ineligible to contract with, or to receive a license or

other form of authorization to import defense articles or defense services from, any agency of the United States Government,

the President may disapprove the application. The President shall

consider requests by the Secretary of the Treasury to disapprove

any export license application based on these criteria.

(4) A license to export an item on the United States Munitions

List may not be issued to a person—

(A) if that person, or any party to the export, has been convicted of violating a statute cited in paragraph (1), or

(B) if that person, or any party to the export, is at the time

of the license review ineligible to receive export licenses (or

other forms of authorization to export) from any agency of the

United States Government,
385 Sec. 38 ARMS EXPORT CONTROL ACT

except as may be determined on a case-by-case basis by the President, after consultation with the Secretary of the Treasury, after

a thorough review of the circumstances surrounding the conviction

or ineligibility to export and a finding by the President that appropriate steps have been taken to mitigate any law enforcement concerns.

(5) A license to export an item on the United States Munitions

List may not be issued to a foreign person (other than a foreign

government).

(6) The President may require a license (or other form of authorization) before any item on the United States Munitions List

is sold or otherwise transferred to the control or possession of a foreign person or a person acting on behalf of a foreign person.

(7) The President shall, in coordination with law enforcement

and national security agencies, develop standards for identifying

high-risk exports for regular end-use verification. These standards

shall be published in the Federal Register and the initial standards

shall be published not later than October 1, 1988.

(8) Upon request of the Secretary of State, the Secretary of Defense and the Secretary of the Treasury shall detail to the office

primarily responsible for export licensing functions under this section, on a nonreimbursable basis, personnel with appropriate expertise to assist in the initial screening of applications for export

licenses under this section in order to determine the need for further review of those applications for foreign policy, national security, and law enforcement concerns.

(9) For purposes of this subsection—

(A) the term ‘‘foreign corporation’’ means a corporation

that is not incorporated in the United States;

(B) the term ‘‘foreign government’’ includes any agency or

subdivision of a foreign government, including an official mission of a foreign government;

(C) the term ‘‘foreign person’’ means any person who is not

a citizen or national of the United States or lawfully admitted

to the United States for permanent residence under the Immigration and Nationality Act, and includes foreign corporations,

international organizations, and foreign governments;

(D) the term ‘‘party to the export’’ means—

(i) the president, the chief executive officer, and other

senior officers of the license applicant;

(ii) the freight forwarders or designated exporting

agent of the license application; and

(iii) any consignee or end user of any item to be exported; and

(E) the term ‘‘person’’ means a natural person as well as

a corporation, business association, partnership, society, trust,

or any other entity, organization, or group, including governmental entities.

(h) The designation by the President (or by an official to whom

the President’s functions under subsection (a) have been duly delegated), in regulations issued under this section, of items as defense

articles or defense services for purposes of this section shall not be

subject to judicial review.
Sec. 38 ARMS EXPORT CONTROL ACT 386

(i) As prescribed in regulations issued under this section, a

United States person to whom a license has been granted to export

an item on the United States Munitions List shall, not later than

15 days after the item is exported, submit to the Department of

State a report containing all shipment information, including a description of the item and the quantity, value, port of exit, and enduser and country of destination of the item.

( j) REQUIREMENTS RELATING TO COUNTRY EXEMPTIONS FOR LICENSING OF DEFENSE ITEMS FOR EXPORT TO FOREIGN COUNTRIES.—

(1) REQUIREMENT FOR BILATERAL AGREEMENT.—

(A) IN GENERAL.—The President may utilize the regulatory or other authority pursuant to this Act to exempt a

foreign country from the licensing requirements of this Act

with respect to exports of defense items only if the United

States Government has concluded a binding bilateral

agreement with the foreign country. Such agreement

shall—

(i) meet the requirements set forth in paragraph

(2); and

(ii) be implemented by the United States and the

foreign country in a manner that is legally-binding

under their domestic laws.

(B) EXCEPTION.—The requirement to conclude a bilateral agreement in accordance with subparagraph (A) shall

not apply with respect to an exemption for Canada from

the licensing requirements of this Act for the export of defense items.

(2) REQUIREMENTS OF BILATERAL AGREEMENT.—A bilateral

agreement referred to paragraph (1)—

(A) shall, at a minimum, require the foreign country,

as necessary, to revise its policies and practices, and promulgate or enact necessary modifications to its laws and

regulations to establish an export control regime that is at

least comparable to United States law, regulation, and policy requiring—

(i) conditions on the handling of all United Statesorigin defense items exported to the foreign country,

including prior written United States Government approval for any reexports to third countries;

(ii) end-use and retransfer control commitments,

including securing binding end-use and retransfer control commitments from all end-users, including such

documentation as is needed in order to ensure compliance and enforcement, with respect to such United

States-origin defense items;

(iii) establishment of a procedure comparable to a

‘‘watchlist’’ (if such a watchlist does not exist) and full

cooperation with United States Government law enforcement agencies to allow for sharing of export and

import documentation and background information on

foreign businesses and individuals employed by or otherwise connected to those businesses; and
387 Sec. 38 ARMS EXPORT CONTROL ACT

(iv) establishment of a list of controlled defense

items to ensure coverage of those items to be exported

under the exemption; and

(B) should, at a minimum, require the foreign country,

as necessary, to revise its policies and practices, and promulgate or enact necessary modifications to its laws and

regulations to establish an export control regime that is at

least comparable to United States law, regulation, and policy regarding—

(i) controls on the export of tangible or intangible

technology, including via fax, phone, and electronic

media;

(ii) appropriate controls on unclassified information relating to defense items exported to foreign nationals;

(iii) controls on international arms trafficking and

brokering;

(iv) cooperation with United States Government

agencies, including intelligence agencies, to combat efforts by third countries to acquire defense items, the

export of which to such countries would not be authorized pursuant to the export control regimes of the foreign country and the United States; and

(v) violations of export control laws, and penalties

for such violations.

(3) ADVANCE CERTIFICATION.—Not less than 30 days before

authorizing an exemption for a foreign country from the licensing requirements of this Act for the export of defense items,

the President shall transmit to the Committee on International

Relations of the House of Representatives and the Committee

on Foreign Relations of the Senate a certification that—

(A) the United States has entered into a bilateral

agreement with that foreign country satisfying all requirements set forth in paragraph (2);

(B) the foreign country has promulgated or enacted all

necessary modifications to its laws and regulations to comply with its obligations under the bilateral agreement with

the United States; and

(C) the appropriate congressional committees will continue to receive notifications pursuant to the authorities,

procedures, and practices of section 36 of this Act for defense exports to a foreign country to which that section

would apply and without regard to any form of defense export licensing exemption otherwise available for that country.

(4) DEFINITIONS.—In this section:

(A) DEFENSE ITEMS.—The term ‘‘defense items’’ means

defense articles, defense services, and related technical

data.

(B) APPROPRIATE CONGRESSIONAL COMMITTEES.—The

term ‘‘appropriate congressional committees’’ means—

(i) the Committee on International Relations and

the Committee on Appropriations of the House of Representatives; and
Sec. 39 ARMS EXPORT CONTROL ACT 388

(ii) the Committee on Foreign Relations and the

Committee on Appropriations of the Senate.

SEC. 39. ø22 U.S.C. 2779¿ FEES OF MILITARY SALES AGENTS

AND OTHER PAYMENTS.—(a) In accordance with such regulations as

he may prescribe, the Secretary of State shall require adequate and

timely reporting on political contributions, gifts, commissions and

fees paid, or offered or agreed to be paid, by any person in connection with—

(1) sales of defense articles or defense services under section 22, or of design and construction services under section 29

of this Act; or

(2) commercial sales of defense articles or defense services

licensed or approved under section 38 of this Act;

to or for the armed forces of a foreign country or international organization in order to solicit, promote, or otherwise to secure the

conclusion of such sales. Such regulations shall specify the amounts

and the kinds of payments, offers, and agreements to be reported,

and the form and timing of reports, and shall require reports on

the names of sales agents and other persons receiving such payments. The Secretary of State shall by regulation require such recordkeeping as he determines is necessary.

(b) The President may, by regulation, prohibit, limit, or prescribe conditions with respect to such contributions, gifts, commissions, and fees as he determines will be in furtherance of the purposes of this Act.

(c) No such contribution, gift, commission, or fee may be included, in whole or in part, in the amount paid under any procurement contract entered into under section 22 or section 29 of this

Act, unless the amount thereof is reasonable, allocable to such contract, and not made to a person who has solicited, promoted, or otherwise secured such sale, or has held himself out as being able to

do so, through improper influence. For the purposes of this section,

‘‘improper influence’’ means influence, direct or indirect, which induces or attempts to induce consideration or action by any employee or officer of a purchasing foreign government or international organization with respect to such purchase on any basis

other than such consideration of merit as are involved in comparable United States procurements.

(d)(1) All information reported to the Secretary of State and all

records maintained by any person pursuant to regulations prescribed under this section shall be available, upon request, to any

standing committee of the Congress or any subcommittee thereof

and to any agency of the United States Government authorized by

law to have access to the books and records of the person required

to submit reports or to maintain records under this section.

(2) Access by an agency of the United States Government to

records maintained under this section shall be on the same terms

and conditions which govern the access by such agency to the books

and records of the person concerned.

SEC. 39A. ø22 U.S.C. 2779A¿ PROHIBITION ON INCENTIVE PAYMENTS.

(a) No United States supplier of defense articles or services

sold or licensed under this Act, nor any employee, agent, or subcontractor thereof, shall, with respect to the sale or export of any such
389 Sec. 39 ARMS EXPORT CONTROL ACT

defense article or defense service to a foreign country, make any incentive payments for the purpose of satisfying, in whole or in part,

any offset agreement with that country.

(b) Any person who violates the provisions of this section shall

be subject to the imposition of civil penalties as provided for in this

section.

(c) In the enforcement of this section, the President is authorized to exercise the same powers concerning violations and enforcement and imposition of civil penalties which are conferred upon departments, agencies and officials by subsections (c), (d), (e), and (f)

of section 11 of the Export Administration Act of 1979 and section

12(a) of such Act, subject to the same terms and conditions as are

applicable to such powers under that Act, except that section

11(c)(2)(B) of such Act shall not apply, and instead, as prescribed

in regulations issued under this section, the Secretary of State may

assess civil penalties for violations of this Act and regulations prescribed thereunder and further may commence a civil action to recover such civil penalties, and except further that notwithstanding

section 11(c) of that Act, the civil penalty for each violation of this

section may not exceed $500,000 or five times the amount of the

prohibited incentive payment, whichever is greater.

(d) For purposes of this section—

(1) the term ‘‘offset agreement’’ means an agreement, arrangement, or understanding between a United States supplier

of defense articles or defense services and a foreign country

under which the supplier agrees to purchase or acquire, or to

promote the purchase or acquisition by other United States

persons of, goods or services produced, manufactured, grown,

or extracted, in whole or in part, in that foreign country in consideration for the purchase by the foreign country of defense

articles or defense services from the supplier;

(2) the term ‘‘incentive payments’’ means direct monetary

compensation made by a United States supplier of defense articles or defense services or by any employee, agent or subcontractor thereof to any other United States person to induce or

persuade that United States person to purchase or acquire

goods or services produced, manufactured, grown, or extracted,

in whole or in part, in the foreign country which is purchasing

those defense articles or services from the United States supplier; and

(3) the term ‘‘United States person’’ means—

(A) an individual who is a national or permanent resident alien of the United States; and

(B) any corporation, business association, partnership,

trust, or other juridical entity—

(i) organized under the laws of the United States

or any State, the District of Columbia, or any territory

or possession of the United States; or

(ii) owned or controlled in fact by individuals described in subparagraph (A) or by an entity described

in clause (i).
Sec. 40 ARMS EXPORT CONTROL ACT 390

SEC. 40. ø22 U.S.C. 2780¿ TRANSACTIONS WITH COUNTRIES SUPPORTING ACTS OF INTERNATIONAL TERRORISM.

(a) PROHIBITED TRANSACTIONS BY THE UNITED STATES GOVERNMENT.—The following transactions by the United States Government are prohibited:

(1) Exporting or otherwise providing (by sale, lease or loan,

grant, or other means), directly or indirectly, any munitions

item to a country described in subsection (d) under the authority of this Act, the Foreign Assistance Act of 1961, or any other

law (except as provided in subsection (h)). In implementing

this paragraph, the United States Government—

(A) shall suspend delivery to such country of any such

item pursuant to any such transaction which has not been

completed at the time the Secretary of State makes the determination described in subsection (d), and

(B) shall terminate any lease or loan to such country

of any such item which is in effect at the time the Secretary of State makes that determination.

(2) Providing credits, guarantees, or other financial assistance under the authority of this Act, the Foreign Assistance

Act of 1961, or any other law (except as provided in subsection

(h)), with respect to the acquisition of any munitions item by

a country described in subsection (d). In implementing this

paragraph, the United States Government shall suspend expenditures pursuant to any such assistance obligated before

the Secretary of States makes the determination described in

subsection (d). The President may authorize expenditures otherwise required to be suspended pursuant to the preceding sentence if the President has determined, and reported to the Congress, that suspension of those expenditures causes undue financial hardship to a supplier, shipper, or similar person and

allowing the expenditure will not result in any munitions item

being made available for use by such country.

(3) Consenting under section 3(a) of this Act, under section

505(a) of the Foreign Assistance Act of 1961, under the regulations issued to carry out section 38 of this Act, or under any

other law (except as provided in subsection (h)), to any transfer

of any munitions item to a country described in subsection (d).

In implementing this paragraph, the United States Government shall withdraw any such consent, which is in effect at the

time the Secretary of State makes the determination described

in subsection (d), except that this sentence does not apply with

respect to any item that has already been transferred to such

country.

(4) Providing any license or other approval under section

38 of this Act for any export or other transfer (including by

means of a technical assistance agreement, manufacturing licensing agreement, or coproduction agreement) of any munitions item to a country described in subsection (d). In implementing this paragraph, the United States Government shall

suspend any such license or other approval which is in effect

at the time the Secretary of State makes the determination described in subsection (d), except that this sentence does not
391 Sec. 40 ARMS EXPORT CONTROL ACT

apply with respect to any item that has already been exported

or otherwise transferred to such country.

(5) Otherwise facilitating the acquisition of any munitions

item by a country described in subsection (d). This paragraph

applies with respect to activities undertaken—

(A) by any department, agency, or other instrumentality of the Government,

(B) by any officer or employee of the Government (including members of the United States Armed Forces), or

(C) by any other person at the request or on behalf of

the Government.

The Secretary of State may waive the requirements of the second

sentence of paragraph (1), the second sentence of paragraph (3),

and the second sentence of paragraph (4) to the extent that the

Secretary determines, after consultation with the Congress, that

unusual and compelling circumstances require that the United

States Government not take the actions specified in that sentence.

(b) PROHIBITED TRANSACTIONS BY UNITED STATES PERSONS.—

(1) IN GENERAL.—A United States person may not take

any of the following actions:

(A) Exporting any munitions item to any country described in subsection (d).

(B) Selling, leasing, loaning, granting, or otherwise

providing any munitions item to any country described in

subsection (d).

(C) Selling, leasing, loaning, granting, or otherwise

providing any munitions item to any recipient which is not

the government of or a person in a country described in

subsection (d) if the United States person has reason to

know that the munitions item with be made available to

any country described in subsection (d).

(D) Taking any other action which would facilitate the

acquisition, directly or indirectly, of any munitions item by

the government of any country described in subsection (d),

or any person acting on behalf of that government, if the

United States person has reason to know that that action

will facilitate the acquisition of that item by such a government or person.

(2) LIABILITY FOR ACTIONS OF FOREIGN SUBSIDIARIES,

ETC.—A United State person violates this subsection if a corporation or other person that is controlled in fact by that

United States person (as determined under regulations, which

the President shall issue), takes an action described in paragraph (1) outside the United States.

(3) APPLICABILITY TO ACTIONS OUTSIDE THE UNITED

STATES.—Paragraph (1) applies with respect to actions described in that paragraph which are taken either within or outside the United States by a United States person described in

subsection (l)(3)(A) or (B). To the extent provided in regulations

issued under subsection (l)(3)(D), paragraph (1) applies with

respect to actions described in that paragraph which are taken

outside the United State by a person designated as a United

States person in those regulations.
Sec. 40 ARMS EXPORT CONTROL ACT 392

(c) TRANSFERS TO GOVERNMENTS AND PERSONS COVERED.—This

section applies with respect to—

(1) the acquisition of munitions items by the government

of a country described in subsection (d); and

(2) the acquisition of munitions items by any individual,

group, or other person within a country described in subsection

(d), except to the extent that subparagraph (D) of subsection

(b)(1) provides otherwise.

(d) COUNTRIES COVERED BY PROHIBITION.—The prohibitions

contained in this section apply with respect to a country if the Secretary of State determines that the government of that country has

repeatedly provided support for acts of international terrorism. For

purposes of this subsection, such acts shall include all activities

that the Secretary determines willfully aid or abet the international proliferation of nuclear explosive devices to individuals or

groups, willfully aid or abet an individual or groups in acquiring

unsafeguarded special nuclear material, or willfully aid or abet the

efforts of an individual or group to use, develop, produce, stockpile,

or otherwise acquire chemical, biological, or radiological weapons.

(e) PUBLICATION OF DETERMINATIONS.—Each determination of

the Secretary of State under subsection (d) shall be published in

the Federal Register.

(f) RESCISSION.—(1) A determination made by the Secretary of

State under subsection (d) may not be rescinded unless the President submits to the Speaker of the House of Representatives and

the chairman of the Committee on Foreign Relations of the

Senate—

(A) before the proposed rescission would take effect, a report certifying that—

(i) there has been a fundamental change in the leadership and policies of the government of the country concerned;

(ii) that government is not supporting acts of international terrorism; and

(iii) that government has provided assurances that it

will not support acts of international terrorism in the future; or

(B) at least 45 days before the proposed rescission would

take effect, a report justifying the rescission and certifying

that—

(i) the government concerned has not provided any

support for international terrorism during the preceding 6-

month period; and

(ii) the government concerned has provided assurances

that it will not support acts of international terrorism in

the future.

(2) (A) No rescission under paragraph (1)(B) of a determination

under subsection (d) may be made if the Congress, within 45 days

after receipt of a report under paragraph (1)(B), enacts a joint resolution the matter after the resolving clause of which is as follows:

‘‘That the proposed rescission of the determination under section

40(d) of the Arms Export Control Act pursuant to the report submitted to the Congress on is hereby prohibited.’’,

the blank to be completed with the appropriate date.
393 Sec. 40 ARMS EXPORT CONTROL ACT

(B) A joint resolution described in subparagraph (A) and introduced within the appropriate 45-day period shall be considered in

the Senate and the House of Representatives in accordance with

paragraphs (3) through (7) of section 8066(c) of the Department of

Defense Appropriations Act (as contained in Public Law 98–473),

except that references in such paragraphs to the Committees on

Appropriations of the House of Representatives and the Senate

shall be deemed to be references to the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate, respectively.

(g) WAIVER.—The President may waive the prohibitions contained in this section with respect to a specific transaction if—

(1) the President determines that the transaction is essential to the national security interests of the United States; and

(2) not less than 15 days prior to the proposed transaction,

the President—

(A) consults with the Committee on Foreign Affairs of

the House of Representatives and the Committee on Foreign Relations of the Senate; and

(B) submits to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate a report containing—

(i) the name of any country involved in the proposed transaction, the identity of any recipient of the

items to be provided pursuant to the proposed transaction, and the anticipated use of those items;

(ii) a description of the munitions items involved

in the proposed transaction (including their market

value) and the actual sale price at each step in the

transaction (or if the items are transferred by other

than sale, the manner in which they will be provided);

(iii) the reasons why the proposed transaction is

essential to the national security interests of the

United States and the justification for such proposed

transaction;

(iv) the date on which the proposed transaction is

expected to occur; and

(v) the name of every United States Government

department, agency, or other entity involved in the

proposed transaction, every foreign government involved in the proposed transaction, and every private

party with significant participation in the proposed

transaction.

To the extent possible, the information specified in subparagraph

(B) of paragraph (2) shall be provided in unclassified form, with

any classified information provided in an addendum to the report.

(h) EXEMPTION FOR TRANSACTIONS SUBJECT TO NATIONAL SECURITY ACT REPORTING REQUIREMENTS.—The prohibitions contained in this section do not apply with respect to any transaction

subject to reporting requirements under title V of the National Security Act of 1947 (50 U.S.C. 413 et seq.; relating to congressional

oversight of intelligence activities).

(i) RELATION TO OTHER LAWS.—
Sec. 40 ARMS EXPORT CONTROL ACT 394

(1) IN GENERAL.—With regard to munitions items controlled pursuant to this Act, the provisions of this section shall

apply notwithstanding any other provisions of law, other than

section 614(a) of the Foreign Assistance Act of 1961 (22 U.S.C.

2364(a)).

(2) SECTION 614(A) WAIVER AUTHORITY.—If the authority of

section 614(a) of the Foreign Assistance Act of 1961 is used to

permit a transaction under that Act or the Arms Export Control Act which is otherwise prohibited by this section, the written policy justification required by that section shall include

the information specified in subsection (g)(2)(B) of this section.

(j) CRIMINAL PENALTY.—Any person who willfully violates this section shall be fined for each violation not more than $1,000,000,

imprisoned not more than 10 years, or both.

(k) CIVIL PENALTIES; ENFORCEMENT.—In the enforcement of

this section, the President is authorized to exercise the same powers concerning violations and enforcement which are conferred

upon departments, agencies, and officials by sections 11(c), 11(e),

11(g), and 12(a) of the Export Administration Act of 1979 (subject

to the same terms and conditions as are applicable to such powers

under that Act), except that section 11(c)(2)(B) of such Act shall not

apply, and instead, as prescribed in regulations issued under this

section, the Secretary of State may assess civil penalties for violations of this Act and regulations prescribed thereunder and further

may commence a civil action to recover such civil penalties, and except further that, notwithstanding section 11(c) of that Act, the

civil penalty for each violation of this section may not exceed

$500,000.

(l) DEFINITIONS.—As used in this section—

(1) the term ‘‘munitions item’’ means any item enumerated

on the United States Munitions list (without regard to whether

the item is imported into or exported from the United States);

(2) the term ‘‘United States’’, when used geographically,

means the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern

Mariana Islands, and any territory or possession of the United

states;

(3) the term ‘‘United States person’’means—

(A) any citizen or permanent resident alien of the

United States;

(B) any sole proprietorship, partnership, company, association, or corporation having its principal place of business within the United States or organized under the laws

of the United States, any State, the District of Columbia,

the Commonwealth of Puerto Rico, the Commonwealth of

the Northern Mariana Islands, or any territory or possession of the United States;

(C) any other person with respect to that person’s actions while in the United States; and

(D) to the extent provided in regulations issued by the

Secretary of state, any person that is not described in subparagraph (A), (B), or (C) but—

(i) is a foreign subsidiary or affiliate of a United

States person described in subparagraph (B) and is
395 Sec. 40A ARMS EXPORT CONTROL ACT

1Section 150(a) of Public Law 104–164 (110 Stat. 1436) added this section. Probably should

be redesignated as section 40B.

controlled in fact by that United States person (as determined in accordance with those regulations), or

(ii) is otherwise subject to the jurisdiction of the

United States;

with respect to that person’s actions while outside the

United States;

(4) the term ‘‘nuclear explosive device’’ has the meaning

given that term in section 830(4) of the Nuclear Proliferation

Prevention Act of 1994; and

(5) the term ‘‘unsafeguarded special nuclear material’’ has

the meaning given that term in section 830(8) of the Nuclear

Proliferation Prevention Act of 1994.

SEC. 40A. ø22 U.S.C. 2781¿ TRANSACTIONS WITH COUNTRIES

NOT FULLY COOPERATING WITH UNITED STATES ANTITERRORISM

EFFORTS.— (a) PROHIBITED TRANSACTIONS.—No defense article or defense

service may be sold or licensed for export under this Act in a fiscal

year to a foreign country that the President determines and certifies to Congress, by May 15 of the calendar year in which that

fiscal year begins, is not cooperating fully with United States

antiterrorism efforts.

(b) WAIVER.—The President may waive the prohibition set

forth in subsection (a) with respect to a specific transaction if the

President determines that the transaction is important to the national interests of the United States.

CHAPTER 3A—END-USE MONITORING OF DEFENSE

ARTICLES AND DEFENSE SERVICES

SEC. 40A. 1 ø22 U.S.C. 2785¿ END-USE MONITORING OF DEFENSE ARTICLES AND DEFENSE SERVICES.

(a) ESTABLISHMENT OF MONITORING PROGRAM.—

(1) IN GENERAL.—In order to improve accountability with

respect to defense articles and defense services sold, leased, or

exported under this Act or the Foreign Assistance Act of 1961

(22 U.S.C. 2151 et seq.), the President shall establish a program which provides for the end-use monitoring of such articles and services.

(2) REQUIREMENTS OF PROGRAM.—To the extent practicable, such program—

(A) shall provide for the end-use monitoring of defense

articles and defense services in accordance with the standards that apply for identifying high-risk exports for regular

end-use verification developed under section 38(g)(7) of

this Act (commonly referred to as the ‘‘Blue Lantern’’ program); and

(B) shall be designed to provide reasonable assurance

that—

(i) the recipient is complying with the requirements imposed by the United States Government with

respect to use, transfers, and security of defense articles and defense services; and
Sec. 41 ARMS EXPORT CONTROL ACT 396

1Subparagraphs (A) through (C) of section 42(a) probably should be paragraphs (1) through

(3), respectively. See section 1225(a)(3)(C) of P.L. 105–277 (112 Stat. 2681–773).

(ii) such articles and services are being used for

the purposes for which they are provided.

(b) CONDUCT OF PROGRAM.—In carrying out the program established under subsection (a), the President shall ensure that the

program—

(1) provides for the end-use verification of defense articles

and defense services that incorporate sensitive technology, defense articles and defense services that are particularly vulnerable to diversion or other misuse, or defense articles or defense

services whose diversion or other misuse could have significant

consequences; and

(2) prevents the diversion (through reverse engineering or

other means) of technology incorporated in defense articles.

(c) REPORT TO CONGRESS.—Not later than 6 months after the

date of the enactment of this section, and annually thereafter as

a part of the annual congressional presentation documents submitted under section 634 of the Foreign Assistance Act of 1961, the

President shall transmit to the Congress a report describing the actions taken to implement this section, including a detailed accounting of the costs and number of personnel associated with the monitoring program and the numbers, range, and findings of end-use

monitoring of United States transfers of small arms and light

weapons.

(d) THIRD COUNTRY TRANSFERS.—For purposes of this section,

defense articles and defense services sold, leased, or exported under

this Act or the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et

seq.) includes defense articles and defense services that are transferred to a third country or other third party.

Chapter 4.—GENERAL, ADMINISTRATIVE, AND

MISCELLANEOUS PROVISIONS

SEC. 41. EFFECTIVE DATE.—This Act shall take effect on July

1, 1968.

SEC. 42. ø22 U.S.C. 2791¿ GENERAL PROVISIONS.—(a) In carrying out this Act, special emphasis shall be placed on procurement

in the United States, but, subject to the provisions of subsection (b)

of this section, consideration shall also be given to coproduction or

licensed production outside the United States of defense articles of

United States origin when such production best serves the foreign

policy, national security, and economy of the United States. In

evaluating any sale proposed to be made pursuant to this Act,

there shall be taken into consideration (A) 1 the extent to which the

proposed sale damages or infringes upon licensing arrangements

whereby United States entities have granted licenses for the manufacture of the defense articles selected by the purchasing country

to entities located in friendly foreign countries, which licenses result in financial returns to the United States, (B) 1 the portion of

the defense articles so manufactured which is of United States origin, and (C) 1 whether, and the extent to which, such sale might

contribute to an arms race, aid in the development of weapons of

mass destruction, support international terrorism, increase the pos-
397 Sec. 42 ARMS EXPORT CONTROL ACT

sibility of outbreak or escalation of conflict, or prejudice the development of bilateral or multilateral arms control or nonproliferation

agreements or other arrangements.

(b) No credit sale shall be extended under section 23, and no

guarantee shall be issued under section 24, in any case involving

coproduction or licensed, production outside the United States of

any defense article of United States origin unless the Secretary of

State shall, in advance of any such transaction, advise the appropriate committees of the Congress and furnish the Speaker of the

House of Representatives and the President of the Senate with full

information regarding the proposed transaction, including, but not

limited to, a description of the particular defense article or articles

which would be produced under license or coproduced outside the

United States, the estimated value of such production or coproduction, and the probable impact of the proposed transaction on employment and production within the United States.

(c) Funds made available under this Act may be used for procurement outside the United States only if the President determines that such procurement will not result in adverse effects upon

the economy of the United States or the industrial mobilization

base, with special reference to any areas of labor surplus or to the

net position of the United States in its balance of payments with

the rest of the world, which outweigh the economic or other advantages to the United States of less costly procurement outside the

United States.

(d)(1) With respect to sales and guaranties under sections 21,

22, 23, 24, 29, and 30 the Secretary of Defense shall, under the direction of the President, have primary responsibility for—

(A) the determination of military end-item requirements;

(B) the procurement of military equipment in a manner

which permits its integration with service programs;

(C) the supervision of the training of foreign military personnel;

(D) the movement and delivery of military end-items; and

(E) within the Department of Defense, the performance of

any other functions with respect to sales and guaranties.

(2) The establishment of priorities in the procurement, delivery, and allocation of military equipment shall, under the direction

of the President, be determined by the Secretary of Defense.

(e) (1) Each contract for sale entered into under sections 21, 22,

29, and 30 of this Act, and each contract entered into under section

27(d) of this Act, shall provide that such contract may be canceled

in whole or in part, or its execution suspended, by the United

States at any time under unusual or compelling circumstances if

the national interest so requires.

(2)(A) Each export license issued under section 38 of this Act

shall provide that such license may be revoked, suspended, or

amended by the Secretary of State, without prior notice, whenever

the Secretary deems such action to be advisable.

(B) Nothing in this paragraph may be construed as limiting the

regulatory authority of the President under this Act.

(3) There are authorized to be appropriated from time to time

such sums as may be necessary (A) to refund moneys received from

purchasers under contracts of sale entered into under sections 21,
Sec. 43 ARMS EXPORT CONTROL ACT 398

22, 29, and 30 of this Act, or under contracts entered into under

sec. 27(d) of this Act, that are canceled or suspended under this

subsection to the extent such moneys have previously been disbursed to private contractors and United States Government agencies for work in progress, and (B) to pay such damages and costs

that accrue from the corresponding cancellation or suspension of

the existing procurement contracts or United States Government

agency work orders involved.

(f) The President shall, to the maximum extent possible and

consistent with the purposes of this Act, use civilian contract personnel in any foreign country to perform defense services sold

under this Act.

SEC. 43. ø22 U.S.C. 2792¿ ADMINISTRATIVE EXPENSES.—(a)

Funds made available under other law for the operations of United

States Government agencies carrying out functions under this Act

shall be available for the administrative expenses incurred by such

agencies under this Act.

(b) Charges for administrative services calculated under section 21(e)(1)(A) of this Act shall include recovery of administrative

expenses and official reception and representation expenses incurred by any department or agency of the United States Government, including any mission or group thereof, in carrying out functions under this Act when—

(1) such functions are primarily for the benefit of any foreign country;

(2) such expenses are not directly and fully charged to, and

reimbursed from amounts received for, sale of defense services

under section 21(a) of this Act; and

(3) such expenses are neither salaries of the Armed Forces

of the United States nor represent unfunded estimated costs of

civilian retirement and other benefits.

(c) Not more than $86,500 of the funds derived from charges

for administrative services pursuant to section 21(e)(1)(A) of this

Act may be used each fiscal year for official reception and representation expenses.

SEC. 44. ø22 U.S.C. 2793¿ STATUTORY CONSTRUCTION.—No

provision of this Act shall be construed as modifying in any way

the provisions of the Atomic Energy Act of 1954, as amended, or

section 7307 of title 10 of the United States Code.

SEC. 45. STATUTES REPEALED AND AMENDED.—(a) Sections 521,

522, 523, 524(b)(3), 525, 634(g), and 640 of the Foreign Assistance

Act of 1961, as amended, are hereby repealed.

(b) Part III of the Foreign Assistance Act of 1961, as amended,

is amended as follows:

(1) Section 622(b) is amended by striking out ‘‘or sales’’.

(2) Section 622(c) is amended by striking out ‘‘and sales’’

and ‘‘or sales’’.

(3) Section 632(d) is amended by striking out ‘‘sections 506,

522, and 523,’’ in the first sentence and inserting in lieu thereof ‘‘section 506’’.

(4) Section 634(d) is amended by inserting ‘‘or any other’’

between ‘‘under this’’ and ‘‘Act’’ in the fourth sentence.
399 Sec. 47 ARMS EXPORT CONTROL ACT

1The second comma after ‘‘sec. 21(a),’’ in section 47(2) appears in the law.

(5) Section 644(m) is amended by striking out ‘‘and sales’’

in the first sentence of the paragraph following numbered

paragraph (3).

(c) References in law to the provisions of law repealed by subsection (a) of this section shall hereafter be deemed to be references

to this Act or appropriate provisions of this Act. Except for the laws

specified in section 44, no other provision of law shall be deemed

to apply to this Act unless it refers specifically to this Act or refers

generally to sales of defense articles and defense services under

any Act.

SEC. 46. ø2341¿ SAVINGS PROVISIONS.—Except as may be expressly provided to the contrary in this Act, all determinations, authorizations, regulations, orders, contracts, agreements, and other

actions issued, undertaken, or entered into under authority of any

provisions of law repealed by section 45(a) shall continue in full

force and effect until modified by appropriate authority.

SEC. 47. ø22 U.S.C. 2794¿ DEFINITIONS.—For purposes of this

Act, the term—

(1) ‘‘excess defense article’’ has the meaning provided by section 644(g) of the Foreign Assistance Act of 1961;

(2) ‘‘value’’ means, in the case of an excess defense article, except as otherwise provided in sec. 21(a),, 1 not less than the greater

of—

(A) the gross cost incurred by the United States Government in repairing, rehabilitating, or modifying such article,

plus the scrap value; or

(B) the market value, if ascertainable;

(3) ‘‘defense article’’, except as provided in paragraph (7) of this

section, includes—

(A) any weapon, weapons system, munition, aircraft, vessel, boat, or other implement of war,

(B) any property, installation, commodity, material, equipment, supply, or goods used for the purposes of making military sales,

(C) any machinery, facility, tool, material, supply, or other

item necessary for the manufacture, production, processing, repair, servicing, storage, construction, transportation, operation,

or use of any article listed in this paragraph, and

(D) any component or part of any article listed in this

paragraph,

but does not include merchant vessels or (as defined by the Atomic

Energy Act of 1954) source material (except uranium depleted in

the isotope 235 which is incorporated in defense articles solely to

take advantage of high density or pyrophoric characteristics unrelated to radioactivity), byproduct material, special nuclear material,

production facilities, utilization facilities, or atomic weapons or articles involving Restricted Data;

(4) ‘‘defense service’’, except as provided in paragraph (7) of

this section, includes any service, test, inspection, repair, training,

publication, technical or other assistance, or defense information

(as defined in section 644(e) of the Foreign Assistance Act of 1961)
Sec. 51 ARMS EXPORT CONTROL ACT 400

used for the purposes of making military sales, but does not include design and construction services under section 29 of this Act;

(5) ‘‘training’’ includes formal or informal instruction of foreign

students in the United States or overseas by officers or employees

of the United States, contract technicians, or contractors (including

instruction at civilian institutions), or by correspondence courses,

technical, educational, or information publications and media of all

kinds, training aid, orientation, training exercise, and military advice to foreign military units and forces;

(6) ‘‘major defense equipment’’ means any item of significant

military equipment on the United States Munitions List having a

nonrecurring research and development cost of more than

$50,000,000 or a total production cost of more than $200,000,000;

(7) ‘‘defense articles and defense services’’ means, with respect

to commercial exports subject to the provisions of section 38 of this

Act, those items designated by the President pursuant to subsection (a)(1) of such section;

(8) ‘‘design and construction services’’ means, with respect to

sales under section 29 of this Act, the design and construction of

real property facilities, including necessary construction equipment

and materials, engineering services, construction contract management services relating thereto, and technical advisory assistance in

the operation and maintenance of real property facilities provided

or performed by any department or agency of the Department of

Defense or by a contractor pursuant to a contract with such department or agency;

(9) ‘‘significant military equipment’’ means articles—

(A) for which special export controls are warranted because of the capacity of such articles for substantial military

utility or capability; and

(B) identified on the United States Munitions List;

(10) ‘‘weapons of mass destruction’’ has the meaning provided by section 1403(1) of the Defense Against Weapons of

Mass Destruction Act of 1996 (title XIV of Public Law 104–201;

110 Stat. 2717; 50 U.S.C. 2302(1)); and

(11) ‘‘Sales territory’’ means a country or group of countries to which a defense article or defense service is authorized

to be reexported.

CHAPTER 5—SPECIAL DEFENSE ACQUISITION FUND

SEC. 51. ø22 U.S.C. 2795¿ SPECIAL DEFENSE ACQUISITION

FUND.—(a)(1) Under the direction of the President and in consultation with the Secretary of State, the Secretary of Defense shall establish a Special Defense Acquisition Fund (hereafter in this chapter referred to as the ‘‘Fund’’), to be used as a revolving fund separate from other accounts, under the control of the Department of

Defense, to finance the acquisition of defense articles and defense

service in anticipation of their transfer pursuant to this Act, the

Foreign Assistance Act of 1961, or as otherwise authorized by law,

to eligible foreign countries and international organizations, and

may acquire such articles and services with the funds in the Fund

as he may determine. Acquisition under this chapter of items for

which the initial issue quantity requirements for United States
401 Sec. 52 ARMS EXPORT CONTROL ACT

Armed Forces have not been fulfilled and are not under current

procurement contract shall be emphasized when compatible with

security assistance requirements for the transfer of such items.

(2) Nothing in this chapter may be construed to limit or impair

any responsibilities conferred upon the Secretary of State or the

Secretary of Defense under this Act or the Foreign Assistance Act

of 1961.

(3) The Fund may be used to keep on continuous order such

defense articles and defense services as are assigned by the Department of Defense for integrated management by a single agency

thereof for the common use of all military departments in anticipation of the transfer of similar defense articles and defense services

to foreign countries and international organizations pursuant to

this Act, the Foreign Assistance Act of 1986, or other law.

(4) The Fund shall also be used to acquire defense articles that

are particularly suited for use for narcotics control purposes and

are appropriate to the needs of recipient countries, such as small

boats, planes (including helicopters), and communications equipment.

(b) The Fund shall consist of—

(1) collections from sales made under letters of offer issued

pursuant to section 21(a)(1)(A) of this Act representing the actual value of defense articles not intended to be replaced in

stock,

(2) collections from sales representing the value of asset

use charges (including contractor rental payments for United

States Government-owned plant and production equipment)

and charges for the proportionate recoupment of nonrecurring

research, development, and production costs, and

(3) collections from sales made under letters of offer (or

transfers made under the Foreign Assistance Act of 1961) of

defense articles and defense services acquired under this chapter, representing the value of such items calculated in accordance with subparagraph (B) or (C) of section 21(a)(1) or section

22 of this Act or section 644(m) of the Foreign Assistance Act

of 1961, as appropriate,

together with such funds as may be authorized and appropriated

or otherwise made available for the purposes of the Fund.

(c)(1) The size of the Fund may not exceed such dollar amount

as is prescribed in section 114(c) of title 10, United States Code.

For purposes of this limitation, the size of the Fund is the amounts

in the Fund plus the value (in terms of acquisition cost) of the defense articles acquired under this chapter which have not been

transferred from the Fund in accordance with this chapter.

(2) Amounts in the Fund shall be available for obligation in

any fiscal year only to such extent or in such amounts as are provided in advance in appropriation Acts.

SEC. 52. ø22 U.S.C. 2795a¿ USE AND TRANSFER OF ITEMS PROCURED BY THE FUND.—(a) No defense article or defense service acquired by the Secretary of Defense under this chapter may be

transferred to any foreign country or international organization unless such transfer is authorized by this Act, the Foreign Assistance

Act of 1961, or other law.
Sec. 53 ARMS EXPORT CONTROL ACT 402

(b) The President may authorize the temporary use by the

United States Armed Forces of defense articles and defense services acquired under this chapter prior to their transfer to a foreign

country or international organization, if such is necessary to meet

national defense requirements and the United States Armed Forces

bear the costs of operation and maintenance of such articles or

services while in their use and the costs of restoration or replacement upon the termination of such use.

(c) Except as provided in subsection (b) of this section, the

Fund may be used to pay for storage, maintenance, and other costs

related to the preservation and preparation for transfer of defense

articles and defense services acquired under this chapter prior to

their transfer, as well as the administrative costs of the Department of Defense incurred in the acquisition of such items to the extent not reimbursed pursuant to section 43(b) of this Act.

SEC. 53. ANNUAL REPORTS TO CONGRESS.—[Repealed—Section

145(a) of Public Law 104–164; 110 Stat. 1434]

CHAPTER 6—LEASES OF DEFENSE ARTICLES AND LOAN

AUTHORITY FOR COOPERATIVE RESEARCH AND DEVELOPMENT PURPOSES

SEC. 61. ø22 U.S.C. 2796¿ LEASING AUTHORITY.—(a) The President may lease defense articles in the stocks of the Department of

Defense to an eligible foreign country or international organization

if—

(1) he determines that there are compelling foreign policy

and national security reasons for providing such articles on a

lease basis rather than on a sales basis under this Act;

(2) he determines that the articles are not for the time

needed for public use;

(3) the President first considers the effects of the lease of

the articles on the national technology and industrial base,

particularly the extent, if any, to which the lease reduces the

opportunities of entities in the national technology and industrial base to sell new equipment to the country or countries to

which the articles are leased; and

(4) the country or international organization has agreed to

pay in United States dollars all costs incurred by the United

States Government in leasing such articles, including reimbursement for depreciation of such articles while leased, the

costs of restoration or replacement if the articles are damaged

while leased, and, if the articles are lost or destroyed while

leased—

(A) in the event the United States intends to replace

the articles lost or destroyed, the replacement cost (less

any depreciation in the value) of the articles; or

(B) in the event the United States does not intend to

replace the articles lost or destroyed, an amount not less

than the actual value (less any depreciation in the value)

specified in the lease agreement.

The requirement of paragraph (4) shall not apply to leases entered

into for purposes of cooperative research or development, military

exercises, or communication or electronics interface projects. The
403 Sec. 62 ARMS EXPORT CONTROL ACT

1Section 524 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1999 (as contained in section 101(d) of division A of Public Law 105–277), amended

subsection (a) in the second subparagraph (B) by striking out ‘‘1998’’ and inserting in lieu thereof ‘‘the current fiscal year’’. The amendment probably should have struck out ‘‘fiscal year 1998’’.

President may waive the requirement of paragraph (4) for reimbursement of depreciation for any defense article which has passed

three-quarters of its normal service life if the President determines

that to do so is important to the national security interest of the

United States. The President may waive the requirement of paragraph (4) with respect to a lease which is made in exchange with

the lessee for a lease on substantially reciprocal terms of defense

articles for the Department of Defense, except that this waiver

authority—

(A) may be exercised only if the President submits to the

Committee on Foreign Affairs and the Committee on Appropriations of the House of Representatives and the Committee

on Foreign Relation and the Committee on Appropriations of

the Senate, in accordance with the regular notification procedures of those Committees, a detailed notification for each

lease with respect to which the authority is exercised; and

(B) may be exercised only during the fiscal year the current fiscal year 1 and only with respect to one country, unless

the Congress hereafter provides otherwise.

The preceding sentence does not constitute authorization of appropriations for payments by the United States for leased articles.

(b)(1) Each lease agreement under this section shall be for a

fixed duration which may not exceed (A) five years, and (B) a specified period of time required to complete major refurbishment work

of the leased articles to be performed prior to the delivery of the

leased articles, and shall provide that, at any time during the duration of the lease, the President may terminate the lease and require the immediate return of the leased articles.

(2) In this subsection, the term ‘‘major refurbishment work’’

means work for which the period of performance is 6 months or

more.

(c) Defense articles in the stocks of the Department of Defense

may be leased or loaned to a foreign country or international organization only under the authority of this chapter or chapter 2 of

part II of the Foreign Assistance Act of 1961, and may not be

leased to a foreign country or international organization under the

authority of section 2667 of title 10, United States Code.

SEC. 62. ø22 U.S.C. 2796a¿ REPORTS TO THE CONGRESS.—(a)

Before entering into or renewing any agreement with a foreign

country or international organization to lease any defense article

under this chapter, or to loan any defense article under chapter 2

of part II of the Foreign Assistance Act of 1961, for a period of one

year or longer, the President shall transmit to the Speaker of the

House of Representatives, and to the chairman of the Committee

on Foreign Relations of the Senate and the chairman of the Committee on Armed Services of the Senate, a written certification

which specifies—

(1) the country or international organization to which the

defense article is to be leased or loaned;
Sec. 63 ARMS EXPORT CONTROL ACT 404

(2) the type, quantity, and value (in terms of replacement

cost) of the defense article to be leased or loaned;

(3) the terms and duration of the lease or loan; and

(4) a justification for the lease or loan, including an explanation of why the defense article is being leased or loaned

rather than sold under this Act.

(b) The President may waive the requirements of this section

(and in the case of an agreement described in section 63, may

waive the provisions of that section) if he states in his certification,

that an emergency exists which requires that the lease or loan be

entered into immediately in the national security interests of the

United States. If the President states in his certification that such

an emergency exists, he shall set forth in the certification a detailed justification for his determination, including a description of

the emergency circumstances which necessitate that the lease be

entered into immediately and a discussion of the national security

interests involved.

(c) The certification required by subsection (a) shall be

transmitted—

(1) not less than 15 calendar days before the agreement is

entered into or renewed in the case of an agreement with the

North Atlantic Treaty Organization, any member country of

that Organization or Australia, Japan, or New Zealand; and

(2) not less than 30 calendar days before the agreement is

entered into or renewed in the case of an agreement with any

other organization or country.

SEC. 63. ø22 U.S.C. 2796b¿ LEGISLATIVE REVIEW.—(a)(1) Subject to paragraph (2), in the case of any agreement involving the

lease under this chapter, or the loan under chapter 2 of part II of

the Foreign Assistance Act of 1961, to any foreign country or international organization for a period of one year or longer of any defense articles which are either (i) major defense equipment valued

(in terms of its replacement cost less any depreciation in its value)

at $14,000,000 or more, or (ii) defense articles valued (in terms of

their replacement cost less any depreciation in their value) at

$50,000,000 or more, the agreement may not be entered into or renewed if the Congress, within the 15-day or 30-day period specified

in section 62(c) (1) or (2), as the case may be, enacts a joint resolution prohibiting the proposed lease or loan.

(2) In the case of an agreement described in paragraph (1) that

is entered into with a member country of the North Atlantic Treaty

Organization (NATO) or Australia, Japan, or New Zealand, the

limitations in paragraph (1) shall apply only if the agreement involves a lease or loan of—

(A) major defense equipment valued (in terms of its replacement cost less any depreciation in its value) at

$25,000,000 or more; or

(B) defense articles valued (in terms of their replacement

cost less any depreciation in their value) at $100,000,000 or

more.

(b) Any joint resolution under subsection (a) shall be considered in the Senate in accordance with the provisions of section

601(b) of the International Security Assistance and Arms Export

Control Act of 1976.
405 Sec. 65 ARMS EXPORT CONTROL ACT

(c) For the purpose of expediting the consideration and enactment of joint resolutions under subsection (a), a motion to proceed

to the consideration of any such resolution after it has been reported by the appropriate committee shall be treated as highly

privileged in the House of Representatives.

SEC. 64. ø22 U.S.C. 2796c¿ APPLICATION OF OTHER PROVISIONS

OF LAW.—Any reference to sales of defense articles under this Act

in any provision of law restricting the countries or organizations to

which such sales may be made shall be deemed to include a reference to leases of defense articles under this chapter.

SEC. 65. ø22 U.S.C. 2796d¿ LOAN OF MATERIALS, SUPPLIES,

AND EQUIPMENT FOR RESEARCH AND DEVELOPMENT PURPOSES.—

(a)(1) Except as provided in subsection (c), the Secretary of Defense

may loan to a country that is a NATO or major non-NATO ally materials, supplies, or equipment for the purpose of carrying out a

program of cooperative research, development, testing, or evaluation. The Secretary may accept as a loan or a gift from a country

that is a NATO or major non-NATO ally materials, supplies, or

equipment for such purpose.

(2) Each loan or gift transaction entered into by the Secretary

under this section shall be provided for under the terms of a written agreement between the Secretary and the country concerned.

(3) A program of testing or evaluation for which the Secretary

may loan materials, supplies, or equipment under this section includes a program of testing or evaluation conducted solely for the

purpose of standardization, interchangeability, or technical evaluation if the country to which the materials, supplies, or equipment

are loaned agrees to provide the results of the testing or evaluation

to the United States without charge.

(b) The materials, supplies, or equipment loaned to a country

under this section may be expended or otherwise consumed in connection with any testing or evaluation program without a requirement for reimbursement of the United States if the Secretary—

(1) determines that the success of the research, development, test, or evaluation depends upon expending or otherwise

consuming the materials, supplies, or equipment loaned to the

country; and

(2) approves of the expenditure or consumption of such

materials, supplies, or equipment.

(c) The Secretary of Defense may not loan to a country under

this section any material if the material is a strategic and critical

material and if, at the time the loan is to be made, the quantity

of the material in the National Defense Stockpile (provided for

under section 3 of the Strategic and Critical Materials Stock Piling

Act (50 U.S.C. 98b)) is less than the quantity of such material to

be stockpiled, as determined by the President under section 3(a) of

such Act.

(d) For purposes of this section, the term ‘‘NATO ally’’ means

a member country of the North Atlantic Treaty Organization (other

than the United States).
Sec. 71 ARMS EXPORT CONTROL ACT 406

CHAPTER 7—CONTROL OF MISSILES AND MISSILE

EQUIPMENT OR TECHNOLOGY

SEC. 71. ø22 U.S.C. 2797¿ LICENSING

(a) ESTABLISHMENT OF LIST OF CONTROLLED ITEMS.—The Secretary of State, in consultation with the Secretary of Defense and

the heads of other appropriate departments and agencies, shall establish and maintain, as part of the United States Munitions List,

a list of all items on the MTCR Annex the export of which is not

controlled under section 6(l) of the Export Administration Act of

1979.

(b) REFERRAL OF LICENSE APPLICATIONS.—(1) A determination

of the Secretary of State to approve a license for the export of an

item on the list established under subsection (a) may be made only

after the license application is referred to the Secretary of Defense.

(2) Within 10 days after a license is issued for the export of an

item on the list established under subsection (a), the Secretary of

State shall provide to the Secretary of Defense and the Secretary

of Commerce, the license application and accompanying documents

issued to the applicant, to the extent that the relevant Secretary

indicates the need to receive such application and documents.

(c) INFORMATION SHARING.—The Secretary of State shall establish a procedure for sharing information with appropriate officials

of the intelligence community, as determined by the Director of

Central Intelligence, and with other appropriate Government agencies, that will ensure effective monitoring of transfers of MTCR

equipment or technology and other missile technology.

(d) EXPORTS TO SPACE LAUNCH VEHICLE PROGRAMS.—Within

15 days after the issuance of a license (including any brokering license) for the export of items valued at less than $50,000,000 that

are controlled under this Act pursuant to United States obligations

under the Missile Technology Control Regime and are goods or

services that are intended to support the design, utilization, development, or production of a space launch vehicle system listed in

Category I of the MTCR Annex, the Secretary shall transmit to the

Congress a report describing the licensed export and rationale for

approving such export, including the consistency of such export

with United States missile nonproliferation policy. The requirement contained in the preceding sentence shall not apply to licenses for exports to countries that were members of the MTCR as

of April 17, 1987.

SEC. 72. ø22 U.S.C. 2797a¿ DENIAL OF THE TRANSFER OF MISSILE

EQUIPMENT OR TECHNOLOGY BY UNITED STATES PERSONS

(a) SANCTIONS.—(1) If the President determines that a United

States person knowingly—

(A) exports, transfers, or otherwise engages in the trade of

any item on the MTCR Annex, in violation of the provisions of

section 38 of this Act, section 5 or 6 of the Export Administration Act of 1979 (50 U.S.C. App. 2404, 2405), or any regulations or orders issued under any such provisions,

(B) conspires to or attempts to engage in such export,

transfer, or trade, or
407 Sec. 73 ARMS EXPORT CONTROL ACT

(C) facilitates such export, transfer, or trade by any other

person,

then the President shall impose the applicable sanctions described

in paragraph (2).

(2) The sanctions which apply to a United States person under

paragraph (1) are the following:

(A) If the item on the MTCR Annex involved in the export,

transfer, or trade is missile equipment or technology within

category II of the MTCR Annex, then the President shall deny

to such United States person for a period of 2 years—

(i) United States Government contracts relating to

missile equipment or technology; and

(ii) licenses for the transfer of missile equipment or

technology controlled under this Act.

(B) If the item on the MTCR Annex involved in the export,

transfer, or trade is missile equipment or technology within

category I of the MTCR, then the President shall deny to such

United States person for a period of not less than 2 years—

(i) all United States Government contracts, and

(ii) all export licenses and agreements for items on the

United States Munitions List.

(b) DISCRETIONARY SANCTIONS.—In the case of any determination made pursuant to subsection (a), the President may pursue

any penalty provided in section 38(c) of this Act.

(c) PRESUMPTION.—In determining whether to apply sanctions

under subsection (a) to a United States person involved in the export, transfer, or trade of an item on the MTCR Annex, it should

be a rebuttable presumption that such item is designed for use in

a missile listed in the MTCR Annex if the President determines

that the final destination of the item is a country the government

of which the Secretary of State has determined, for purposes of

6(j)(1)(A) of the Export Administration Act of 1979, has repeatedly

provided support for acts of international terrorism.

(d) WAIVER.—The President may waive the imposition of sanctions under subsection (a) with respect to a product or service if the

President certifies to the Congress that—

(1) the product or service is essential to the national security of the United States; and

(2) such person is a sole source supplier of the product or

service, the product or service is not available from any alternative reliable supplier, and the need for the product or service

cannot be met in a timely manner by improved manufacturing

processes or technological developments.

SEC. 73. ø22 U.S.C. 2797b¿ TRANSFERS OF MISSILE EQUIPMENT OR

TECHNOLOGY BY FOREIGN PERSONS

(a) SANCTIONS.—(1) Subject to subsections (c) through (g), if

the President determines that a foreign person, after the date of

the enactment of this chapter, knowingly—

(A) exports, transfers, or otherwise engages in the trade of

any MTCR equipment or technology that contributes to the acquisition, design, development, or production of missiles in a

country that is not an MTCR adherent and would be, if it were

United States-origin equipment or technology, subject to the

jurisdiction of the United States under this Act,
Sec. 73 ARMS EXPORT CONTROL ACT 408

(B) conspires to or attempts to engage in such export,

transfer, or trade, or

(C) facilitates such export, transfer, or trade by any other

person,

or if the President has made a determination with respect to a foreign person under section 11B(b)(1) of the Export Administration

Act of 1979, then the President shall impose on that foreign person

the applicable sanctions under paragraph (2).

(2) The sanctions which apply to a foreign person under paragraph (1) are the following:

(A) If the item involved in the export, transfer, or trade is

within category II of the MTCR Annex, then the President

shall deny, for a period of 2 years—

(i) United States Government contracts relating to

missile equipment or technology; and

(ii) licenses for the transfer to such foreign person of

missile equipment or technology controlled under this Act.

(B) If the item involved in the export, transfer, or trade is

within category I of the MTCR Annex, then the President shall

deny, for a period of not less than 2 years—

(i) all United States Government contracts with such

foreign person; and

(ii) licenses for the transfer to such foreign person of

all items on the United States Munitions List.

(C) If, in addition to actions taken under subparagraphs

(A) and (B), the President determines that the export, transfer,

or trade has substantially contributed to the design, development,

or production of missiles in a country that is not an MTCR adherent, then the President shall prohibit, for a period of not

less than 2 years, the importation into the United States of

products produced by that foreign person.

(b) INAPPLICABILITY WITH RESPECT TO MTCR ADHERENTS.—

(1) IN GENERAL.—Except as provided in paragraph (2), subsection (a) does not apply with respect to—

(A) any export, transfer, or trading activity that is authorized by the laws of an MTCR adherent, if such authorization is not obtained by misrepresentation or fraud; or

(B) any export, transfer, or trade of an item to an end

user in a country that is an MTCR adherent.

(2) LIMITATION.—Notwithstanding paragraph (1), subsection (a) shall apply to an entity subordinate to a government that engages in exports or transfers described in section

498A(b)(3)(A) of the Foreign Assistance Act of 1961 (22 U.S.C.

2295a(b)(3)(A)).

(c) EFFECT OF ENFORCEMENT ACTIONS BY MTCR ADHERENTS.—

Sanctions set forth in subsection (a) may not be imposed under this

section on a person with respect to acts described in such subsection or, if such sanctions are in effect against a person on account of such acts, such sanctions shall be terminated, if an MTCR

adherent is taking judicial or other enforcement action against that

person with respect to such acts, or that person has been found by

the government of an MTCR adherent to be innocent of wrongdoing

with respect to such acts, and if the President certifies to the Com-
409 Sec. 73 ARMS EXPORT CONTROL ACT

mittee on Foreign Relations of the Senate and the Committee on

International Relations of the House of Representatives that—

(1) for any judicial or other enforcement action taken by

the MTCR adherent, such action has—

(A) been comprehensive; and

(B) been performed to the satisfaction of the United

States; and

(2) with respect to any finding of innocence of wrongdoing,

the United States is satisfied with the basis for such finding.

(d) ADVISORY OPINIONS.—The Secretary of State, in consultation with the Secretary of Defense and the Secretary of Commerce,

may, upon the request of any person, issue an advisory opinion to

that person as to whether a proposed activity by that person would

subject that person to sanctions under this section. Any person who

relies in good faith on such an advisory opinion which states that

the proposed activity would not subject a person to such sanctions,

and any person who thereafter engages in such activity, may not

be made subject to such sanctions on account of such activity.

(e) WAIVER AND REPORT TO CONGRESS.—(1) In any case other

than one in which an advisory opinion has been issued under subsection (d) stating that a proposed activity would not subject a person to sanctions under this section, the President may waive the

application of subsection (a) to a foreign person if the President determines that such waiver is essential to the national security of

the United States.

(2) In the event that the President decides to apply the waiver

described in paragraph (1), the President shall so notify the Committee on Armed Services and the Committee on Foreign Relations

of the Senate and the Committee on National Security and the

Committee on International Relations of the House of Representatives not less than 45 working days before issuing the waiver. Such

notification shall include a report fully articulating the rationale

and circumstances which led the President to apply the waiver.

(f) PRESUMPTION.—In determining whether to apply sanctions

under subsection (a) to a foreign person involved in the export,

transfer, or trade of an item on the MTCR Annex, it should be a

rebuttable presumption that such item is designed for use in a missile listed in the MTCR Annex if the President determines that the

final destination of the item is a country the government of which

the Secretary of State has determined, for purposes of 6(j)(1)(A) of

the Export Administration Act of 1979, has repeatedly provided

support for acts of international terrorism.

(g) ADDITIONAL WAIVER.—The President may waive the imposition of sanctions under paragraph (1) on a person with respect to

a product or service if the President certifies to the Congress that—

(1) the product or service is essential to the national security of the United States; and

(2) such person is a sole source supplier of the product or

service, the product or service is not available from any alternative reliable supplier, and the need for the product or service

cannot be met in a timely manner by improved manufacturing

processes or technological developments.
Sec. 73 ARMS EXPORT CONTROL ACT 410

(h) EXCEPTIONS.—The President shall not apply the sanction

under this section prohibiting the importation of the products of a

foreign person—

(1) in the case of procurement of defense articles or defense services—

(A) under existing contracts or subcontracts, including

the exercise of options for production quantities to satisfy

requirements essential to the national security of the

United States;

(B) if the President determines that the person to

which the sanctions would be applied is a sole source supplier of the defense articles and services, that the defense

articles or services are essential to the national security of

the United States, and that alternative sources are not

readily or reasonably available; or

(C) if the President determines that such articles or

services are essential to the national security of the United

States under defense coproduction agreements or NATO

Programs of Cooperation;

(2) to products or services provided under contracts entered into before the date on which the President publishes his

intention to impose the sanctions; or

(3) to—

(A) spare parts,

(B) component parts, but not finished products, essential to United States products or production,

(C) routine services and maintenance of products, to

the extent that alternative sources are not readily or reasonably available, or

(D) information and technology essential to United

States products or production.

SEC. 73A. ø22 U.S.C. 2797b–1¿ NOTIFICATION OF ADMITTANCE OF MTCR

ADHERENTS.

(a) POLICY REPORTS.—Following any action by the United

States that results in a country becoming a MTCR adherent, the

President shall transmit promptly to the Congress a report which

describes the rationale for such action, together with an assessment of that country’s nonproliferation policies, practices, and commitments. Such report shall also include the text of any agreements or understandings between the United States and such

country regarding the terms and conditions of the country’s adherence to the MTCR.

(b) INTELLIGENCE ASSESSMENT REPORT.—At such times that a

report is transmitted pursuant to subsection (a), the Director of

Central Intelligence shall promptly prepare and submit to the Congress a separate report containing any credible information indicating that the country described in subsection (a) has engaged in

any activity identified under subparagraph (A), (B), or (C) of section 73(a)(1) within the previous two years.
411 Sec. 73B ARMS EXPORT CONTROL ACT

SEC. 73B. ø22 U.S.C. 2797b–2¿ AUTHORITY RELATING TO MTCR ADHERENTS.

Notwithstanding section 73(b), the President may take the actions under section 73(a)(2) under the circumstances described in

section 74(b)(2).

SEC. 74. ø22 U.S.C. 2797c¿ DEFINITIONS

(a) IN GENERAL.—For purposes of this chapter—

(1) the term ‘‘missile’’ means a category I system as defined in the MTCR Annex, and any other unmanned delivery

system of similar capability, as well as the specially designed

production facilities for these systems;

(2) the term ‘‘Missile Technology Control Regime’’ or

‘‘MTCR’’ means the policy statement, between the United

States, the United Kingdom, the Federal Republic of Germany,

France, Italy, Canada, and Japan, announced on April 16,

1987, to restrict sensitive missile-relevant transfers based on

the MTCR Annex, and any amendments thereto;

(3) the term ‘‘MTCR adherent’’ means a country that participates in the MTCR or that, pursuant to an international

understanding to which the United States is a party, controls

MTCR equipment or technology in accordance with the criteria

and standards set forth in the MTCR;

(4) the term ‘‘MTCR Annex’’ means the Guidelines and

Equipment and Technology Annex of the MTCR, and any

amendments thereto;

(5) the terms ‘‘missile equipment or technology’’ and

‘‘MTCR equipment or technology’’ mean those items listed in

category I or category II of the MTCR Annex;

(6) the term ‘‘United States person’’ has the meaning given

that term in section 16(2) of the Export Administration Act of

1979 (50 U.S.C. App. 2415(2));

(7) the term ‘‘foreign person’’ means any person other than

a United States person;

(8)(A) the term ‘‘person’’ means a natural person as well as

a corporation, business association, partnership, society, trust,

any other nongovernmental entity, organization, or group, and

any governmental entity operating as a business enterprise,

and any successor of any such entity; and

(B) in the case of countries with non-market economies (excluding former members of the Warsaw Pact), the term ‘‘person’’ means—

(i) all activities of that government relating to the development or production of any missile equipment or technology; and

(ii) all activities of that government affecting the development or production of electronics, space systems or

equipment, and military aircraft; and

(9) the term ‘‘otherwise engaged in the trade of’’ means,

with respect to a particular export or transfer, to be a freight

forwarder or designated exporting agent, or a consignee or end

user of the item to be exported or transferred.

(b) INTERNATIONAL UNDERSTANDING DEFINED.—For purposes of

subsection (a)(3), as it relates to any international understanding
Sec. 81 ARMS EXPORT CONTROL ACT 412

concluded with the United States after January 1, 2000, the term

‘‘international understanding’’ means—

(1) any specific agreement by a country not to export,

transfer, or otherwise engage in the trade of any MTCR equipment or technology that contributes to the acquisition, design,

development, or production of missiles in a country that is not

an MTCR adherent and would be, if it were United States-origin equipment or technology, subject to the jurisdiction of the

United States under this Act; or

(2) any specific understanding by a country that, notwithstanding section 73(b) of this Act, the United States retains the

right to take the actions under section 73(a)(2) of this Act in

the case of any export or transfer of any MTCR equipment or

technology that contributes to the acquisition, design, development, or production of missiles in a country that is not an

MTCR adherent and would be, if it were United States-origin

equipment or technology, subject to the jurisdiction of the

United States under this Act.

CHAPTER 8—CHEMICAL OR BIOLOGICAL WEAPONS

PROLIFERATION

SEC. 81. ø22 U.S.C. 2798¿ SANCTIONS AGAINST CERTAIN FOREIGN PERSONS.

(a) IMPOSITION OF SANCTIONS.— (1) DETERMINATION BY THE PRESIDENT.—Except as provided in subsection (b)(2), the President shall impose both of

the sanctions described in subsection (c) if the President determines that a foreign person, on or after the date of the enactment of this section, has knowingly and materially

contributed—

(A) through the export from the United States of any

goods or technology that are subject to the jurisdiction of

the United States,

(B) through the export from any other country of any

goods or technology that would be, if they were United

States goods or technology, subject to the jurisdiction of

the United States, or

(C) through any other transaction not subject to sanctions pursuant to the Export Administration Act of 1979,

to the efforts by any foreign country, project, or entity described in paragraph (2) to use, develop, produce, stockpile, or

otherwise acquire chemical or biological weapons.

(2) COUNTRIES, PROJECTS, OR ENTITIES RECEIVING ASSIST- ANCE.—Paragraph (1) applies in the case of—

(A) any foreign country that the President determines

has, at any time after January 1, 1980—

(i) used chemical or biological weapons in violation

of international law;

(ii) used lethal chemical or biological weapons

against its own nationals; or

(iii) made substantial preparations to engage in

the activities described in clause (i) or (ii);

(B) any foreign country whose government is determined for purposes of section 6(j) of the Export Adminis-
413 Sec. 81 ARMS EXPORT CONTROL ACT

tration Act of 1979 (50 U.S.C. 2405(j)) to be a government

that has repeatedly provided support for acts of international terrorism; or

(C) any other foreign country, project, or entity designated by the President for purposes of this section.

(3) PERSONS AGAINST WHOM SANCTIONS ARE TO BE IM- POSED.—Sanctions shall be imposed pursuant to paragraph (1)

on—

(A) the foreign person with respect to which the President makes the determination described in that paragraph;

(B) any successor entity to that foreign person;

(C) any foreign person that is a parent or subsidiary

of that foreign person if that parent or subsidiary knowingly assisted in the activities which were the basis of that

determination; and

(D) any foreign person that is an affiliate of that foreign person if that affiliate knowingly assisted in the activities which were the basis of that determination and if

that affiliate is controlled in fact by that foreign person.

(b) CONSULTATIONS WITH AND ACTIONS BY FOREIGN GOVERN- MENT OF JURISDICTION.— (1) CONSULTATIONS.—If the President makes the determinations described in subsection (a)(1) with respect to a foreign person, the Congress urges the President to initiate consultations immediately with the government with primary jurisdiction over that foreign person with respect to the imposition of sanctions pursuant to this section.

(2) ACTIONS BY GOVERNMENT OF JURISDICTION.—In order to

pursue such consultations with that government, the President

may delay imposition of sanctions pursuant to this section for

a period of up to 90 days. Following these consultations, the

President shall impose sanctions unless the President determines and certifies to the Congress that that government has

taken specific and effective actions, including appropriate penalties, to terminate the involvement of the foreign person in

the activities described in subsection (a)(1). The President may

delay imposition of sanctions for an additional period of up to

90 days if the President determines and certifies to the Congress that that government is in the process of taking the actions described in the preceding sentence.

(3) REPORT TO CONGRESS.—The President shall report to

the Congress, not later than 90 days after making a determination under subsection (a)(1), on the status of consultations

with the appropriate government under this subsection, and

the basis for any determination under paragraph (2) of this

subsection that such government has taken specific corrective

actions.

(c) SANCTIONS.—

(1) DESCRIPTION OF SANCTIONS.—The sanctions to be imposed pursuant to subsection (a)(1) are, except as provided in

paragraph (2) of this subsection, the following:

(A) PROCUREMENT SANCTION.—The United States Government shall not procure, or enter into any contract for
Sec. 81 ARMS EXPORT CONTROL ACT 414

the procurement of, any goods or services from any person

described in subsection (a)(3).

(B) IMPORT SANCTIONS.—The importation into the

United States of products produced by any person described in subsection (a)(3) shall be prohibited.

(2) EXCEPTIONS.—The President shall not be required to

apply or maintain sanctions under this section—

(A) in the case of procurement of defense articles or

defense services—

(i) under existing contracts or subcontracts, including the exercise of options for production quantities to satisfy United States operational military requirements;

(ii) if the President determines that the person or

other entity to which the sanctions would otherwise be

applied is a sole source supplier of the defense articles

or services, that the defense articles or services are essential, and that alternative sources are not readily or

reasonably available; or

(iii) if the President determines that such articles

or services are essential to the national security under

defense coproduction agreements;

(B) to products or services provided under contracts

entered into before the date on which the President publishes his intention to impose sanctions;

(C) to—

(i) spare parts,

(ii) component parts, but not finished products, essential to United States products or production, or

(iii) routine servicing and maintenance of products, to the extent that alternative sources are not

readily or reasonably available;

(D) to information and technology essential to United

States products or production; or

(E) to medical or other humanitarian items.

(d) TERMINATION OF SANCTIONS.—The sanctions imposed pursuant to this section shall apply for a period of at least 12 months

following the imposition of sanctions and shall cease to apply thereafter only if the President determines and certifies to the Congress

that reliable information indicates that the foreign person with respect to which the determination was made under subsection (a)(1)

has ceased to aid or abet any foreign government, project, or entity

in its efforts to acquire chemical or biological weapons capability as

described in that subsection.

(e) WAIVER.—

(1) CRITERION FOR WAIVER.—The President may waive the

application of any sanction imposed on any person pursuant to

this section, after the end of the 12–month period beginning on

the date on which that sanction was imposed on that person,

if the President determines and certifies to the Congress that

such waiver is important to the national security interests of

the United States.

(2) NOTIFICATION OF AND REPORT TO CONGRESS.—If the

President decides to exercise the waiver authority provided in
415 Sec. 93 ARMS EXPORT CONTROL ACT

paragraph (1), the President shall so notify the Congress not

less than 20 days before the waiver takes effect. Such notification shall include a report fully articulating the rationale and

circumstances which led the President to exercise the waiver

authority.

(f) DEFINITION OF FOREIGN PERSON.—For the purposes of this

section, the term ‘‘foreign person’’ means—

(1) an individual who is not a citizen of the United States

or an alien admitted for permanent residence to the United

States; or

(2) a corporation, partnership, or other entity which is created or organized under the laws of a foreign country or which

has its principal place of business outside the United States.

CHAPTER 9—TRANSFER OF CERTAIN CFE TREATYLIMITED EQUIPMENT TO NATO MEMBERS

SEC. 91. ø22 U.S.C. 2799¿ PURPOSE.

The purpose of this chapter is to authorize the President to

support, consistent with the CFE Treaty, a NATO equipment

transfer program that will—

(1) enhance NATO’s forces,

(2) increase NATO standardization and interoperability,

and

(3) better distribute defense burdens within the NATO alliance.

SEC. 92. ø22 U.S.C. 2799a¿ CFE TREATY OBLIGATIONS.

The authorities provided in this chapter shall be exercised consistent with the obligations incurred by the United States in connection with the CFE Treaty.

SEC. 93. ø22 U.S.C. 2799b¿ AUTHORITIES.

(a) GENERAL AUTHORITY.—The President may transfer to any

NATO/CFE country, in accordance with NATO plans, defense

articles—

(1) that are battle tanks, armoured combat vehicles, or artillery included within the CFE Treaty’s definition of ‘‘conventional armaments and equipment limited by the Treaty’’;

(2) that were, as of the date of signature of the CFE Treaty, in the stocks of the Department of Defense and located in

the CFE Treaty’s area of application; and

(3) that the President determines are not needed by

United States military forces within the CFE Treaty’s area of

application.

(b) ACCEPTANCE OF NATO ASSISTANCE IN ELIMINATING DIRECT

COSTS OF TRANSFERS.—In order to eliminate direct costs of facilitating transfers of defense articles under subsection (a), the United

States may utilize services provided by NATO or any NATO/CFE

country, including inspection, repair, or transportation services

with respect to defense articles so transferred.

(c) ACCEPTANCE OF NATO ASSISTANCE IN MEETING CERTAIN

UNITED STATES OBLIGATIONS.—In order to facilitate United States

compliance with the CFE Treaty-mandated obligations for destruction of conventional armaments and equipment limited by the CFE
Sec. 94 ARMS EXPORT CONTROL ACT 416

Treaty, the United States may utilize services or funds provided by

NATO or any NATO/CFE country.

(d) AUTHORITY TO TRANSFER ON A GRANT BASIS.—Defense articles may be transferred under subsection (a) without cost to the recipient country.

(e) THIRD COUNTRY TRANSFERS RESTRICTIONS.—For purposes

of sections 3(a)(2), 3(a)(3), 3(c), and 3(d) of this Act, defense articles

transferred under subsection (a) of this section shall be deemed to

have been sold under this Act.

(f) MAINTENANCE OF MILITARY BALANCE IN THE EASTERN MEDITERRANEAN.—The President shall ensure that transfers by the

United States under subsection (a), taken together with transfers

by other NATO/CFE countries in implementing the CFE Treaty,

are of such valuations so as to be consistent with the United States

policy, embodied in section 620C of the Foreign Assistance Act of

1961, of maintaining the military balance in the Eastern Mediterranean.

(g) EXPIRATION OF AUTHORITY.—

(1) IN GENERAL.—Except as provided in paragraph (2), the

authority of subsection (a) expires at the end of the 40–month

period beginning on the date on which the CFE Treaty enters

into force.

(2) TRANSITION RULE.—Paragraph (1) does not apply with

respect to a transfer of defense articles for which notification

under section 94(a) is submitted before the end of the period

described in that paragraph.

SEC. 94. ø22 U.S.C. 2799c¿ NOTIFICATIONS AND REPORTS TO CONGRESS.

(a) NOTIFICATIONS.—Not less than 15 days before transferring

any defense articles pursuant to section 93(a), the President shall

notify the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate in accordance with the procedures applicable to reprogramming notifications pursuant to section 634A of the Foreign Assistance Act of

1961.

(b) ANNUAL REPORTS.—Not later than February 1 each year,

the President shall submit to the Committee on Foreign Affairs

and the Committee on Armed Services of the House of Representatives and the Committee on Foreign Relations and the Committee

on Armed Services of the Senate a report that—

(1) lists all transfers made to each recipient NATO/CFE

country by the United States under section 93(a) during the

preceding calendar year;

(2) describes how those transfers further the purposes described in paragraphs (1) through (3) of section 91; and

(3) lists, on a country-by-country basis, all transfers to another country of conventional armaments and equipment limited by the CFE Treaty—

(A) by each NATO/CFE country (other than the United

States) in implementing the CFE Treaty, and

(B) by each country of the Eastern Group of States

Parties in implementing the CFE Treaty.
417 Sec. 101 ARMS EXPORT CONTROL ACT

SEC. 95. ø22 U.S.C. 2799d¿ DEFINITIONS.

As used in this chapter—

(1) the term ‘‘CFE Treaty’’ means the Treaty on Conventional Armed Forces in Europe (signed at Paris, November 19,

1990);

(2) the term ‘‘conventional armaments and equipment limited by the CFE Treaty’’ has the same meaning as the term

‘‘conventional armaments and equipment limited by the Treaty’’ does under paragraph 1(J) of article II of the CFE Treaty;

(3) the term ‘‘NATO’’ means the North Atlantic Treaty Organization;

(4) the term ‘‘NATO/CFE country’’ means a member country of NATO that is a party to the CFE Treaty and is listed

in paragraph 1(A) of article II of the CFE Treaty within the

group of States Parties that signed or acceded to the Treaty of

Brussels of 1948 or the Treaty of Washington of 1949 (the

North Atlantic Treaty); and

(5) the term ‘‘country of the Eastern Group of States Parties’’ means a country that is listed in paragraph 1(A) of article

II of the CFE Treaty within the group of States Parties that

signed the Treaty of Warsaw of 1955 or a successor state to

such a country.

CHAPTER 10—NUCLEAR NONPROLIFERATION

CONTROLS

SEC. 101. ø22 U.S.C. 2799aa¿ NUCLEAR ENRICHMENT TRANSFERS.

(a) PROHIBITIONS; SAFEGUARDS AND MANAGEMENT.—Except as

provided in subsection (b) of this section, no funds made available

to carry out the Foreign Assistance Act of 1961 or this Act may be

used for the purpose of providing economic assistance (including assistance under chapter 4 of part II of the Foreign Assistance Act

of 1961), providing military assistance or grant military education

and training, providing assistance under chapter 6 of part II of that

Act, or extending military credits or making guarantees, to any

country which the President determines delivers nuclear enrichment equipment, materials, or technology to any other country on

or after August 4, 1977, or receives such equipment, materials, or

technology from any other country on or after August 4, 1977, unless before such delivery—

(1) the supplying country and receiving country have

reached agreement to place all such equipment, materials, or

technology, upon delivery, under multilateral auspices and

management when available; and

(2) the recipient country has entered into an agreement

with the International Atomic Energy Agency to place all such

equipment, materials, technology, and all nuclear fuel and facilities in such country under the safeguards system of such

Agency.

(b) CERTIFICATION BY PRESIDENT OF NECESSITY OF CONTINUED

ASSISTANCE; DISAPPROVAL BY CONGRESS.—(1) Notwithstanding subsection (a) of this section, the President may furnish assistance

which would otherwise be prohibited under such subsection if he

determines and certifies in writing to the Speaker of the House of
Sec. 102 ARMS EXPORT CONTROL ACT 418

Representatives and the Committee on Foreign Relations of the

Senate that—

(A) the termination of such assistance would have a serious adverse effect on vital United States interests; and

(B) he has received reliable assurances that the country in

question will not acquire or develop nuclear weapons or assist

other nations in doing so.

Such certification shall set forth the reasons supporting such determination in each particular case.

(2)(A) A certification under paragraph (1) of this subsection

shall take effect on the date on which the certification is received

by the Congress. However, if, within thirty calendar days after receiving this certification, the Congress enacts a joint resolution

stating in substance that the Congress disapproves the furnishing

of assistance pursuant to the certification, then upon the enactment of that resolution the certification shall cease to be effective

and all deliveries of assistance furnished under the authority of

that certification shall be suspended immediately.

(B) Any joint resolution under this paragraph shall be considered in the Senate in accordance with the provisions of section

601(b) of the International Security Assistance and Arms Export

Control Act of 1976.

SEC. 102. ø22 U.S.C. 2799aa–1¿ NUCLEAR REPROCESSING TRANSFERS,

ILLEGAL EXPORTS FOR NUCLEAR EXPLOSIVE DEVICES,

TRANSFERS OF NUCLEAR EXPLOSIVE DEVICES, AND NUCLEAR DETONATIONS.

(a) PROHIBITIONS ON ASSISTANCE TO COUNTRIES INVOLVED IN

TRANSFER OF NUCLEAR REPROCESSING EQUIPMENT, MATERIALS, OR

TECHNOLOGY; EXCEPTIONS; PROCEDURES APPLICABLE.—(1) Except

as provided in paragraph (2) of this subsection, no funds made

available to carry out the Foreign Assistance Act of 1961 or this

Act may be used for the purpose of providing economic assistance

(including assistance under chapter 4 of part II of the Foreign Assistance Act of 1961), providing military assistance or grant military education and training, providing assistance under chapter 6

of part II of that Act, or extending military credits or making guarantees, to any country which the President determines—

(A) delivers nuclear reprocessing equipment, materials, or

technology to any other country on or after August 4, 1977, or

receives such equipment, materials, or technology from any

other country on or after August 4, 1977 (except for the transfer of reprocessing technology associated with the investigation, under international evaluation programs in which the

United States participates, of technologies which are alternatives to pure plutonium reprocessing), or

(B) is a non-nuclear-weapon state which, on or after August 8, 1985, exports illegally (or attempts to export illegally)

from the United States any material, equipment, or technology

which would contribute significantly to the ability of such

country to manufacture a nuclear explosive device, if the President determines that the material, equipment, or technology

was to be used by such country in the manufacture of a nuclear explosive device.
419 Sec. 102 ARMS EXPORT CONTROL ACT

For purposes of clause (B), an export (or attempted export) by a

person who is an agent of, or is otherwise acting on behalf of or

in the interests of, a country shall be considered to be an export

(or attempted export) by that country.

(2) Notwithstanding paragraph (1) of this subsection, the President in any fiscal year may furnish assistance which would otherwise be prohibited under that paragraph if he determines and certifies in writing during that fiscal year to the Speaker of the House

of Representatives and the Committee on Foreign Relations of the

Senate that the termination of such assistance would be seriously

prejudicial to the achievement of United States nonproliferation objectives or otherwise jeopardize the common defense and security.

The President shall transmit with such certification a statement

setting forth the specific reasons therefor.

(3)(A) A certification under paragraph (2) of this subsection

shall take effect on the date on which the certification is received

by the Congress. However, if, within 30 calendar days after receiving this certification, the Congress enacts a joint resolution stating

in substance that the Congress disapproves the furnishing of assistance pursuant to the certification, then upon the enactment of

that resolution the certification shall cease to be effective and all

deliveries of assistance furnished under the authority of that certification shall be suspended immediately.

(B) Any joint resolution under this paragraph shall be considered in the Senate in accordance with the provisions of section

601(b) of the International Security Assistance and Arms Export

Control Act of 1976.

(b) PROHIBITIONS ON ASSISTANCE TO COUNTRIES INVOLVED IN

TRANSFER OR USE OF NUCLEAR EXPLOSIVE DEVICES; EXCEPTIONS;

PROCEDURES APPLICABLE.—(1) Except as provided in paragraphs

(4), (5), and (6), in the event that the President determines that

any country, after the effective date of part B of the Nuclear Proliferation Prevention Act of 1994—

(A) transfers to a non-nuclear-weapon state a nuclear explosive device,

(B) is a non-nuclear-weapon state and either—

(i) receives a nuclear explosive device, or

(ii) detonates a nuclear explosive device,

(C) transfers to a non-nuclear-weapon state any design information or component which is determined by the President

to be important to, and known by the transferring country to

be intended by the recipient state for use in, the development

or manufacture of any nuclear explosive device, or

(D) is a non-nuclear-weapon state and seeks and receives

any design information or component which is determined by

the President to be important to, and intended by the recipient

state for use in, the development or manufacture of any nuclear explosive device,

then the President shall forthwith report in writing his determination to the Congress and shall forthwith impose the sanctions described in paragraph (2) against that country.

(2) The sanctions referred to in paragraph (1) are as follows:

(A) The United States Government shall terminate assistance to that country under the Foreign Assistance Act of 1961,
Sec. 102 ARMS EXPORT CONTROL ACT 420

except for humanitarian assistance or food or other agricultural commodities.

(B) The United States Government shall terminate—

(i) sales to that country under this Act of any defense

articles, defense services, or design and construction services, and

(ii) licenses for the export to that country of any item

on the United States Munitions List.

(C) The United States Government shall terminate all foreign military financing for that country under this Act.

(D) The United States Government shall deny to that

country any credit, credit guarantees, or other financial assistance by any department, agency, or instrumentality of the

United States Government, except that the sanction of this

subparagraph shall not apply—

(i) to any transaction subject to the reporting requirements of title V of the National Security Act of 1947 (relating to congressional oversight of intelligence activities),

(ii) to medicines, medical equipment, and humanitarian assistance, or

(iii) to any credit, credit guarantee, or financial assistance provided by the Department of Agriculture to support

the purchase of food or other agricultural commodity.

(E) The United States Government shall oppose, in accordance with section 701 of the International Financial Institutions Act (22 U.S.C. 262d), the extension of any loan or financial or technical assistance to that country by any international

financial institution.

(F) The United States Government shall prohibit any

United States bank from making any loan or providing any

credit to the government of that country, except for loans or

credits for the purpose of purchasing food or other agricultural

commodities, which includes fertilizer.

(G) The authorities of section 6 of the Export Administration Act of 1979 shall be used to prohibit exports to that country of specific goods and technology (excluding food and other

agricultural commodities), except that such prohibition shall

not apply to any transaction subject to the reporting requirements of title V of the National Security Act of 1947 (relating

to congressional oversight of intelligence activities).

(3) As used in this subsection—

(A) the term ‘‘design information’’ means specific information that relates to the design of a nuclear explosive device and

that is not available to the public; and

(B) the term ‘‘component’’ means a specific component of a

nuclear explosive device.

(4)(A) Notwithstanding paragraph (1) of this subsection, the

President may, for a period of not more than 30 days of continuous

session, delay the imposition of sanctions which would otherwise be

required under paragraph (1)(A) or (1)(B) of this subsection if the

President first transmits to the Speaker of the House of Representatives, and to the chairman of the Committee on Foreign Relations

of the Senate, a certification that he has determined that an immediate imposition of sanctions on that country would be detrimental
421 Sec. 102 ARMS EXPORT CONTROL ACT

to the national security of the United States. Not more than one

such certification may be transmitted for a country with respect to

the same detonation, transfer, or receipt of a nuclear explosive device.

(B) If the President transmits a certification to the Congress

under subparagraph (A), a joint resolution which would permit the

President to exercise the waiver authority of paragraph (5) of this

subsection shall, if introduced in either House within thirty days

of continuous session after the Congress receives this certification,

be considered in the Senate in accordance with subparagraph (C)

of this paragraph.

(C) Any joint resolution under this paragraph shall be considered in the Senate in accordance with the provisions of section

601(b) of the International Security Assistance and Arms Export

Control Act of 1976.

(D) For purposes of this paragraph, the term ‘‘joint resolution’’

means a joint resolution the matter after the resolving clause of

which is as follows: ‘‘That the Congress having received on a

certification by the President under section 102(b)(4) of the Arms

Export Control Act with respect to , the Congress hereby authorizes the President to exercise the waiver authority contained in

section 102(b)(5) of that Act.’’, with the date of receipt of the certification inserted in the first blank and the name of the country inserted in the second blank.

(5) Notwithstanding paragraph (1) of this subsection, if the

Congress enacts a joint resolution under paragraph (4) of this subsection, the President may waive any sanction which would otherwise be required under paragraph (1)(A) or (1)(B) if he determines

and certifies in writing to the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate that

the imposition of such sanction would be seriously prejudicial to

the achievement of United States nonproliferation objectives or otherwise jeopardize the common defense and security. The President

shall transmit with such certification a statement setting forth the

specific reasons therefor.

(6)(A) In the event the President is required to impose sanctions against a country under paragraph (1)(C) or (1)(D), the President shall forthwith so inform such country and shall impose the

required sanctions beginning 30 days after submitting to the Congress the report required by paragraph (1) unless, and to the extent

that, there is enacted during the 30-day period a law prohibiting

the imposition of such sanctions.

(B) Notwithstanding any other provision of law, the sanctions

which are required to be imposed against a country under paragraph (1)(C) or (1)(D) shall not apply if the President determines

and certifies in writing to the Committee on Foreign Relations and

the Committee on Governmental Affairs of the Senate and the

Committee on Foreign Affairs of the House of Representatives that

the application of such sanctions against such country would have

a serious adverse effect on vital United States interests. The President shall transmit with such certification a statement setting

forth the specific reasons therefor.

(7) For purposes of this subsection, continuity of session is broken only by an adjournment of Congress sine die and the days on
Sec. 102 ARMS EXPORT CONTROL ACT 422

which either House is not in session because of an adjournment of

more than three days to a day certain are excluded in the computation of any period of time in which Congress is in continuous session.

(8) The President may not delegate or transfer his power, authority, or discretion to make or modify determinations under this

subsection.

(c) NON-NUCLEAR-WEAPON STATE DEFINED.—As used in this

section, the term ‘‘non-nuclear-weapon state’’ means any country

which is not a nuclear-weapon state, as defined in Article IX(3) of

the Treaty on the Non-Proliferation of Nuclear Weapons.

SEC. 103. ø22 U.S.C. 2799aa–2¿ DEFINITION OF NUCLEAR EXPLOSIVE DEVICE.

As used in this chapter, the term ‘‘nuclear explosive device’’

has the meaning given that term in section 830(4) of the Nuclear

Proliferation Prevention Act of 1994.
423

b. Landmine Export Moratorium

(Section 1365 of the National Defense Authorization Act for Fiscal Year 1993 (Public

Law 102–484))

SEC. 1365. ø22 U.S.C. 2778 note¿ LANDMINE EXPORT MORATORIUM.

(a) FINDINGS.—The Congress makes the following findings:

(1) Anti-personnel landmines, which are specifically designed to maim and kill people, have been used indiscriminately in dramatically increasing numbers, primarily in

insurgencies in poor developing countries. Noncombatant civilians, including tens of thousands of children, have been the

primary victims.

(2) Unlike other military weapons, landmines often remain

implanted and undiscovered after conflict has ended, causing

untold suffering to civilian populations. In Afghanistan, Cambodia, Laos, Vietnam, and Angola, tens of millions of

unexploded landmines have rendered whole areas uninhabitable. In Afghanistan, an estimated hundreds of thousands of

people have been maimed and killed by landmines during the

14-year civil war. In Cambodia, more than 20,000 civilians

have lost limbs and another 60 are being maimed each month

from landmines.

(3) Over 35 countries are known to manufacture landmines, including the United States. However, the United

States is not a major exporter of landmines. During the past

ten years the Department of State has approved ten licenses

for the commercial export of anti-personnel landmines valued

at $980,000, and during the past five years the Department of

Defense has approved the sale of 13,156 anti-personnel landmines valued at $841,145.

(4) The United States signed, but has not ratified, the

1981 Convention on Prohibitions or Restrictions on the Use of

Certain Conventional Weapons Which May Be Deemed To Be

Excessively Injurious or To Have Indiscriminate Effects. The

Convention prohibits the indiscriminate use of landmines.

(5) When it signed the Convention, the United States stated: ‘‘We believe that the Convention represents a positive step

forward in efforts to minimize injury or damage to the civilian

population in time of armed conflict. Our signature of the Convention reflects the general willingness of the United States to

adopt practical and reasonable provisions concerning the conduct of military operations, for the purpose of protecting noncombatants.’’.

(6) The President should submit the Convention to the

Senate for its advice and consent to ratification, and the President should actively negotiate under United Nations auspices

or other auspices an international agreement, or a modification

of the Convention, to prohibit the sale, transfer or export of
Sec. 1365 LANDMINE EXPORT MORATORIUM 424

1Section 553 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2000 (as enacted into law by section 1000(a)(2) of Public Law 106–113 (113 Stat.

1535)), sought to amend subsection (c) by striking ‘‘During the five-year period beginning on October 23, 1992’’ and inserting ‘‘During the 11-year period beginning on October 23, 1992’’. However, the ‘‘five-year period’’ had been changed to an ‘‘eight-year period’’ by section 556 of Public

Law 104–208 (110 Stat. 3009–161) so the amendment could not be executed.

anti-personnel landmines. Such an agreement or modification

would be an appropriate response to the end of the Cold War

and the promotion of arms control agreements to reduce the indiscriminate killing and maiming of civilians.

(7) The United States should set an example for other

countries in such negotiations, by implementing a one-year

moratorium on the sale, transfer or export of anti-personnel

landmines.

(b) STATEMENT OF POLICY.—(1) It shall be the policy of the

United States to seek verifiable international agreements prohibiting the sale, transfer, or export, and further limiting the use, production, possession, and deployment of anti-personnel landmines.

(2) It is the sense of the Congress that the President should

actively seek to negotiate under United Nations auspices or other

auspices an international agreement, or a modification of the Convention, to prohibit the sale, transfer, or export of anti-personnel

landmines.

(c) MORATORIUM ON TRANSFERS OF ANTI-PERSONNEL LANDMINES ABROAD.—During the eight-year period 1 beginning on October 23, 1992—

(1) no sale may be made or financed, no transfer may be

made, and no license for export may be issued, under the Arms

Export Control Act, with respect to any anti-personnel landmine; and

(2) no assistance may be provided under the Foreign Assistance Act of 1961, with respect to the provision of any antipersonnel landmine.

(e) DEFINITION.—For purposes of this section, the term ‘‘antipersonnel landmine’’ means—

(1) any munition placed under, on, or near the ground or

other surface area, or delivered by artillery, rocket, mortar, or

similar means or dropped from an aircraft and which is designed to be detonated or exploded by the presence, proximity,

or contact of a person;

(2) any device or material which is designed, constructed,

or adapted to kill or injure and which functions unexpectedly

when a person disturbs or approaches an apparently harmless

object or performs an apparently safe act;

(3) any manually-emplaced munition or device designed to

kill, injure, or damage and which is actuated by remote control

or automatically after a lapse of time.
425

c. Export Controls and Reporting Requirements Regarding

High Performance Computers

(Sections 1211–1215 of the National Defense Authorization Act for Fiscal Year 1998

(Public Law 105–85))

TITLE XII—MATTERS RELATING TO OTHER NATIONS

Subtitle B—Export Controls on High Performance

Computers

SEC. 1211. ø50 U.S.C. App. 2404 note¿ EXPORT APPROVALS FOR HIGH

PERFORMANCE COMPUTERS.

(a) PRIOR APPROVAL OF EXPORTS AND REEXPORTS.—The President shall require that no digital computer with a composite theoretical performance level of more than 2,000 millions of theoretical

operations per second (MTOPS) or with such other composite theoretical performance level as may be established subsequently by

the President under subsection (d), may be exported or reexported

without a license to a country specified in subsection (b) if the Secretary of Commerce, the Secretary of Defense, the Secretary of Energy, the Secretary of State, or the Director of the Arms Control

and Disarmament Agency objects, in writing, to such export or reexport. Any person proposing to export or reexport such a digital

computer shall so notify the Secretary of Commerce, who, within

24 hours after receiving the notification, shall transmit the notification to the Secretary of Defense, the Secretary of Energy, the

Secretary of State, and the Director of the Arms Control and Disarmament Agency.

(b) COVERED COUNTRIES.—For purposes of subsection (a), the

countries specified in this subsection are the countries listed as

‘‘Computer Tier 3’’ eligible countries in section 740.7(d) of title 15

of the Code of Federal Regulations, as in effect on June 10, 1997,

subject to modification by the President under subsection (e).

(c) TIME LIMIT.—Written objections under subsection (a) to an

export or reexport shall be raised within 10 days after the notification is received under subsection (a). If such a written objection to

the export or reexport of a computer is raised, the computer may

be exported or reexported only pursuant to a license issued by the

Secretary of Commerce under the Export Administration Regulations of the Department of Commerce, without regard to the licensing exceptions otherwise authorized under section 740.7 of title 15

of the Code of Federal Regulations, as in effect on June 10, 1997.

If no objection is raised within the 10-day period, the export or reexport is authorized.

(d) ADJUSTMENT OF COMPOSITE THEORETICAL PERFORMANCE.—

The President, in consultation with the Secretary of Commerce, the

Secretary of Defense, the Secretary of Energy, the Secretary of

State, and the Director of the Arms Control and Disarmament
Sec. 1211 COMPUTER EXPORT CONTROLS 426

Agency, may establish a new composite theoretical performance

level for purposes of subsection (a). Such new level shall not take

effect until 60 days after the President submits to the congressional

committees designated in section 1215 a report setting forth the

new composite theoretical performance level and the justification

for such new level. Each report shall, at a minimum—

(1) address the extent to which high performance computers of a composite theoretical level between the level established in subsection (a) or such level as has been previously adjusted pursuant to this section and the new level, are available

from other countries;

(2) address all potential uses of military significance to

which high performance computers at the new level could be

applied; and

(3) assess the impact of such uses on the national security

interests of the United States.

(e) ADJUSTMENT OF COVERED COUNTRIES.—

(1) IN GENERAL.—The President, in consultation with the

Secretary of Commerce, the Secretary of Defense, the Secretary

of Energy, the Secretary of State, and the Director of the Arms

Control and Disarmament Agency, may add a country to or remove a country from the list of covered countries in subsection

(b), except that a country may be removed from the list only

in accordance with paragraph (2).

(2) DELETIONS FROM LIST OF COVERED COUNTRIES.—The removal of a country from the list of covered countries under

subsection (b) shall not take effect until 120 days after the

President submits to the congressional committees designated

in section 1215 a report setting forth the justification for the

deletion.

(3) EXCLUDED COUNTRIES.—A country may not be removed

from the list of covered countries under subsection (b) if—

(A) the country is a ‘‘nuclear-weapon state’’ (as defined

by Article IX of the Treaty on the Non-Proliferation of Nuclear Weapons) and the country is not a member of the

North Atlantic Treaty Organization; or

(B) the country is not a signatory of the Treaty on the

Non-Proliferation of Nuclear Weapons and the country is

listed on Annex 2 to the Comprehensive Nuclear Test-Ban

Treaty.

(f) CLASSIFICATION.—Each report under subsections (d) and (e)

shall be submitted in an unclassified form and may, if necessary,

have a classified supplement.

(g) DELEGATION OF OBJECTION AUTHORITY WITHIN THE DEPARTMENT OF DEFENSE.—For the purposes of the Department of

Defense, the authority to issue an objection referred to in subsection (a) shall be executed for the Secretary of Defense by an official at the Assistant Secretary level within the office of the Under

Secretary of Defense for Policy. In implementing subsection (a), the

Secretary of Defense shall ensure that Department of Defense procedures maximize the ability of the Department of Defense to be

able to issue an objection within the 10-day period specified in subsection (c).
427 Sec. 1213 COMPUTER EXPORT CONTROLS

(h) CALCULATION OF 60-DAY PERIOD.—The 60-day period referred to in subsection (d) shall be calculated by excluding the days

on which either House of Congress is not in session because of an

adjournment of the Congress sine die.

SEC. 1212. ø50 U.S.C. App. 2404 note¿ REPORT ON EXPORTS OF HIGH

PERFORMANCE COMPUTERS.

(a) REPORT.—Not later than 60 days after the date of the enactment of this Act, the President shall provide to the congressional committees specified in section 1215 a report identifying all

exports of digital computers with a composite theoretical performance of more than 2,000 millions of theoretical operations per second (MTOPS) to all countries since January 25, 1996. For each export, the report shall identify—

(1) whether an export license was applied for and whether

one was granted;

(2) the date of the transfer of the computer;

(3) the United States manufacturer and exporter of the

computer;

(4) the MTOPS level of the computer; and

(5) the recipient country and end user.

(b) ADDITIONAL INFORMATION ON EXPORTS TO CERTAIN COUNTRIES.—In the case of exports to countries specified in subsection

(c), the report under subsection (a) shall identify the intended end

use for the exported computer and the assessment by the executive

branch of whether the end user is a military end user or an end

user involved in activities relating to nuclear, chemical, or biological weapons or missile technology. Information provided under this

subsection may be submitted in classified form if necessary.

(c) COVERED COUNTRIES.—For purposes of subsection (b), the

countries specified in this subsection are—

(1) the countries listed as ‘‘Computer Tier 3’’ eligible countries in section 740.7(d) of title 15 of the Code of Federal Regulations, as in effect on June 10, 1997; and

(2) the countries listed in section 740.7(e) of title 15 of the

Code of Federal Regulations, as in effect on June 10, 1997.

SEC. 1213. ø50 U.S.C. App. 2404 note¿ POST-SHIPMENT VERIFICATION OF

EXPORT OF HIGH PERFORMANCE COMPUTERS.

(a) REQUIRED POST-SHIPMENT VERIFICATION.—The Secretary of

Commerce shall conduct post-shipment verification of each digital

computer with a composite theoretical performance of more than

2,000 millions of theoretical operations per second (MTOPS) that is

exported from the United States, on or after the date of the enactment of this Act, to a country specified in subsection (b).

(b) COVERED COUNTRIES.—For purposes of subsection (a), the

countries specified in this subsection are the countries listed as

‘‘Computer Tier 3’’ eligible countries in section 740.7 of title 15 of

the Code of Federal Regulations, as in effect on June 10, 1997, subject to modification by the President under section 1211(e).

(c) ANNUAL REPORT.—The Secretary of Commerce shall submit

to the congressional committees specified in section 1215 an annual

report on the results of post-shipment verifications conducted

under this section during the preceding year. Each such report

shall include a list of all such items exported from the United
Sec. 1214 COMPUTER EXPORT CONTROLS 428

States to such countries during the previous year and, with respect

to each such export, the following:

(1) The destination country.

(2) The date of export.

(3) The intended end use and intended end user.

(4) The results of the post-shipment verification.

(d) EXPLANATION WHEN VERIFICATION NOT CONDUCTED.—If a

post-shipment verification has not been conducted in accordance

with subsection (a) with respect to any such export during the period covered by a report, the Secretary shall include in the report

for that period a detailed explanation of the reasons why such a

post-shipment verification was not conducted.

(e) ADJUSTMENT OF PERFORMANCE LEVELS.—Whenever a new

composite theoretical performance level is established under section

1211(d), that level shall apply for purposes of subsection (a) of this

section in lieu of the level set forth in subsection (a).

SEC. 1214. ø50 U.S.C. App. 2404 note¿ GAO STUDY ON CERTAIN COMPUTERS; END USER INFORMATION ASSISTANCE.

(a) IN GENERAL.—The Comptroller General of the United

States shall submit to the congressional committees specified in

section 1215 a study of the national security risks relating to the

sale of computers with a composite theoretical performance of between 2,000 and 7,000 millions of theoretical operations per second

(MTOPS) to end users in countries specified in subsection (c). The

study shall also analyze any foreign availability of computers described in the preceding sentence and the impact of such sales on

United States exporters.

(b) END USER INFORMATION ASSISTANCE TO EXPORTERS.—The

Secretary of Commerce shall establish a procedure by which exporters may seek information on questionable end users in countries specified in subsection (c) who are seeking to obtain computers described in subsection (a).

(c) COVERED COUNTRIES.—For purposes of subsections (a) and

(b), the countries specified in this subsection are the countries listed as ‘‘Computer Tier 3’’ eligible countries in section 740.7(d) of

title 15 of the Code of Federal Regulations, as in effect on June 10,

1997.

SEC. 1215. ø50 U.S.C. App. 2404 note¿ CONGRESSIONAL COMMITTEES.

For purposes of sections 1211(d), 1212(a), 1213(c), and 1214(a)

the congressional committees specified in those sections are the following:

(1) The Committee on Banking, Housing, and Urban Affairs and the Committee on Armed Services of the Senate.

(2) The Committee on International Relations and the

Committee on Armed Services of the House of Representatives.
429

d. Satellite Export Controls

(Subtitle B of title XV of the Strom Thurmond National Defense Authorization Act

for Fiscal Year 1999 (Public Law 105–261))

Subtitle B—Satellite Export Controls

SEC. 1511. ø22 U.S.C. 2778 note¿ SENSE OF CONGRESS.

It is the sense of Congress that—

(1) United States business interests must not be placed

above United States national security interests;

(2) United States foreign policy and the policies of the

United States regarding commercial relations with other countries should affirm the importance of observing and adhering

to the Missile Technology Control Regime (MTCR);

(3) the United States should encourage universal observance of the Guidelines to the Missile Technology Control Regime;

(4) the exportation or transfer of advanced communication

satellites and related technologies from United States sources

to foreign recipients should not increase the risks to the national security of the United States;

(5) due to the military sensitivity of the technologies involved, it is in the national security interests of the United

States that United States satellites and related items be subject to the same export controls that apply under United States

law and practices to munitions;

(6) the United States should not issue any blanket waiver

of the suspensions contained in section 902 of the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991 (Public

Law 101–246), regarding the export of satellites of United

States origin intended for launch from a launch vehicle owned

by the People’s Republic of China;

(7) the United States should pursue policies that protect

and enhance the United States space launch industry; and

(8) the United States should not export to the People’s Republic of China missile equipment or technology that would improve the missile or space launch capabilities of the People’s

Republic of China.

SEC. 1512. ø22 U.S.C. 2778 note¿ CERTIFICATION OF EXPORTS OF MISSILE EQUIPMENT OR TECHNOLOGY TO CHINA.

(a) CERTIFICATION.—The President shall certify to the Congress

at least 15 days in advance of any export to the People’s Republic

of China of missile equipment or technology (as defined in section

74 of the Arms Export Control Act (22 U.S.C. 2797c)) that—

(1) such export is not detrimental to the United States

space launch industry; and
Sec. 1513 SATELLITE EXPORT CONTROLS 430

(2) the missile equipment or technology, including any indirect technical benefit that could be derived from such export,

will not measurably improve the missile or space launch capabilities of the People’s Republic of China.

(b) EXCEPTION.—The certification requirement contained in

subsection (a) shall not apply to the export of inertial reference

units and components in manned civilian aircraft or supplied as

spare or replacement parts for such aircraft.

SEC. 1513. ø22 U.S.C. 2778 note¿ SATELLITE CONTROLS UNDER THE

UNITED STATES MUNITIONS LIST.

(a) CONTROL OF SATELLITES ON THE UNITED STATES MUNITIONS

LIST.—Notwithstanding any other provision of law, all satellites

and related items that are on the Commerce Control List of dualuse items in the Export Administration Regulations (15 CFR part

730 et seq.) on the date of the enactment of this Act shall be transferred to the United States Munitions List and controlled under

section 38 of the Arms Export Control Act (22 U.S.C. 2778).

(b) DEFENSE TRADE CONTROLS REGISTRATION FEES.—[Omitted—Amendments]

(c) EFFECTIVE DATE.—(1) Subsection (a) shall take effect on

March 15, 1999, and shall not apply to any export license issued

before such effective date or to any export license application made

under the Export Administration Regulations before such effective

date.

(2) The amendments made by subsection (b) shall be effective

as of October 1, 1998.

(d) REPORT.—Not later than January 1, 1999, the Secretary of

State, in consultation with the Secretary of Defense and the Secretary of Commerce, shall submit to Congress a report containing—

(1) a detailed description of the plans of the Department

of State to implement the requirements of this section, including any organizational changes that are required and any Executive orders or regulations that may be required;

(2) an identification and explanation of any steps that

should be taken to improve the license review process for exports of the satellites and related items described in subsection

(a), including measures to shorten the timelines for license application reviews, and any measures relating to the transparency of the license review process and dispute resolution

procedures;

(3) an evaluation of the adequacy of resources available to

the Department of State, including fiscal and personnel resources, to carry out the additional activities required by this

section; and

(4) any recommendations for additional actions, including

possible legislation, to improve the export licensing process

under the Arms Export Control Act for the satellites and related items described in subsection (a).

SEC. 1514. ø22 U.S.C. 2778 note¿ NATIONAL SECURITY CONTROLS ON

SATELLITE EXPORT LICENSING.

(a) ACTIONS BY THE PRESIDENT.—Notwithstanding any other

provision of law, the President shall take such actions as are necessary to implement the following requirements for improving na-
431 Sec. 1514 SATELLITE EXPORT CONTROLS

tional security controls in the export licensing of satellites and related items:

(1) MANDATORY TECHNOLOGY CONTROL PLANS.—All export

licenses shall require a technology transfer control plan approved by the Secretary of Defense and an encryption technology transfer control plan approved by the Director of the

National Security Agency.

(2) MANDATORY MONITORS AND REIMBURSEMENT.— (A) MONITORING OF PROPOSED FOREIGN LAUNCH OF

SATELLITES.—In any case in which a license is approved

for the export of a satellite or related items for launch in

a foreign country, the Secretary of Defense shall monitor

all aspects of the launch in order to ensure that no unauthorized transfer of technology occurs, including technical

assistance and technical data. The costs of such monitoring

services shall be fully reimbursed to the Department of

Defense by the person or entity receiving such services. All

reimbursements received under this subparagraph shall be

credited to current appropriations available for the payment of the costs incurred in providing such services.

(B) CONTENTS OF MONITORING.—The monitoring under

subparagraph (A) shall cover, but not be limited to—

(i) technical discussions and activities, including

the design, development, operation, maintenance,

modification, and repair of satellites, satellite components, missiles, other equipment, launch facilities, and

launch vehicles;

(ii) satellite processing and launch activities, including launch preparation, satellite transportation,

integration of the satellite with the launch vehicle,

testing and checkout prior to launch, satellite launch,

and return of equipment to the United States;

(iii) activities relating to launch failure, delay, or

cancellation, including post-launch failure investigations; and

(iv) all other aspects of the launch.

(3) MANDATORY LICENSES FOR CRASH-INVESTIGATIONS.—In

the event of the failure of a launch from a foreign country of

a satellite of United States origin—

(A) the activities of United States persons or entities

in connection with any subsequent investigation of the failure are subject to the controls established under section 38

of the Arms Export Control Act, including requirements for

licenses issued by the Secretary of State for participation

in that investigation;

(B) officials of the Department of Defense shall monitor all activities associated with the investigation to insure against unauthorized transfer of technical data or

services; and

(C) the Secretary of Defense shall establish and implement a technology transfer control plan for the conduct of

the investigation to prevent the transfer of information

that could be used by the foreign country to improve its

missile or space launch capabilities.
Sec. 1515 SATELLITE EXPORT CONTROLS 432

(4) MANDATORY NOTIFICATION AND CERTIFICATION.—All

technology transfer control plans for satellites or related items

shall require any United States person or entity involved in

the export of a satellite of United States origin or related items

to notify the Department of Defense in advance of all meetings

and interactions with any foreign person or entity providing

launch services and require the United States person or entity

to certify after the launch that it has complied with this notification requirement.

(5) MANDATORY INTELLIGENCE COMMUNITY REVIEW.—The

Secretary of Commerce and the Secretary of State shall provide to the Secretary of Defense and the Director of Central Intelligence copies of all export license applications and technical

assistance agreements submitted for approval in connection

with launches in foreign countries of satellites to verify the legitimacy of the stated end-user or end-users.

(6) MANDATORY SHARING OF APPROVED LICENSES AND

AGREEMENTS.—The Secretary of State shall provide copies of

all approved export licenses and technical assistance agreements associated with launches in foreign countries of satellites to the Secretaries of Defense and Energy, the Director

of Central Intelligence, and the Director of the Arms Control

and Disarmament Agency.

(7) MANDATORY NOTIFICATION TO CONGRESS ON LICENSES.—

Upon issuing a license for the export of a satellite or related

items for launch in a foreign country, the head of the department or agency issuing the license shall so notify Congress.

(8) MANDATORY REPORTING ON MONITORING ACTIVITIES.—

The Secretary of Defense shall provide to Congress an annual

report on the monitoring of all launches in foreign countries of

satellites of United States origin.

(9) ESTABLISHING SAFEGUARDS PROGRAM.—The Secretary of

Defense shall establish a program for recruiting, training, and

maintaining a staff dedicated to monitoring launches in foreign

countries of satellites and related items of United States origin.

(b) EXCEPTION.—This section shall not apply to the export of

a satellite or related items for launch in, or by nationals of, a country that is a member of the North Atlantic Treaty Organization or

that is a major non-NATO ally of the United States.

(c) EFFECTIVE DATE.—The President shall take the actions required by subsection (a) not later than 45 days after the date of the

enactment of this Act.

SEC. 1515. ø22 U.S.C. 2778 note¿ REPORT ON EXPORT OF SATELLITES

FOR LAUNCH BY PEOPLE’S REPUBLIC OF CHINA.

(a) REQUIREMENT FOR REPORT.—Each report to Congress submitted pursuant to subsection (b) of section 902 of the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991 (22 U.S.C.

2151 note; Public Law 101–246) to waive the restrictions contained

in subsection (a) of that section on the export to the People’s Republic of China of any satellite of United States origin or related

items shall be accompanied by a detailed justification setting forth

the following:
433 Sec. 1515 SATELLITE EXPORT CONTROLS

(1) A detailed description of all militarily sensitive characteristics integrated within, or associated with, the satellite.

(2) An estimate of the number of United States civilian

contract personnel expected to be needed in country to carry

out the proposed satellite launch.

(3)(A) A detailed description of the United States Government’s plan to monitor the proposed satellite launch to ensure

that no unauthorized transfer of technology occurs, together

with an estimate of the number of officers and employees of

the United States that are expected to be needed in country to

carry out monitoring of the proposed satellite launch; and

(B) the estimated cost to the Department of Defense of

monitoring the proposed satellite launch and the amount of

such cost that is to be reimbursed to the department.

(4) The reasons why the proposed satellite launch is in the

national security interest of the United States.

(5) The impact of the proposed export on employment in

the United States, including the number of new jobs created in

the United States, on a State-by-State basis, as a direct result

of the proposed export.

(6) The number of existing jobs in the United States that

would be lost, on a State-by-State basis, as a direct result of

the proposed export not being licensed.

(7) The impact of the proposed export on the balance of

trade between the United States and the People’s Republic of

China and on reducing the current United States trade deficit

with the People’s Republic of China.

(8) The impact of the proposed export on the transition of

the People’s Republic of China from a nonmarket economy to

a market economy and the long-term economic benefit to the

United States.

(9) The impact of the proposed export on opening new markets to United States-made products through the purchase by

the People’s Republic of China of United States-made goods

and services not directly related to the proposed export.

(10) The impact of the proposed export on reducing acts,

policies, and practices that constitute significant trade barriers

to United States exports or foreign direct investment in the

People’s Republic of China by United States nationals.

(11) The increase that will result from the proposed export

in the overall market share of the United States for goods and

services in comparison to Japan, France, Germany, the United

Kingdom, and Russia.

(12) The impact of the proposed export on the willingness

of the People’s Republic of China to modify its commercial and

trade laws, practices, and regulations to make United Statesmade goods and services more accessible to that market.

(13) The impact of the proposed export on the willingness

of the People’s Republic of China to reduce formal and informal

trade barriers and tariffs, duties, and other fees on United

States-made goods and services entering that country.

(b) MILITARILY SENSITIVE CHARACTERISTICS DEFINED.—In this

section, the term ‘‘militarily sensitive characteristics’’ includes

antijamming capability, antennas, crosslinks, baseband processing,
Sec. 1516 SATELLITE EXPORT CONTROLS 434

encryption devices, radiation-hardened devices, propulsion systems,

pointing accuracy, kick motors, and other such characteristics as

are specified by the Secretary of Defense.

SEC. 1516. ø22 U.S.C. 2778 note¿ RELATED ITEMS DEFINED.

In this subtitle, the term ‘‘related items’’ means the satellite

fuel, ground support equipment, test equipment, payload adapter

or interface hardware, replacement parts, and non-embedded solid

propellant orbit transfer engines described in the report submitted

to Congress by the Department of State on February 6, 1998, pursuant to section 38(f ) of the Arms Export Control Act (22 U.S.C.

2778(f )).
435

e. Release of Export Information and Nuclear Export

Reporting

(Sections 1522 and 1523 of the Strom Thurmond National Defense Authorization

Act for Fiscal Year 1999 (Public Law 105–261))

SEC. 1522. ø50 U.S.C. APP. 2404 note¿ RELEASE OF EXPORT INFORMATION BY DEPARTMENT OF COMMERCE TO OTHER AGENCIES FOR PURPOSE OF NATIONAL SECURITY ASSESSMENT.

(a) RELEASE OF EXPORT INFORMATION.—The Secretary of Commerce shall, upon the written request of an official specified in subsection (c), transmit to that official any information relating to exports that is held by the Department of Commerce and is requested

by that official for the purpose of assessing national security risks.

The Secretary shall transmit such information within 10 business

days after receiving such a request.

(b) NATURE OF INFORMATION.—The information referred to in

subsection (a) includes information concerning—

(1) export licenses issued by the Department of Commerce;

(2) exports that were carried out under an export license

issued by the Department of Commerce; and

(3) exports from the United States that were carried out

without an export license.

(c) REQUESTING OFFICIALS.—The officials referred to in subsection (a) are the Secretary of State, the Secretary of Defense, the

Secretary of Energy, and the Director of Central Intelligence. Each

of those officials may delegate to any other official within their respective departments and agency the authority to request information under subsection (a).

SEC. 1523. ø42 U.S.C. 2155 note¿ NUCLEAR EXPORT REPORTING REQUIREMENT.

(a) NOTIFICATION OF CONGRESS.—The President shall notify

the Committee on Foreign Relations of the Senate and the Committee on International Relations of the House of Representatives

upon the granting of a license by the Nuclear Regulatory Commission for the export or reexport of any nuclear-related technology or

equipment, including source material, special nuclear material, or

equipment or material especially designed or prepared for the processing, use, or production of special nuclear material.

(b) APPLICABILITY.—The requirements of this section shall

apply only to an export or reexport to a country that—

(1) the President has determined is a country that has detonated a nuclear explosive device; and

(2) is not a member of the North Atlantic Treaty Organization.

(c) CONTENT OF NOTIFICATION.—The notification required pursuant to this section shall include—
Sec. 1523 RELEASE OF EXPORT INFORMATION 436

(1) a detailed description of the articles or services to be

exported or reexported, including a brief description of the capabilities of any article to be exported or reexported;

(2) an estimate of the number of officers and employees of

the United States Government and of United States Government civilian contract personnel expected to be required in

such country to carry out the proposed export or reexport;

(3) the name of each licensee expected to provide the article or service proposed to be sold and a description from the

licensee of any offset agreements proposed to be entered into

in connection with such sale (if known on the date of transmittal of such statement);

(4) the projected delivery dates of the articles or services

to be exported or reexported; and

(5) the extent to which the recipient country in the previous two years has engaged in any of the actions specified in

subparagraph (A), (B), or (C) of section 129(2) of the Atomic

Energy Act of 1954.
437

f. Proliferation and Export Control Provisions of Public Law

106–65

(Title XIV of the National Defense Authorization Act for Fiscal Year 2000)

TITLE XIV—PROLIFERATION AND EXPORT CONTROLS

* * * * * * *

SEC. 1402. ø22 U.S.C. 2778 note¿ ANNUAL REPORT ON TRANSFERS OF

MILITARILY SENSITIVE TECHNOLOGY TO COUNTRIES

AND ENTITIES OF CONCERN.

(a) ANNUAL REPORT.—Not later than March 30 of each year beginning in the year 2000 and ending in the year 2007, the President shall transmit to Congress a report on transfers to countries

and entities of concern during the preceding calendar year of the

most significant categories of United States technologies and technical information with potential military applications.

(b) CONTENTS OF REPORT.—The report required by subsection

(a) shall include, at a minimum, the following:

(1) An assessment by the Director of Central Intelligence

of efforts by countries and entities of concern to acquire technologies and technical information referred to in subsection (a)

during the preceding calendar year.

(2) An assessment by the Secretary of Defense, in consultation with the Joint Chiefs of Staff and the Director of Central

Intelligence, of the cumulative impact of licenses granted by

the United States for exports of technologies and technical information referred to in subsection (a) to countries and entities

of concern during the preceding 5-calendar year period on—

(A) the military capabilities of such countries and entities; and

(B) countermeasures that may be necessary to overcome the use of such technologies and technical information.

(3) An audit by the Inspectors General of the Departments

of Defense, State, Commerce, and Energy, in consultation with

the Director of Central Intelligence and the Director of the

Federal Bureau of Investigation, of the policies and procedures

of the United States Government with respect to the export of

technologies and technical information referred to in subsection

(a) to countries and entities of concern.

(4) The status of the implementation or other disposition

of recommendations included in reports of audits by Inspectors

General that have been set forth in a previous annual report

under this section pursuant to paragraph (3).

(c) ADDITIONAL REQUIREMENT FOR FIRST REPORT.—The first

annual report required by subsection (a) shall include an assessment by the Inspectors General of the Departments of State, Defense, Commerce, and the Treasury and the Inspector General of
Sec. 1403 PROLIFERATION AND EXPORT CONTROLS 438

the Central Intelligence Agency of the adequacy of current export

controls and counterintelligence measures to protect against the acquisition by countries and entities of concern of United States technology and technical information referred to in subsection (a).

(d) SUPPORT OF OTHER AGENCIES.—Upon the request of the officials responsible for preparing the assessments required by subsection (b), the heads of other departments and agencies shall

make available to those officials all information necessary to carry

out the requirements of this section.

(e) CLASSIFIED AND UNCLASSIFIED REPORTS.—Each report required by this section shall be submitted in classified form and unclassified form.

(f) DEFINITION.—As used in this section, the term ‘‘countries

and entities of concern’’ means—

(1) any country the government of which the Secretary of

State has determined, for purposes of section 6(j) of the Export

Administration Act of 1979 or other applicable law, to have repeatedly provided support for acts of international terrorism;

(2) any country that—

(A) has detonated a nuclear explosive device (as defined in section 830(4) of the Nuclear Proliferation Prevention Act of 1994 (22 U.S.C. 6305(4))); and

(B) is not a member of the North Atlantic Treaty Organization; and

(3) any entity that—

(A) is engaged in international terrorism or activities

in preparation thereof; or

(B) is directed or controlled by the government of a

country described in paragraph (1) or (2).

SEC. 1403. ø22 U.S.C. 2778 note¿ RESOURCES FOR EXPORT LICENSE

FUNCTIONS.

(a) OFFICE OF DEFENSE TRADE CONTROLS.— (1) IN GENERAL.—The Secretary of State shall take the

necessary steps to ensure that, in any fiscal year, adequate resources are allocated to the functions of the Office of Defense

Trade Controls of the Department of State relating to the review and processing of export license applications so as to ensure that those functions are performed in a thorough and

timely manner.

(2) AVAILABILITY OF EXISTING APPROPRIATIONS.—The Secretary of State shall take the necessary steps to ensure that

those funds made available under the heading ‘‘Administration

of Foreign Affairs, Diplomatic and Consular Programs’’ in title

IV of the Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations Act, 1999, as

contained in the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (Public Law 105–277) are

made available, upon the enactment of this Act, to the Office

of Defense Trade Controls of the Department of State to carry

out the purposes of the Office.

(b) DEFENSE THREAT REDUCTION AGENCY.—The Secretary of

Defense shall take the necessary steps to ensure that, in any fiscal

year, adequate resources are allocated to the functions of the Defense Threat Reduction Agency of the Department of Defense relat-
439 Sec. 1405 PROLIFERATION AND EXPORT CONTROLS

ing to the review of export license applications so as to ensure that

those functions are performed in a thorough and timely manner.

(c) UPDATING OF STATE DEPARTMENT REPORT.—Not later than

March 1, 2000, the Secretary of State, in consultation with the Secretary of Defense and the Secretary of Commerce, shall transmit

to Congress a report updating the information reported to Congress

under section 1513(d)(3) of the Strom Thurmond National Defense

Authorization Act for Fiscal Year 1999 (22 U.S.C. 2778 note).

SEC. 1404. ø22 U.S.C. 2778 note¿ SECURITY IN CONNECTION WITH SATELLITE EXPORT LICENSING.

As a condition of the export license for any satellite to be

launched in a country subject to section 1514 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (22

U.S.C. 2778 note), the Secretary of State shall require the following:

(1) That the technology transfer control plan required by

section 1514(a)(1) of the Strom Thurmond National Defense

Authorization Act for Fiscal Year 1999 (22 U.S.C. 2778 note)

be prepared by the Department of Defense and the licensee,

and that the plan set forth enhanced security arrangements for

the launch of the satellite, both before and during launch operations.

(2) That each person providing security for the launch of

that satellite—

(A) report directly to the launch monitor with regard

to issues relevant to the technology transfer control plan;

(B) have received appropriate training in the International Trafficking in Arms Regulations (hereafter in this

title referred to as ‘‘ITAR’’).

(C) have significant experience and expertise with satellite launches; and

(D) have been investigated in a manner at least as

comprehensive as the investigation required for the

issuance of a security clearance at the level designated as

‘‘Secret’’.

(3) That the number of such persons providing security for

the launch of the satellite shall be sufficient to maintain 24-

hour security of the satellite and related launch vehicle and

other sensitive technology.

(4) That the licensee agree to reimburse the Department

of Defense for all costs associated with the provision of security

for the launch of the satellite.

SEC. 1405. ø22 U.S.C. 2778 note¿ REPORTING OF TECHNOLOGY TRANSMITTED TO PEOPLE’S REPUBLIC OF CHINA AND OF FOREIGN LAUNCH SECURITY VIOLATIONS.

(a) MONITORING OF INFORMATION.—The Secretary of Defense

shall require that space launch monitors of the Department of Defense assigned to monitor launches in the People’s Republic of

China maintain records of all information authorized to be transmitted to the People’s Republic of China with regard to each space

launch that the monitors are responsible for monitoring, including

copies of any documents authorized for such transmission, and reports on launch-related activities.
Sec. 1406 PROLIFERATION AND EXPORT CONTROLS 440

(b) TRANSMISSION TO OTHER AGENCIES.—The Secretary of Defense shall ensure that records under subsection (a) are transmitted on a current basis to appropriate elements of the Department of Defense and to the Department of State, the Department

of Commerce, and the Central Intelligence Agency.

(c) RETENTION OF RECORDS.—Records described in subsection

(a) shall be retained for at least the period of the statute of limitations for violations of the Arms Export Control Act.

(d) GUIDELINES.—The Secretary of Defense shall prescribe

guidelines providing space launch monitors of the Department of

Defense with the responsibility and the ability to report serious security violations, problems, or other issues at an overseas launch

site directly to the headquarters office of the responsible Department of Defense component.

SEC. 1406. REPORT ON NATIONAL SECURITY IMPLICATIONS OF EXPORTING HIGH-PERFORMANCE COMPUTERS TO THE PEOPLE’S REPUBLIC OF CHINA.

(a) REVIEW.—The President, in consultation with the Secretary

of Defense and the Secretary of Energy, shall conduct a comprehensive review of the national security implications of exporting highperformance computers to the People’s Republic of China. To the

extent that such testing has not already been conducted by the

Government, the President, as part of the review, shall conduct empirical testing of the extent to which national security-related operations can be performed using clustered, massively-parallel processing or other combinations of computers.

(b) REPORT.—The President shall submit to the Committee on

Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on the results of the

review conducted under subsection (a). The report shall be submitted not later than 6 months after the date of the enactment of

this Act in classified and unclassified form and shall be updated

not later than February 1 of each of the years 2001 through 2004.

SEC. 1407. END-USE VERIFICATION FOR USE BY PEOPLE’S REPUBLIC

OF CHINA OF HIGH-PERFORMANCE COMPUTERS.

(a) REVISED HPC VERIFICATION SYSTEM.—The President shall

seek to enter into an agreement with the People’s Republic of

China to revise the existing verification system with the People’s

Republic of China with respect to end-use verification for high-performance computers exported or to be exported to the People’s Republic of China so as to provide for an open and transparent system providing for effective end-use verification for such computers.

The President shall transmit a copy of any such agreement to Congress.

(b) DEFINITION.—As used in this section and section 1406, the

term ‘‘high-performance computer’’ means a computer which, by

virtue of its composite theoretical performance level, would be subject to section 1211 of the National Defense Authorization Act for

Fiscal Year 1998 (50 U.S.C. App. 2404 note).

(c) ADJUSTMENT OF COMPOSITE THEORETICAL PERFORMANCE

LEVELS FOR POST-SHIPMENT VERIFICATION.—[Omitted-Amendment]
441 Sec. 1409 PROLIFERATION AND EXPORT CONTROLS

SEC. 1408. ø22 U.S.C. 2778 note¿ ENHANCED MULTILATERAL EXPORT

CONTROLS.

(a) NEW INTERNATIONAL CONTROLS.—The President shall seek

to establish new enhanced international controls on technology

transfers that threaten international peace and United States national security.

(b) IMPROVED SHARING OF INFORMATION.—The President shall

take appropriate actions to improve the sharing of information by

nations that are major exporters of technology so that the United

States can track movements of technology covered by the

Wassenaar Arrangement and enforce technology controls and re-export requirements for such technology.

(c) DEFINITION.—As used in this section, the term ‘‘Wassenaar

Arrangement’’ means the multilateral export control regime covering conventional armaments and sensitive dual-use goods and

technologies that was agreed to by 33 co-founding countries in July

1996 and began operation in September 1996.

SEC. 1409. ø22 U.S.C. 2778 note¿ ENHANCEMENT OF ACTIVITIES OF DEFENSE THREAT REDUCTION AGENCY.

(a) IN GENERAL.—Not later than 180 days after the date of the

enactment of this Act, the Secretary of Defense shall prescribe regulations to—

(1) authorize the personnel of the Defense Threat Reduction Agency (DTRA) who monitor satellite launch campaigns

overseas to suspend such campaigns at any time if the suspension is required for purposes of the national security of the

United States;

(2) ensure that persons assigned as space launch campaign

monitors are provided sufficient training and have adequate

experience in the regulations prescribed by the Secretary of

State known as the ITAR and have significant experience and

expertise with satellite technology, launch vehicle technology,

and launch operations technology;

(3) ensure that adequate numbers of such monitors are assigned to space launch campaigns so that 24-hour, 7-day per

week coverage is provided;

(4) take steps to ensure, to the maximum extent possible,

the continuity of service by monitors for the entire space

launch campaign period (from satellite marketing to launch

and, if necessary, completion of a launch failure analysis);

(5) adopt measures designed to make service as a space

launch campaign monitor an attractive career opportunity;

(6) allocate funds and other resources to the Agency at levels sufficient to prevent any shortfalls in the number of such

personnel;

(7) establish mechanisms in accordance with the provisions

of section 1514(a)(2)(A) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Public Law 105–

261; 112 Stat. 2175; 22 U.S.C. 2778 note) that provide for—

(A) the payment to the Department of Defense by the

person or entity receiving the launch monitoring services

concerned, before the beginning of a fiscal year, of an

amount equal to the amount estimated to be required by
Sec. 1409 PROLIFERATION AND EXPORT CONTROLS 442

the Department to monitor the launch campaigns during

that fiscal year;

(B) the reimbursement of the Department of Defense,

at the end of each fiscal year, for amounts expended by the

Department in monitoring the launch campaigns in excess

of the amount provided under subparagraph (A); and

(C) the reimbursement of the person or entity receiving the launch monitoring services if the amount provided

under subparagraph (A) exceeds the amount actually expended by the Department of Defense in monitoring the

launch campaigns;

(8) review and improve guidelines on the scope of permissible discussions with foreign persons regarding technology and

technical information, including the technology and technical

information that should not be included in such discussions;

(9) provide, in conjunction with other Federal agencies, on

at least an annual basis, briefings to the officers and employees of United States commercial satellite entities on United

States export license standards, guidelines, and restrictions,

and encourage such officers and employees to participate in

such briefings;

(10) establish a system for—

(A) the preparation and filing by personnel of the

Agency who monitor satellite launch campaigns overseas

of detailed reports of all relevant activities observed by

such personnel in the course of monitoring such campaigns;

(B) the systematic archiving of reports filed under subparagraph (A); and

(C) the preservation of such reports in accordance with

applicable laws; and

(11) establish a counterintelligence program within the

Agency as part of its satellite launch monitoring program.

(b) ANNUAL REPORT ON IMPLEMENTATION OF SATELLITE TECHNOLOGY SAFEGUARDS.—(1) The Secretary of Defense and the Secretary of State shall each submit to Congress each year, as part of

the annual report for that year under section 1514(a)(8) of the

Strom Thurmond National Defense Authorization Act for Fiscal

Year 1999, the following:

(A) A summary of the satellite launch campaigns and related activities monitored by the Defense Threat Reduction

Agency during the preceding fiscal year.

(B) A description of any license infractions or violations

that may have occurred during such campaigns and activities.

(C) A description of the personnel, funds, and other resources dedicated to the satellite launch monitoring program of

the Agency during that fiscal year.

(D) An assessment of the record of United States satellite

makers in cooperating with Agency monitors, and in complying

with United States export control laws, during that fiscal year.

(2) Each report under paragraph (1) shall be submitted in classified form and unclassified form.
443 Sec. 1411 PROLIFERATION AND EXPORT CONTROLS

SEC. 1410. ø22 U.S.C. 2778 note¿ TIMELY NOTIFICATION OF LICENSING

DECISIONS BY THE DEPARTMENT OF STATE.

Not later than 180 days after the date of the enactment of this

Act, the Secretary of State shall prescribe regulations to provide

timely notice to the manufacturer of a commercial satellite of

United States origin of the final determination of the decision on

the application for a license involving the overseas launch of such

satellite.

SEC. 1411. ø22 U.S.C. 2778 note¿ ENHANCED INTELLIGENCE CONSULTATION ON SATELLITE LICENSE APPLICATIONS.

(a) CONSULTATION DURING REVIEW OF APPLICATIONS.—The

Secretary of State and Secretary of Defense, as appropriate, shall

consult with the Director of Central Intelligence during the review

of any application for a license involving the overseas launch of a

commercial satellite of United States origin. The purpose of the

consultation is to assure that the launch of the satellite, if the license is approved, will meet the requirements necessary to protect

the national security interests of the United States.

(b) ADVISORY GROUP.—(1) The Director of Central Intelligence

shall establish within the intelligence community an advisory

group to provide information and analysis to Congress, and to appropriate departments and agencies of the Federal Government, on

the national security implications of granting licenses involving the

overseas launch of commercial satellites of United States origin.

(2) The advisory group shall include technically-qualified representatives of the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, the National Air Intelligence Center, and the Department of State Bureau of Intelligence and Research and representatives of other elements of the

intelligence community with appropriate expertise.

(3) In addition to the duties under paragraph (1), the advisory

group shall—

(A) review, on a continuing basis, information relating to

transfers of satellite, launch vehicle, or other technology or

knowledge with respect to the course of the overseas launch of

commercial satellites of United States origin; and

(B) analyze the potential impact of such transfers on the

space and military systems, programs, or activities of foreign

countries.

(4) The Director of the Nonproliferation Center of the Central

Intelligence Agency shall serve as chairman of the advisory group.

(5)(A) The advisory group shall, upon request (but not less

often than annually), submit reports on the matters referred to in

paragraphs (1) and (3) to the appropriate committees of Congress

and to appropriate departments and agencies of the Federal Government.

(B) The first annual report under subparagraph (A) shall be

submitted not later than one year after the date of the enactment

of this Act.

(c) INTELLIGENCE COMMUNITY DEFINED.—In this section, the

term ‘‘intelligence community’’ has the meaning given that term in

section 3(4) of the National Security Act of 1947 (50 U.S.C.

401a(4)).
Sec. 1412 PROLIFERATION AND EXPORT CONTROLS 444

SEC. 1412. ø22 U.S.C. 2278 note¿ INVESTIGATIONS OF VIOLATIONS OF

EXPORT CONTROLS BY UNITED STATES SATELLITE MANUFACTURERS.

(a) NOTICE TO CONGRESS OF INVESTIGATIONS.—The President

shall promptly notify the appropriate committees of Congress

whenever an investigation is undertaken by the Department of

Justice of—

(1) an alleged violation of United States export control

laws in connection with a commercial satellite of United States

origin; or

(2) an alleged violation of United States export control

laws in connection with an item controlled under section 38 of

the Arms Export Control Act (22 U.S.C. 2778) that is likely to

cause significant harm or damage to the national security interests of the United States.

(b) NOTICE TO CONGRESS OF CERTAIN EXPORT WAIVERS.—The

President shall promptly notify the appropriate committees of Congress whenever an export waiver pursuant to section 902 of the

Foreign Relations Authorization Act, Fiscal Years 1990 and 1991

(22 U.S.C. 2151 note) is granted on behalf of any United States

person that is the subject of an investigation described in subsection (a). The notice shall include a justification for the waiver.

(c) EXCEPTION.—The requirements in subsections (a) and (b)

shall not apply if the President determines that notification of the

appropriate committees of Congress under such subsections would

jeopardize an on-going criminal investigation. If the President

makes such a determination, the President shall provide written

notification of such determination to the Speaker of the House of

Representatives, the majority leader of the Senate, the minority

leader of the House of Representatives, and the minority leader of

the Senate. The notification shall include a justification for the determination.

(d) IDENTIFICATION OF PERSONS SUBJECT TO INVESTIGATION.—

The Secretary of State and the Attorney General shall develop appropriate mechanisms to identify, for the purposes of processing export licenses for commercial satellites, persons who are the subject

of an investigation described in subsection (a).

(e) PROTECTION OF CLASSIFIED AND OTHER SENSITIVE INFORMATION.—The appropriate committees of Congress shall ensure that

appropriate procedures are in place to protect from unauthorized

disclosure classified information, information relating to intelligence sources and methods, and sensitive law enforcement information that is furnished to those committees pursuant to this section.

(f) STATUTORY CONSTRUCTION.—Nothing in this section shall

be construed to modify or supersede any other requirement to report information on intelligence activities to Congress, including

the requirement under section 501 of the National Security Act of

1947 (50 U.S.C. 413).

(g) DEFINITIONS.—As used in this section:

(1) The term ‘‘appropriate committees of Congress’’ means

the following:
445 Sec. 1412 PROLIFERATION AND EXPORT CONTROLS

(A) The Committee on Armed Services, the Committee

on Foreign Relations, and the Select Committee on Intelligence of the Senate.

(B) The Committee on Armed Services, the Committee

on International Relations, and the Permanent Select

Committee on Intelligence of the House of Representatives.

(2) The term ‘‘United States person’’ means any United

States resident or national (other than an individual resident

outside the United States and employed by other than a

United States person), any domestic concern (including any

permanent domestic establishment of any foreign concern), and

any foreign subsidiary or affiliate (including any permanent

foreign establishment) of any domestic concern which is controlled in fact by such domestic concern, as determined under

regulations of the President.
446

g. Review of Export Protections for Military Superiority

Resources

(Section 1211 of the National Defense Authorization Act for Fiscal Year 2004 (Public

Law 108–136, approved Nov. 24, 2003))

SEC. 1211. ø50 U.S.C. App. 2404 note¿ REVIEW OF EXPORT PROTECTIONS

FOR MILITARY SUPERIORITY RESOURCES.

(a) REVIEW REQUIRED.—The Secretary of Defense shall carry

out a review—

(1) to identify goods or technology (as defined in section 16

of the Export Administration Act of 1979 (50 U.S.C. App.

2415)) that, if obtained by a potential adversary, could significantly undermine the military superiority or qualitative military advantage of the United States over potential adversaries

or otherwise contribute to the acquisition of weapons of mass

destruction and their delivery systems; and

(2) to determine whether any of the items or technologies

identified under paragraph (1) are not currently controlled for

export purposes on either the Commerce Control List or the

United States Munitions List.

(b) ANNUAL REPORTS.—(1) Not later than March 1, 2004, the

Secretary of Defense shall submit to the Committee on Armed

Services of the Senate and the Committee on Armed Services of the

House of Representatives an unclassified report, with a classified

annex as necessary, on the results of the review under subsection

(a).

(2) For each of the next two years after the submission of the

report under paragraph (1), the Secretary shall submit to those

committees an update on that report. Such updates shall be submitted not later than March 1, 2005, and not later than March 1,

2006.
447

5. NAVY MINE COUNTERMEASURES PROGRAMS

Section 216 of the National Defense Authorization Act for

Fiscal Years 1992 and 1993

(Public Law 102–190, approved Dec. 5, 1991)

SEC. 216. MANAGEMENT OF NAVY MINE COUNTERMEASURES PROGRAMS.

(a) RESPONSIBILITY.—Subject to the authority, direction, and control of the Secretary of Defense, the Under Secretary of Defense for

Acquisition, Technology, and Logistics shall have the primary responsibility for developing and testing naval mine countermeasures

systems during fiscal years 1996 through 2008.

(b) WAIVER AUTHORITY.—The Secretary of Defense may waive

the requirement in subsection (a) with respect to any fiscal year if,

coincident with the submission of the budget for that fiscal year,

the Secretary certifies to the congressional defense committees

that—

(1) the Secretary of the Navy, in consultation with the Chief

of Naval Operations and the Commandant of the Marine

Corps, has submitted to the Secretary of Defense an updated

mine countermeasures master plan that identifies—

(A) technologies having promising potential for use for

improving mine countermeasures; and

(B) programs for advancing those technologies into production;

(2) the budget submitted to Congress pursuant to section

1105(a) of title 31, United States Code, for that fiscal year and

the future years defense program submitted to Congress in

connection with that budget pursuant to section 221 of title 10,

United States Code, propose sufficient resources for executing

the updated mine countermeasures master plan;

(3) the responsibilities of the Joint Requirements Oversight Council under subsections (b) and (d) of section 181 of

title 10, United States Code, have been carried out with respect to the updated mine countermeasures master plan, the

budget resources for mine countermeasures for that fiscal year,

and the future years defense program for mine countermeasures; and

(4) the Chairman of the Joint Chiefs of Staff has determined

that the budget resources for mine countermeasures and the

updated mine countermeasures master plan are sufficient.

(c) NOTIFICATION OF PROPOSED CHANGES.—Upon certifying

under subsection (b) with respect to a fiscal year, the Secretary

may not carry out any change to the naval mine countermeasures

master plan or the budget resources for mine countermeasures
Sec. 216 NAVY MINE COUNTERMEASURES PROGRAMS 448

with respect to that fiscal year until after the Under Secretary of

Defense for Acquisition, Technology, and Logistics submits to the

congressional defense committees a notification of the proposed

change. Such notification shall describe the nature of the proposed

change, the effect of the proposed change on the naval mine countermeasures program or related programs with respect to that fiscal year, and the effect of the proposed change on the validity of

the decision to certify under subsection (b) with respect to that fiscal year.
449

6. HIGH ENERGY LASER PROGRAMS

Subtitle D of title II of the Floyd D. Spence National Defense

Authorization Act for Fiscal Year 2001

(as enacted into law by Public Law 106–398, approved Oct. 30, 2000)

Subtitle D—High Energy Laser Programs

SEC. 241. FUNDING.

(a) FUNDING FOR FISCAL YEAR 2001.—(1) Of the amount authorized to be appropriated by section 201(4), $30,000,000 is authorized for high energy laser development.

(2) Funds available under this subsection are available to supplement the high energy laser programs of the military departments and Defense Agencies, as determined by the official designated under section 243.

(b) SENSE OF CONGRESS.—It is the sense of Congress that—

(1) the Department of Defense should establish funding for

high energy laser programs within the science and technology

programs of each of the military departments and the Ballistic

Missile Defense Organization; and

(2) the Secretary of Defense should establish a goal that

basic, applied, and advanced research in high energy laser

technology should constitute at least 4.5 percent of the total

science and technology budget of the Department of Defense by

fiscal year 2004.

SEC. 242. IMPLEMENTATION OF HIGH ENERGY LASER MASTER PLAN.

The Secretary of Defense shall implement the management

and organizational structure specified in the Department of Defense High Energy Laser Master Plan of March 24, 2000.

SEC. 243. DESIGNATION OF SENIOR OFFICIAL FOR HIGH ENERGY

LASER PROGRAMS.

(a) DESIGNATION.—The Secretary of Defense shall designate a

single senior civilian official in the Office of the Secretary of Defense (in this subtitle referred to as the ‘‘designated official’’) to

chair the High Energy Laser Technology Council called for in the

master plan referred to in section 242 and to carry out responsibilities for the programs for which funds are provided under this subtitle. The designated official shall report directly to the Under Secretary of Defense for Acquisition, Technology, and Logistics for

matters concerning the responsibilities specified in subsection (b).

(b) RESPONSIBILITIES.—The primary responsibilities of the designated official shall include the following:
Sec. 244 HIGH ENERGY LASER PROGRAMS 450

(1) Establishment of priorities for the high energy laser

programs of the military departments and the Defense Agencies.

(2) Coordination of high energy laser programs among the

military departments and the Defense Agencies.

(3) Identification of promising high energy laser technologies for which funding should be a high priority for the Department of Defense and establishment of priority for funding

among those technologies.

(4) Preparation, in coordination with the Secretaries of the

military departments and the Directors of the Defense Agencies, of a detailed technology plan to develop and mature high

energy laser technologies.

(5) Planning and programming appropriate to rapid evolution of high energy laser technology.

(6) Ensuring that high energy laser programs of each military department and the Defense Agencies are initiated and

managed effectively and are complementary with programs

managed by the other military departments and Defense Agencies and by the Office of the Secretary of Defense.

(7) Ensuring that the high energy laser programs of the

military departments and the Defense Agencies comply with

the requirements specified in subsection (c).

(c) COORDINATION AND FUNDING BALANCE.—In carrying out the

responsibilities specified in subsection (b), the designated official

shall ensure that—

(1) high energy laser programs of each military department and of the Defense Agencies are consistent with the priorities identified in the designated official’s planning and programming activities;

(2) funding provided by the Office of the Secretary of Defense for high energy laser research and development complements high energy laser programs for which funds are provided by the military departments and the Defense Agencies;

(3) programs, projects, and activities to be carried out by

the recipients of such funds are selected on the basis of appropriate competitive procedures or Department of Defense peer

review process;

(4) beginning with fiscal year 2002, funding from the Office

of the Secretary of Defense in applied research and advanced

technology development program elements is not applied to

technology efforts in support of high energy laser programs

that are not funded by a military department or the Defense

Agencies; and

(5) funding from the Office of the Secretary of Defense to

complement an applied research or advanced technology development high energy laser program for which funds are provided by one of the military departments or the Defense Agencies do not exceed the amount provided by the military department or the Defense Agencies for that program.

SEC. 244. SITE FOR JOINT TECHNOLOGY OFFICE.

(a) DEADLINE FOR SELECTION OF SITE.—The Secretary of Defense shall locate the Joint Technology Office called for in the High

Energy Laser Master Plan referred to in section 242 at a location
451 Sec. 246 HIGH ENERGY LASER PROGRAMS

determined appropriate by the Secretary not later than 30 days

after the date of the enactment of this Act.

(b) CONSIDERATION OF SITE.—In determining the location of

the Joint Technology Office, the Secretary shall, in consultation

with the Deputy Under Secretary of Defense for Science and Technology, assess—

(1) cost;

(2) accessibility between the Office and the Armed Forces

and senior Department of Defense leaders; and

(3) the advantages and disadvantages of locating the Office

at a site at which occurs a substantial proportion of the directed energy research, development, test, and evaluation activities of the Department of Defense.

SEC. 245. HIGH ENERGY LASER INFRASTRUCTURE IMPROVEMENTS.

(a) ENHANCEMENT OF INDUSTRIAL BASE.—The Secretary of Defense shall consider, evaluate, and undertake to the extent appropriate initiatives, including investment initiatives, to enhance the

industrial base to support military applications of high energy laser

technologies and systems.

(b) ENHANCEMENT OF TEST AND EVALUATION CAPABILITIES.—

The Secretary of Defense shall consider modernizing the High Energy Laser Test Facility at White Sands Missile Range, New Mexico, in order to enhance the test and evaluation capabilities of the

Department of Defense with respect to high energy laser weapons.

SEC. 246. COOPERATIVE PROGRAMS AND ACTIVITIES.

(a) MEMORANDUM OF AGREEMENT WITH NNSA.—(1) The Secretary of Defense and the Administrator for Nuclear Security of the

Department of Energy shall enter into a memorandum of agreement to conduct joint research and development on military applications of high energy lasers.

(2) The projects pursued under the memorandum of

agreement—

(A) shall be of mutual benefit to the national security programs of the Department of Defense and the National Nuclear

Security Administration of the Department of Energy;

(B) shall be prioritized jointly by officials designated to do

so by the Secretary of Defense and the Administrator; and

(C) shall be consistent with the technology plan prepared

pursuant to section 243(b)(4) and the requirements identified

in section 243(c).

(3) The costs of each project pursued under the memorandum

of agreement shall be shared equally by the Department of Defense

and the National Nuclear Security Administration.

(4) The memorandum of agreement shall provide for appropriate peer review of projects pursued under the memorandum of

agreement.

(b) EVALUATION OF OTHER COOPERATIVE PROGRAMS AND ACTIVITIES.—The Secretary of Defense shall evaluate the feasibility

and advisability of entering into cooperative programs or activities

with other Federal agencies, institutions of higher education, and

the private sector for the purpose of enhancing the programs,

projects, and activities of the Department of Defense relating to

high energy laser technologies, systems, and weapons.
Sec. 247 HIGH ENERGY LASER PROGRAMS 452

SEC. 247. TECHNOLOGY PLAN.

The designated official shall submit to the congressional defense committees by February 15, 2001, the technology plan prepared pursuant to section 243(b)(4). The report shall be submitted

in unclassified and, if necessary, classified form.

SEC. 248. ANNUAL REPORT.

Not later than February 15 of 2001, 2002, and 2003, the Secretary of Defense shall submit to the congressional defense committees a report on the high energy laser programs of the Department

of Defense. Each report shall include an assessment of the following:

(1) The adequacy of the management structure of the Department of Defense for the high energy laser programs.

(2) The funding available for the high energy laser programs.

(3) The technical progress achieved for the high energy

laser programs.

(4) The extent to which goals and objectives of the high energy laser technology plan have been met.

SEC. 249. DEFINITION.

For purposes of this subtitle, the term ‘‘high energy laser’’

means a laser that has average power in excess of one kilowatt and

that has potential weapons applications.

SEC. 250. REVIEW OF DEFENSE-WIDE DIRECTED ENERGY PROGRAMS.

(a) EVALUATION.—The Secretary of Defense, in consultation

with the Deputy Under Secretary of Defense for Science and Technology, shall evaluate expansion of the High Energy Laser management structure specified in section 242 for possible inclusion in

that management structure of science and technology programs in

related areas, including the following:

(1) High power microwave technologies.

(2) Low energy and nonlethal laser technologies.

(3) Other directed energy technologies.

(b) CONSIDERATION OF PRIOR STUDY.—The evaluation under

subsection (a) shall take into consideration the July 1999 Department of Defense study on streamlining and coordinating science

and technology and research, development, test, and evaluation

within the Department of Defense.

(c) REPORT.—The Secretary of Defense shall submit to the congressional defense committees a report on the findings of the evaluation under subsection (a). The report shall be submitted not later

than March 15, 2001.
453

D. WAR AND NATIONAL DEFENSE

[As amended through the end of the first session of the

108th Congress, December 31, 2003]

455

1The item relating to section 3 does not appear in the law.

2This section was redesignated as section 108 by section 705(a)(2) of P.L. 102–496, but this

entry in the table of contents was not repealed.

1. NATIONAL SECURITY ACT OF 1947

(Selected Provisions)

AN ACT TO promote the national security by providing for the Secretary of Defense;

for a National Military Establishment; for a Department of the Army, a Department of the Navy, and a Department of the Air Force; and for the coordination

of the activities of the National Military Establishment with other departments

and agencies of the Government concerned with the national security.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

SHORT TITLE

That ø50 U.S.C. 401 note¿ this Act may be cited as the

‘‘National Security Act of 1947’’.

TABLE OF CONTENTS

Sec. 2. Declaration of policy.

Sec. 3. Definitions. 1

TITLE I—COORDINATION FOR NATIONAL SECURITY

Sec. 101. National Security Council.

Sec. 102. Office of the Director of Central Intelligence.

Sec. 102A. Central Intelligence Agency.

Sec. 103. Responsibilities of the Director of Central Intelligence.

Sec. 104. Authorities of the Director of Central Intelligence.

Sec. 105. Responsibilities of the Secretary of Defense pertaining to the National

Foreign Intelligence Program.

Sec. 105A. Assistance to United States law enforcement agencies.

Sec. 105B. Disclosure of foreign intelligence acquired in criminal investigations; notice of criminal investigations of foreign intelligence sources.

Sec. 106. Appointment of officials responsible for intelligence-related activities.

Sec. 107. National Security Resources Board.

Sec. 108. Annual National Security Strategy Report.

Sec. 104. Annual national security strategy report. 2

Sec. 109. Annual report on intelligence.

Sec. 110. National mission of National Geospatial-Intelligence Agency.

Sec. 111. Collection tasking authority.

Sec. 112. Restrictions on intelligence sharing with the United Nations.

Sec. 113. Detail of intelligence community personnel—intelligence community

assignment program.

Sec. 114. Additional annual reports from the Director of Central Intelligence.

Sec. 114A. Annual report on improvement of financial statements for auditing purposes.

Sec. 115. Limitation on establishment or operation of diplomatic intelligence

support centers.

Sec. 116. Travel on any common carrier for certain intelligence collection personnel.

Sec. 117. POW/MIA analytic capability.

Sec. 118. Semiannual report on financial intelligence on terrorist assets.

* * * * * * *
Sec. 2 NATIONAL SECURITY ACT OF 1947 456

TITLE V—ACCOUNTABILITY FOR INTELLIGENCE ACTIVITIES

Sec. 501. General congressional oversight provisions.

Sec. 502. Reporting of intelligence activities other than covert actions.

Sec. 503. Presidential approval and reporting of covert actions.

Sec. 504. Funding of intelligence activities.

Sec. 505. Notice to Congress of certain transfers of defense articles and defense

services.

Sec. 506. Specificity of National Foreign Intelligence Program budget amounts for

counterterrorism, counterproliferation, counternarcotics, and counterintelligence.

Sec. 506A. Budget treatment of costs of acquisition of major systems by the intelligence community.

Sec. 507. Dates for submittal of various annual and semiannual reports to the congressional intelligence committees.

* * * * * * *

DECLARATION OF POLICY

SEC. 2. ø50 U.S.C. 401¿ In enacting this legislation, it is the

intent of Congress to provide a comprehensive program for the future security of the United States; to provide for the establishment

of integrated policies and procedures for the departments, agencies,

and functions of the Government relating to the national security;

to provide a Department of Defense, including the three military

Departments of the Army, the Navy (including naval aviation and

the United States Marine Corps), and the Air Force under the direction, authority, and control of the Secretary of Defense; to provide that each military department shall be separately organized

under its own Secretary and shall function under the direction, authority, and control of the Secretary of Defense; to provide for their

unified direction under civilian control of the Secretary of Defense

but not to merge these departments or services; to provide for the

establishment of unified or specified combatant commands, and a

clear and direct line of command to such commands; to eliminate

unnecessary duplication in the Department of Defense, and particularly in the field of research and engineering by vesting its

overall direction and control in the Secretary of Defense; to provide

more effective, efficient, and economical administration in the Department of Defense; to provide for the unified strategic direction

of the combatant forces, for their operation under unified command, and for their integration into an efficient team of land,

naval, and air forces but not to establish a single Chief of Staff

over the armed forces nor an overall armed forces general staff.

DEFINITIONS

SEC. 3. ø50 U.S.C. 401a¿ As used in this Act:

(1) The term ‘‘intelligence’’ includes foreign intelligence

and counterintelligence.

(2) The term ‘‘foreign intelligence’’ means information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, or foreign

persons, or international terrorist activities.

(3) The term ‘‘counterintelligence’’ means information gathered, and activities conducted, to protect against espionage,

other intelligence activities, sabotage, or assassinations conducted by or on behalf of foreign governments or elements
457 Sec. 2 NATIONAL SECURITY ACT OF 1947

thereof, foreign organizations, or foreign persons, or international terrorist activities.

(4) The term ‘‘intelligence community’’ includes—

(A) the Office of the Director of Central Intelligence,

which shall include the Office of the Deputy Director of

Central Intelligence, the National Intelligence Council (as

provided for in section 105(b)(3)), and such other offices as

the Director may designate;

(B) the Central Intelligence Agency;

(C) the National Security Agency;

(D) the Defense Intelligence Agency;

(E) the National Geospatial-Intelligence Agency;

(F) the National Reconnaissance Office;

(G) other offices within the Department of Defense for

the collection of specialized national intelligence through

reconnaissance programs;

(H) the intelligence elements of the Army, the Navy,

the Air Force, the Marine Corps, the Federal Bureau of Investigation, the Department of Energy, and the Coast

Guard;

(I) the Bureau of Intelligence and Research of the Department of State;

(J) the Office of Intelligence and Analysis of the Department of the Treasury;

(K) the elements of the Department of Homeland Security concerned with the analyses of foreign intelligence

information; and

(L) such other elements of any other department or

agency as may be designated by the President, or designated jointly by the Director of Central Intelligence and

the head of the department or agency concerned, as an element of the intelligence community.

(5) The terms ‘‘national intelligence’’ and ‘‘intelligence related to the national security’’—

(A) each refer to intelligence which pertains to the interests of more than one department or agency of the Government; and

(B) do not refer to counterintelligence or law enforcement activities conducted by the Federal Bureau of Investigation except to the extent provided for in procedures

agreed to by the Director of Central Intelligence and the

Attorney General, or otherwise as expressly provided for in

this title.

(6) The term ‘‘National Foreign Intelligence Program’’ refers to all programs, projects, and activities of the intelligence

community, as well as any other programs of the intelligence

community designated jointly by the Director of Central Intelligence and the head of a United States department or agency

or by the President. Such term does not include programs,

projects, or activities of the military departments to acquire intelligence solely for the planning and conduct of tactical military operations by United States Armed Forces.

(7) The term ‘‘congressional intelligence committees’’

means—
Sec. 101 NATIONAL SECURITY ACT OF 1947 458

1The positions of Director for Mutual Security, Chairman of the National Security Resources

Board, Chairman of the Munitions Board, and Chairman of the Research and Development

Board have been abolished by various Reorganiztion Plans. The statutory members of the National Security Council are the President, Vice President, Secretary of State, and Secretary of

Defense.

(A) the Select Committee on Intelligence of the Senate;

and

(B) the Permanent Select Committee on Intelligence of

the House of Representatives.

TITLE I—COORDINATION FOR NATIONAL SECURITY

NATIONAL SECURITY COUNCIL

SEC. 101. ø50 U.S.C. 402¿ (a) There is hereby established a

council to be known as the National Security Council (thereinafter

in this section referred to as the ‘‘Council’’).

The President of the United States shall preside over meetings

of the Council: Provided, That in his absence he may designate a

member of the Council to preside in his place.

The function of the Council shall be to advise the President

with respect to the integration of domestic, foreign, and military

policies relating to the national security so as to enable the military services and the other departments and agencies of the Government to cooperate more effectively in matters involving the national security.

The Council shall be composed of 1—

(1) the President;

(2) the Vice President;

(3) the Secretary of State;

(4) the Secretary of Defense;

(5) the Director for Mutual Security;

(6) the Chairman of the National Security Resources

Board; and

(7) The Secretaries and Under Secretaries of other executive departments and the military departments, the Chairman

of the Munitions Board, and the Chairman of the Research and

Development Board, when appointed by the President by and

with the advice and consent of the Senate, to serve at his

pleasure.

(b) In addition to performing such other functions as the President may direct, for the purpose of more effectively coordinating

the policies and functions of the departments and agencies of the

Government relating to the national security, it shall, subject to

the direction of the President, be the duty of the Council—

(1) to assess and appraise the objectives, commitments,

and risks of the United States in relation to our actual and potential military power, in the interest of national security, for

the purpose of making recommendations to the President in

connection therewith; and

(2) to consider policies on matters of common interest to

the departments and agencies of the Government concerned

with the national security, and to make recommendations to

the President in connection therewith.

(c) The Council shall have a staff to be headed by a civilian executive secretary who shall be appointed by the President, and who
459 Sec. 101 NATIONAL SECURITY ACT OF 1947

1The specification of the salary of the head of the National Security Council staff is obsolete

and has been superseded. 2The Classification Act of 1923 was repealed by the Classification Act of 1949. The Classification Act of 1949 was repealed by the law enacting title 5, United States Code (Public Law 89–

544, Sept. 6, 1966, 80 Stat. 378), and its provisions were codified as chapter 51 and chapter

53 of title 5. Section 7(b) of that Act (80 Stat. 631) provided: ‘‘A reference to a law replaced

by sections 1–6 of this Act, including a reference in a regulation, order, or other law, is deemed

to refer to the corresponding provision enacted by this Act.’’

shall receive compensation at the rate of $10,000 a year. 1 The executive secretary, subject to the direction of the Council, is hereby

authorized, subject to the civil-service laws and the Classification

Act of 1923, as amended, 2 to appoint and fix the compensation of

such personnel as may be necessary to perform such duties as may

be prescribed by the Council in connection with the performance of

its functions.

(d) The Council shall, from time to time, make such recommendations, and such other reports to the President as it deems

appropriate or as the President may require.

(e) The Chairman (or in his absence the Vice Chairman) of the

Joint Chiefs of Staff may, in his role as principal military adviser

to the National Security Council and subject to the direction of the

President, attend and participate in meetings of the National Security Council.

(f) The Director of National Drug Control Policy may, in the

role of the Director as principal adviser to the National Security

Council on national drug control policy, and subject to the direction

of the President, attend and participate in meetings of the National

Security Council.

(g) The President shall establish with the National Security

Council a board to be known as the ‘‘Board for Low Intensity Conflict’’. The principal function of the board shall be to coordinate the

policies of the United States for low intensity conflict.

(h)(1) There is established within the National Security Council a committee to be known as the Committee on Foreign Intelligence (in this subsection referred to as the ‘‘Committee’’).

(2) The Committee shall be composed of the following:

(A) The Director of Central Intelligence.

(B) The Secretary of State.

(C) The Secretary of Defense.

(D) The Assistant to the President for National Security

Affairs, who shall serve as the chairperson of the Committee.

(E) Such other members as the President may designate.

(3) The function of the Committee shall be to assist the Council

in its activities by—

(A) identifying the intelligence required to address the national security interests of the United States as specified by

the President;

(B) establishing priorities (including funding priorities)

among the programs, projects, and activities that address such

interests and requirements; and

(C) establishing policies relating to the conduct of intelligence activities of the United States, including appropriate

roles and missions for the elements of the intelligence community and appropriate targets of intelligence collection activities.

(4) In carrying out its function, the Committee shall—
Sec. 101 NATIONAL SECURITY ACT OF 1947 460

(A) conduct an annual review of the national security interests of the United States;

(B) identify on an annual basis, and at such other times

as the Council may require, the intelligence required to meet

such interests and establish an order of priority for the collection and analysis of such intelligence; and

(C) conduct an annual review of the elements of the

intelligence community in order to determine the success of

such elements in collecting, analyzing, and disseminating the

intelligence identified under subparagraph (B).

(5) The Committee shall submit each year to the Council and

to the Director of Central Intelligence a comprehensive report on

its activities during the preceding year, including its activities

under paragraphs (3) and (4).

(i)(1) There is established within the National Security Council

a committee to be known as the Committee on Transnational

Threats (in this subsection referred to as the ‘‘Committee’’).

(2) The Committee shall include the following members:

(A) The Director of Central Intelligence.

(B) The Secretary of State.

(C) The Secretary of Defense.

(D) The Attorney General.

(E) The Assistant to the President for National Security

Affairs, who shall serve as the chairperson of the Committee.

(F) Such other members as the President may designate.

(3) The function of the Committee shall be to coordinate and

direct the activities of the United States Government relating to

combatting transnational threats.

(4) In carrying out its function, the Committee shall—

(A) identify transnational threats;

(B) develop strategies to enable the United States Government to respond to transnational threats identified under subparagraph (A);

(C) monitor implementation of such strategies;

(D) make recommendations as to appropriate responses to

specific transnational threats;

(E) assist in the resolution of operational and policy

differences among Federal departments and agencies in their

responses to transnational threats;

(F) develop policies and procedures to ensure the effective

sharing of information about transnational threats among

Federal departments and agencies, including law enforcement

agencies and the elements of the intelligence community; and

(G) develop guidelines to enhance and improve the coordination of activities of Federal law enforcement agencies and

elements of the intelligence community outside the United

States with respect to transnational threats.

(5) For purposes of this subsection, the term ‘‘transnational

threat’’ means the following:

(A) Any transnational activity (including international terrorism, narcotics trafficking, the proliferation of weapons of

mass destruction and the delivery systems for such weapons,

and organized crime) that threatens the national security of

the United States.
461 Sec. 102 NATIONAL SECURITY ACT OF 1947

1So in law. Probably should be subsection (k). Section 301 of Public Law 105–292, Oct. 27,

1998, inserts a new subsection (i) at the end of section 101 of the National Security Act of 1947.

(B) Any individual or group that engages in an activity referred to in subparagraph (A).

(j) The Director of Central Intelligence (or, in the Director’s absence, the Deputy Director of Central Intelligence) may, in the performance of the Director’s duties under this Act and subject to the

direction of the President, attend and participate in meetings of the

National Security Council.

(i) 1 It is the sense of the Congress that there should be within

the staff of the National Security Council a Special Adviser to the

President on International Religious Freedom, whose position

should be comparable to that of a director within the Executive Office of the President. The Special Adviser should serve as a resource for executive branch officials, compiling and maintaining information on the facts and circumstances of violations of religious

freedom (as defined in section 3 of the International Religious Freedom Act of 1998), and making policy recommendations. The Special

Adviser should serve as liaison with the Ambassador at Large for

International Religious Freedom, the United States Commission on

International Religious Freedom, Congress and, as advisable, religious nongovernmental organizations.

OFFICE OF THE DIRECTOR OF CENTRAL INTELLIGENCE

SEC. 102. ø50 U.S.C. 403¿ (a) DIRECTOR OF CENTRAL INTELLIGENCE.—There is a Director of Central Intelligence who shall be

appointed by the President, by and with the advice and consent of

the Senate. The Director shall—

(1) serve as head of the United States intelligence

community;

(2) act as the principal adviser to the President for intelligence matters related to the national security; and

(3) serve as head of the Central Intelligence Agency.

(b) DEPUTY DIRECTORS OF CENTRAL INTELLIGENCE.—(1) There

is a Deputy Director of Central Intelligence who shall be appointed

by the President, by and with the advice and consent of the Senate.

(2) There is a Deputy Director of Central Intelligence for Community Management who shall be appointed by the President, by

and with the advice and consent of the Senate.

(3) Each Deputy Director of Central Intelligence shall have extensive national security expertise.

(c) MILITARY STATUS OF DIRECTOR AND DEPUTY DIRECTORS.—

(1)(A) Not more than one of the individuals serving in the positions

specified in subparagraph (B) may be a commissioned officer of the

Armed Forces, whether in active or retired status.

(B) The positions referred to in subparagraph (A) are the following:

(i) The Director of Central Intelligence.

(ii) The Deputy Director of Central Intelligence.

(iii) The Deputy Director of Central Intelligence for Community Management.

(2) It is the sense of Congress that, under ordinary circumstances, it is desirable that one of the individuals serving in

the positions specified in paragraph (1)(B)—
Sec. 102 NATIONAL SECURITY ACT OF 1947 462

(A) be a commissioned officer of the Armed Forces, whether in active or retired status; or

(B) have, by training or experience, an appreciation of military intelligence activities and requirements.

(3) A commissioned officer of the Armed Forces, while serving

in a position specified in paragraph (1)(B)—

(A) shall not be subject to supervision or control by the

Secretary of Defense or by any officer or employee of the Department of Defense;

(B) shall not exercise, by reason of the officer’s status as

a commissioned officer, any supervision or control with respect

to any of the military or civilian personnel of the Department

of Defense except as otherwise authorized by law; and

(C) shall not be counted against the numbers and percentages of commissioned officers of the rank and grade of such officer authorized for the military department of that officer.

(4) Except as provided in subparagraph (A) or (B) of paragraph

(3), the appointment of an officer of the Armed Forces to a position

specified in paragraph (1)(B) shall not affect the status, position,

rank, or grade of such officer in the Armed Forces, or any

emolument, perquisite, right, privilege, or benefit incident to or

arising out of any such status, position, rank, or grade.

(5) A commissioned officer of the Armed Forces on active duty

who is appointed to a position specified in paragraph (1)(B), while

serving in such position and while remaining on active duty, shall

continue to receive military pay and allowances and shall not receive the pay prescribed for such position. Funds from which such

pay and allowances are paid shall be reimbursed from funds available to the Director of Central Intelligence.

(d) DUTIES OF DEPUTY DIRECTORS.—(1)(A) The Deputy Director

of Central Intelligence shall assist the Director of Central Intelligence in carrying out the Director’s responsibilities under this

Act.

(B) The Deputy Director of Central Intelligence shall act for,

and exercise the powers of, the Director of Central Intelligence during the Director’s absence or disability or during a vacancy in the

position of the Director of Central Intelligence.

(2) The Deputy Director of Central Intelligence for Community

Management shall, subject to the direction of the Director of Central Intelligence, be responsible for the following:

(A) Directing the operations of the Community Management Staff.

(B) Through the Assistant Director of Central Intelligence

for Collection, ensuring the efficient and effective collection of

national intelligence using technical means and human

sources.

(C) Through the Assistant Director of Central Intelligence

for Analysis and Production, conducting oversight of the

analysis and production of intelligence by elements of the intelligence community.

(D) Through the Assistant Director of Central Intelligence

for Administration, performing community-wide management

functions of the intelligence community, including the management of personnel and resources.
463 Sec. 102 NATIONAL SECURITY ACT OF 1947

(3)(A) The Deputy Director of Central Intelligence takes precedence in the Office of the Director of Central Intelligence immediately after the Director of Central Intelligence.

(B) The Deputy Director of Central Intelligence for Community

Management takes precedence in the Office of the Director of Central Intelligence immediately after the Deputy Director

of Central Intelligence.

(e) OFFICE OF THE DIRECTOR OF CENTRAL INTELLIGENCE.—(1)

There is an Office of the Director of Central Intelligence. The function of the Office is to assist the Director of Central Intelligence in

carrying out the duties and responsibilities of the Director under

this Act and to carry out such other duties as may be prescribed

by law.

(2) The Office of the Director of Central Intelligence is composed of the following:

(A) The Director of Central Intelligence.

(B) The Deputy Director of Central Intelligence.

(C) The Deputy Director of Central Intelligence for Community Management.

(D) The National Intelligence Council.

(E) The Assistant Director of Central Intelligence for Collection.

(F) The Assistant Director of Central Intelligence for Analysis and Production.

(G) The Assistant Director of Central Intelligence for Administration.

(H) Such other offices and officials as may be established

by law or the Director of Central Intelligence may establish or

designate in the Office.

(3) To assist the Director in fulfilling the responsibilities of the

Director as head of the intelligence community, the Director shall

employ and utilize in the Office of the Director of Central Intelligence a professional staff having an expertise in matters relating

to such responsibilities and may establish permanent positions and

appropriate rates of pay with respect to that staff.

(4) The Office of the Director of Central Intelligence shall, for

administrative purposes, be within the Central Intelligence Agency.

(f) ASSISTANT DIRECTOR OF CENTRAL INTELLIGENCE FOR COLLECTION.—(1) To assist the Director of Central Intelligence in carrying out the Director’s responsibilities under this Act, there shall

be an Assistant Director of Central Intelligence for Collection who

shall be appointed by the President, by and with the advice and

consent of the Senate.

(2) The Assistant Director for Collection shall assist the Director of Central Intelligence in carrying out the Director’s collection

responsibilities in order to ensure the efficient and effective collection of national intelligence.

(g) ASSISTANT DIRECTOR OF CENTRAL INTELLIGENCE FOR ANALYSIS AND PRODUCTION.—(1) To assist the Director of Central Intelligence in carrying out the Director’s responsibilities under this

Act, there shall be an Assistant Director of Central Intelligence for

Analysis and Production who shall be appointed by the

President, by and with the advice and consent of the Senate.

(2) The Assistant Director for Analysis and Production shall—
Sec. 102A NATIONAL SECURITY ACT OF 1947 464

1So in original. Probably should be ‘‘national’’.

(A) oversee the analysis and production of intelligence by

the elements of the intelligence community;

(B) establish standards and priorities relating to such

analysis and production;

(C) monitor the allocation of resources for the analysis and

production of intelligence in order to identify unnecessary duplication in the analysis and production of intelligence;

(D) direct competitive analysis of analytical products having National 1 importance;

(E) identify intelligence to be collected for purposes of the

Assistant Director of Central Intelligence for Collection; and

(F) provide such additional analysis and production of intelligence as the President and the National Security Council

may require.

(h) ASSISTANT DIRECTOR OF CENTRAL INTELLIGENCE FOR ADMINISTRATION.—(1) To assist the Director of Central Intelligence in

carrying out the Director’s responsibilities under this Act, there

shall be an Assistant Director of Central Intelligence for Administration who shall be appointed by the President, by and with the

advice and consent of the Senate.

(2) The Assistant Director for Administration shall manage

such activities relating to the administration of the intelligence

community as the Director of Central Intelligence shall require.

CENTRAL INTELLIGENCE AGENCY

SEC. 102A. ø50 U.S.C. 403–1¿ There is a Central Intelligence

Agency. The function of the Agency shall be to assist the Director

of Central Intelligence in carrying out the responsibilities referred

to in paragraphs (1) through (5) of section 103(d) of this Act.

RESPONSIBILITIES OF THE DIRECTOR OF CENTRAL INTELLIGENCE

SEC. 103. ø50 U.S.C. 403–3¿ (a) PROVISION OF INTELLIGENCE.—

(1) Under the direction of the National Security Council, the Director of Central Intelligence shall be responsible for providing national intelligence—

(A) to the President;

(B) to the heads of departments and agencies of the executive branch;

(C) to the Chairman of the Joint Chiefs of Staff and senior

military commanders; and

(D) where appropriate, to the Senate and House of Representatives and the committees thereof.

(2) Such national intelligence should be timely, objective, independent of political considerations, and based upon all sources

available to the intelligence community.

(b) NATIONAL INTELLIGENCE COUNCIL.—(1)(A) There is established within the Office of the Director of Central Intelligence the

National Intelligence Council (hereafter in this section referred to

as the Council’’). The Council shall be composed of senior analysts

within the intelligence community and substantive experts from

the public and private sector, who shall be appointed by, report to,

and serve at the pleasure of, the Director of Central Intelligence.
465 Sec. 103 NATIONAL SECURITY ACT OF 1947

(B) The Director shall prescribe appropriate security requirements for personnel appointed from the private sector as a condition of service on the Council, or as contractors of the Council or

employees of such contractors, to ensure the protection of intelligence sources and methods while avoiding, wherever possible, unduly intrusive requirements which the Director considers to be unnecessary for this purpose.

(2) The Council shall—

(A) produce national intelligence estimates for the Government, including, whenever the Council considers appropriate,

alternative views held by elements of the intelligence community;

(B) evaluate community-wide collection and production of

intelligence by the intelligence community and the requirements and resources of such collection and production; and

(C) otherwise assist the Director in carrying out the responsibilities described in subsection (a).

(3) Within their respective areas of expertise and under the direction of the Director, the members of the Council shall constitute

the senior intelligence advisers of the intelligence community for

purposes of representing the views of the intelligence community

within the Government.

(4) Subject to the direction and control of the Director of Central Intelligence, the Council may carry out its responsibilities

under this subsection by contract, including contracts for substantive experts necessary to assist the Council with particular assessments under this subsection.

(5) The Director shall make available to the Council such staff

as may be necessary to permit the Council to carry out its responsibilities under this subsection and shall take appropriate measures to ensure that the Council and its staff satisfy the needs of

policymaking officials and other consumers of intelligence. The

Council shall also be readily accessible to policymaking officials

and other appropriate individuals not otherwise associated with the

intelligence community.

(6) The heads of elements within the intelligence community

shall, as appropriate, furnish such support to the Council, including the preparation of intelligence analyses, as may be required by

the Director.

(c) HEAD OF THE INTELLIGENCE COMMUNITY.—In the Director’s

capacity as head of the intelligence community, the Director shall—

(1) facilitate the development of an annual budget for intelligence and intelligence-related activities of the United

States by—

(A) developing and presenting to the President an annual budget for the National Foreign Intelligence Program;

and

(B) participating in the development by the Secretary

of Defense of the annual budgets for the Joint Military Intelligence Program and the Tactical Intelligence and Related Activities Program;

(2) establish the requirements and priorities to govern the

collection of national intelligence by elements of the intelligence community;
Sec. 104 NATIONAL SECURITY ACT OF 1947 466

(3) approve collection requirements, determine collection

priorities, and resolve conflicts in collection priorities levied on

national collection assets, except as otherwise agreed with the

Secretary of Defense pursuant to the direction of the President;

(4) promote and evaluate the utility of national intelligence

to consumers within the Government;

(5) eliminate waste and unnecessary duplication within

the intelligence community;

(6) establish requirements and priorities for foreign intelligence information to be collected under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), and

provide assistance to the Attorney General to ensure that information derived from electronic surveillance or physical

searches under that Act is disseminated so it may be used efficiently and effectively for foreign intelligence purposes, except

that the Director shall have no authority to direct, manage, or

undertake electronic surveillance or physical search operations

pursuant to that Act unless otherwise authorized by statute or

Executive order;

(7) protect intelligence sources and methods from unauthorized disclosure; and

(8) perform such other functions as the President or the

National Security Council may direct.

(d) HEAD OF THE CENTRAL INTELLIGENCE AGENCY.—In the Director’s capacity as head of the Central Intelligence Agency, the Director shall—

(1) collect intelligence through human sources and by other

appropriate means, except that the Agency shall have no police, subpoena, or law enforcement powers or internal security

functions;

(2) provide overall direction for the collection of national

intelligence through human sources by elements of the intelligence community authorized to undertake such collection

and, in coordination with other agencies of the Government

which are authorized to undertake such collection, ensure that

the most effective use is made of resources and that the risks

to the United States and those involved in such collection are

minimized;

(3) correlate and evaluate intelligence related to the national security and provide appropriate dissemination of such

intelligence;

(4) perform such additional services as are of common concern to the elements of the intelligence community, which services the Director of Central Intelligence determines can be

more efficiently accomplished centrally; and

(5) perform such other functions and duties related to intelligence affecting the national security as the President or

the National Security Council may direct.

AUTHORITIES OF THE DIRECTOR OF CENTRAL INTELLIGENCE

SEC. 104. ø50 U.S.C. 403–4¿ (a) ACCESS TO INTELLIGENCE.—To

the extent recommended by the National Security Council and approved by the President, the Director of Central Intelligence shall

have access to all intelligence related to the national security which
467 Sec. 104 NATIONAL SECURITY ACT OF 1947

is collected by any department, agency, or other entity of the

United States.

(b) APPROVAL OF BUDGETS.—The Director of Central Intelligence shall provide guidance to elements of the intelligence community for the preparation of their annual budgets and shall approve such budgets before their incorporation in the National Foreign Intelligence Program.

(c) ROLE OF DCI IN REPROGRAMMING.—No funds made available under the National Foreign Intelligence Program may be reprogrammed by any element of the intelligence community without

the prior approval of the Director of Central Intelligence except in

accordance with procedures issued by the Director. The Secretary

of Defense shall consult with the Director of Central Intelligence

before reprogramming funds made available under the Joint Military Intelligence Program.

(d) TRANSFER OF FUNDS OR PERSONNEL WITHIN THE NATIONAL

FOREIGN INTELLIGENCE PROGRAM.—(1)(A) In addition to any other

authorities available under law for such purposes, the Director of

Central Intelligence, with the approval of the Director of the Office

of Management and Budget, may transfer funds appropriated for

a program within the National Foreign Intelligence Program to another such program and, in accordance with procedures to be developed by the Director and the heads of affected departments and

agencies, may transfer personnel authorized for an element of the

intelligence community to another such element for periods up to

a year.

(B) The Director may only delegate any duty or authority given

the Director under this subsection to the Deputy Director of Central Intelligence for Community Management.

(2)(A) A transfer of funds or personnel may be made under this

subsection only if—

(i) the funds or personnel are being transferred to an activity that is a higher priority intelligence activity;

(ii) the need for funds or personnel for such activity is

based on unforeseen requirements;

(iii) the transfer does not involve a transfer of funds to the

Reserve for Contingencies of the Central Intelligence Agency;

(iv) the transfer does not involve a transfer of funds or personnel from the Federal Bureau of Investigation; and

(v) subject to subparagraph (B), the Secretary or head of

the department which contains the affected element or elements of the intelligence community does not object to such

transfer.

(B)(i) Except as provided in clause (ii), the authority to object

to a transfer under subparagraph (A)(v) may not be delegated by

the Secretary or head of the department involved.

(ii) With respect to the Department of Defense, the authority

to object to such a transfer may be delegated by the Secretary of

Defense, but only to the Deputy Secretary of Defense.

(iii) An objection to a transfer under subparagraph (A)(v) shall

have no effect unless submitted to the Director of Central Intelligence in writing.

(3) Funds transferred under this subsection shall remain available for the same period as the appropriations account to which

transferred.
Sec. 104 NATIONAL SECURITY ACT OF 1947 468

(4) Any transfer of funds under this subsection shall be carried

out in accordance with existing procedures applicable to reprogramming notifications for the appropriate congressional committees.

Any proposed transfer for which notice is given to the appropriate

congressional committees shall be accompanied by a report explaining the nature of the proposed transfer and how it satisfies the requirements of this subsection. In addition, the congressional intelligence committees shall be promptly notified of any transfer of

funds made pursuant to this subsection in any case in which the

transfer would not have otherwise required reprogramming notification under procedures in effect as of the date of the enactment

of this section.

(5) The Director shall promptly submit to the congressional intelligence committees and, in the case of the transfer of personnel

to or from the Department of Defense, the Committee on Armed

Services of the Senate and the Committee on Armed Services of the

House of Representatives, a report on any transfer of personnel

made pursuant to this subsection. The Director shall include in any

such report an explanation of the nature of the transfer and how

it satisfies the requirements of this subsection.

(e) COORDINATION WITH FOREIGN GOVERNMENTS.—Under the

direction of the National Security Council and in a manner consistent with section 207 of the Foreign Service Act of 1980 (22

U.S.C. 3927), the Director shall coordinate the relationships between elements of the intelligence community and the intelligence

or security services of foreign governments on all matters involving

intelligence related to the national security or involving intelligence

acquired through clandestine means.

(f) USE OF PERSONNEL.—The Director shall, in coordination

with the heads of departments and agencies with elements in the

intelligence community, institute policies and programs within the

intelligence community—

(1) to provide for the rotation of personnel between the elements of the intelligence community, where appropriate, and

to make such rotated service a factor to be considered for promotion to senior positions; and

(2) to consolidate, wherever possible, personnel, administrative, and security programs to reduce the overall costs of

these activities within the intelligence community.

(g) STANDARDS AND QUALIFICATIONS FOR PERFORMANCE OF INTELLIGENCE ACTIVITIES.—The Director, acting as the head of the

intelligence community, shall, in consultation with the heads of effected agencies, develop standards and qualifications for persons

engaged in the performance of intelligence activities within the intelligence community.

(h) TERMINATION OF EMPLOYMENT OF CIA EMPLOYEES.—Notwithstanding the provisions of any other law, the Director may, in

the Director’s discretion, terminate the employment of any officer

or employee of the Central Intelligence Agency whenever the Director shall deem such termination necessary or advisable in the interests of the United States. Any such termination shall not affect

the right of the officer or employee terminated to seek or accept

employment in any other department or agency of the Government

if declared eligible for such employment by the Office of Personnel

Management.
469 Sec. 105 NATIONAL SECURITY ACT OF 1947

RESPONSIBILITIES OF THE SECRETARY OF DEFENSE PERTAINING TO

THE NATIONAL FOREIGN INTELLIGENCE PROGRAM

SEC. 105. ø50 U.S.C. 403–5¿ (a) IN GENERAL.—The Secretary

of Defense, in consultation with the Director of Central Intelligence, shall—

(1) ensure that the budgets of the elements of the intelligence community within the Department of Defense are adequate to satisfy the overall intelligence needs of the Department of Defense, including the needs of the chairman of the

Joint Chiefs of Staff and the commanders of the unified and

specified commands and, wherever such elements are performing governmentwide functions, the needs of other departments and agencies;

(2) ensure appropriate implementation of the policies and

resource decisions of the Director of Central Intelligence by elements of the Department of Defense within the National Foreign Intelligence Program;

(3) ensure that the tactical intelligence activities of the Department of Defense complement and are compatible with intelligence activities under the National Foreign Intelligence

Program;

(4) ensure that the elements of the intelligence community

within the Department of Defense are responsive and timely

with respect to satisfying the needs of operational military

forces;

(5) eliminate waste and unnecessary duplication among

the intelligence activities of the Department of Defense; and

(6) ensure that intelligence activities of the Department of

Defense are conducted jointly where appropriate.

(b) RESPONSIBILITY FOR THE PERFORMANCE OF SPECIFIC FUNCTIONS.—Consistent with sections 103 and 104 of this Act, the Secretary of Defense shall ensure—

(1) through the National Security Agency (except as otherwise directed by the President or the National Security Council), the continued operation of an effective unified organization

for the conduct of signals intelligence activities and shall ensure that the product is disseminated in a timely manner to

authorized recipients;

(2) through the National Geospatial-Intelligence Agency

(except as otherwise directed by the President or the National

Security Council), with appropriate representation from the intelligence community, the continued operation of an effective

unified organization within the Department of Defense—

(A) for carrying out tasking of imagery collection;

(B) for the coordination of imagery processing and exploitation activities;

(C) for ensuring the dissemination of imagery in a

timely manner to authorized recipients; and

(D) notwithstanding any other provision of law, for—

(i) prescribing technical architecture and standards related to imagery intelligence and geospatial information and ensuring compliance with such architecture and standards; and
Sec. 105A NATIONAL SECURITY ACT OF 1947 470

(ii) developing and fielding systems of common

concern related to imagery intelligence and geospatial

information;

(3) through the National Reconnaissance Office (except as

otherwise directed by the President or the National Security

Council), the continued operation of an effective unified organization for the research and development, acquisition, and operation of overhead reconnaissance systems necessary to satisfy

the requirements of all elements of the intelligence community;

(4) through the Defense Intelligence Agency (except as otherwise directed by the President or the National Security

Council), the continued operation of an effective unified system

within the Department of Defense for the production of timely,

objective military and military-related intelligence, based upon

all sources available to the intelligence community, and shall

ensure the appropriate dissemination of such intelligence to

authorized recipients;

(5) through the Defense Intelligence Agency (except as otherwise directed by the President or the National Security

Council), effective management of Department of Defense

human intelligence activities, including defense attaches; and

(6) that the military departments maintain sufficient capabilities to collect and produce intelligence to meet—

(A) the requirements of the Director of Central Intelligence;

(B) the requirements of the Secretary of Defense or

the Chairman of the Joint Chiefs of Staff;

(C) the requirements of the unified and specified combatant commands and of joint operations; and

(D) the specialized requirements of the military departments for intelligence necessary to support tactical

commanders, military planners, the research and development process, the acquisition of military equipment, and

training and doctrine.

(c) USE OF ELEMENTS OF DEPARTMENT OF DEFENSE.—The Secretary of Defense, in carrying out the functions described in this

section, may use such elements of the Department of Defense as

may be appropriate for the execution of those functions, in addition

to, or in lieu of, the elements identified in this section.

ASSISTANCE TO UNITED STATES LAW ENFORCEMENT AGENCIES

SEC. 105A. ø50 U.S.C. 403–5a¿ (a) AUTHORITY TO PROVIDE ASSISTANCE.—Subject to subsection (b), elements of the intelligence

community may, upon the request of a United States law enforcement agency, collect information outside the United States about

individuals who are not United States persons. Such elements may

collect such information notwithstanding that the law enforcement

agency intends to use the information collected for purposes of a

law enforcement investigation or counterintelligence investigation.

(b) LIMITATION ON ASSISTANCE BY ELEMENTS OF DEPARTMENT

OF DEFENSE.—(1) With respect to elements within the Department

of Defense, the authority in subsection (a) applies only to the following:

(A) The National Security Agency.

(B) The National Reconnaissance Office.
471 Sec. 105B NATIONAL SECURITY ACT OF 1947

(C) The National Geospatial-Intelligence Agency.

(D) The Defense Intelligence Agency.

(2) Assistance provided under this section by elements of the

Department of Defense may not include the direct participation of

a member of the Army, Navy, Air Force, or Marine Corps in an arrest or similar activity.

(3) Assistance may not be provided under this section by an

element of the Department of Defense if the provision of such assistance will adversely affect the military preparedness of the

United States.

(4) The Secretary of Defense shall prescribe regulations governing the exercise of authority under this section by elements of

the Department of Defense, including regulations relating to the

protection of sources and methods in the exercise of such authority.

(c) DEFINITIONS.—For purposes of subsection (a):

(1) The term ‘‘United States law enforcement agency’’

means any department or agency of the Federal Government

that the Attorney General designates as law enforcement agency for purposes of this section.

(2) The term ‘‘United States person’’ means the following:

(A) A United States citizen.

(B) An alien known by the intelligence agency

concerned to be a permanent resident alien.

(C) An unincorporated association substantially

composed of United States citizens or permanent resident

aliens.

(D) A corporation incorporated in the United States,

except for a corporation directed and controlled by a foreign government or governments.

DISCLOSURE OF FOREIGN INTELLIGENCE ACQUIRED IN CRIMINAL IN- VESTIGATIONS; NOTICE OF CRIMINAL INVESTIGATIONS OF FOREIGN

INTELLIGENCE SOURCES

SEC. 105B. ø50 U.S.C. 403–5b¿ (a) DISCLOSURE OF FOREIGN IN- TELLIGENCE.—(1) Except as otherwise provided by law and subject

to paragraph (2), the Attorney General, or the head of any other

department or agency of the Federal Government with law enforcement responsibilities, shall expeditiously disclose to the Director of

Central Intelligence, pursuant to guidelines developed by the Attorney General in consultation with the Director, foreign intelligence

acquired by an element of the Department of Justice or an element

of such department or agency, as the case may be, in the course

of a criminal investigation.

(2) The Attorney General by regulation and in consultation

with the Director of Central Intelligence may provide for exceptions

to the applicability of paragraph (1) for one or more classes of foreign intelligence, or foreign intelligence with respect to one or more

targets or matters, if the Attorney General determines that disclosure of such foreign intelligence under that paragraph would jeopardize an ongoing law enforcement investigation or impair other

significant law enforcement interests.

(b) PROCEDURES FOR NOTICE OF CRIMINAL INVESTIGATIONS.—

Not later than 180 days after the date of enactment of this section,

the Attorney General, in consultation with the Director of Central

Intelligence, shall develop guidelines to ensure that after receipt of
Sec. 106 NATIONAL SECURITY ACT OF 1947 472

a report from an element of the intelligence community of activity

of a foreign intelligence source or potential foreign intelligence

source that may warrant investigation as criminal activity, the Attorney General provides notice to the Director of Central Intelligence, within a reasonable period of time, of his intention to commence, or decline to commence, a criminal investigation of such activity.

(c) PROCEDURES.—The Attorney General shall develop procedures for the administration of this section, including the disclosure of foreign intelligence by elements of the Department of Justice, and elements of other departments and agencies of the Federal Government, under subsection (a) and the provision of notice

with respect to criminal investigations under subsection (b).

APPOINTMENT OF OFFICIALS RESPONSIBLE FOR INTELLIGENCERELATED ACTIVITIES

SEC. 106. ø50 U.S.C. 403–6¿ (a) CONCURRENCE OF DCI IN CERTAIN APPOINTMENTS.—(1) In the event of a vacancy in a position referred to in paragraph (2), the Secretary of Defense shall obtain the

concurrence of the Director of Central Intelligence before recommending to the President an individual for appointment to the position. If the Director does not concur in the recommendation, the

Secretary may make the recommendation to the President without

the Director’s concurrence, but shall include in the recommendation

a statement that the Director does not concur in the recommendation.

(2) Paragraph (1) applies to the following positions:

(A) The Director of the National Security Agency.

(B) The Director of the National Reconnaissance Office.

(C) The Director of the National Geospatial-Intelligence

Agency.

(b) CONSULTATION WITH DCI IN CERTAIN APPOINTMENTS.—(1)

In the event of a vacancy in a position referred to in paragraph (2),

the head of the department or agency having jurisdiction over the

position shall consult with the Director of Central Intelligence before appointing an individual to fill the vacancy or recommending

to the President an individual to be nominated to fill the vacancy.

(2) Paragraph (1) applies to the following positions:

(A) The Director of the Defense Intelligence Agency.

(B) The Assistant Secretary of State for Intelligence and

Research.

(C) The Director of the Office of Intelligence of the Department of Energy.

(D) The Director of the Office of Counterintelligence of the

Department of Energy.

(E) The Assistant Secretary for Intelligence and Analysis

of the Department of the Treasury.

(3) In the event of a vacancy in the position of the Assistant

Director, National Security Division of the Federal Bureau of Investigation, the Director of the Federal Bureau of Investigation

shall provide timely notice to the Director of Central Intelligence

of the recommendation of the Director of the Federal Bureau of Investigation of an individual to fill the position in order that the Director of Central Intelligence may consult with the Director of the
473 Sec. 108 NATIONAL SECURITY ACT OF 1947

1Section 107 deals with emergency preparedness. Section 50 of the Act of September 3, 1954

(68 Stat. 1244), eliminated former subsection (a), relating to the establishment of the National

Security Resources Board, and redesignated former subsections (b)–(d) as subsections (a)–(c).

The section heading was not amended accordingly. 2The functions of the Director of the Office of Defense Mobilization under this section which

previously were transferred to the President, were delegated to the Director of the Federal

Emergency Management Agency by section 4–102 of Executive Order No. 12148 (July 20, 1979,

44 F.R. 43239, 50 U.S.C. App. 2251 note). 3The Classification Act of 1949 was repealed by the law enacting title 5, United States Code

(Public Law 89–544, Sept. 6, 1966, 80 Stat. 378), and its provisions were codified as chapter

51 and chapter 53 of that title.

Federal Bureau of Investigation before the Attorney General appoints an individual to fill the vacancy.

NATIONAL SECURITY RESOURCES BOARD 1

SEC. 107. ø50 U.S.C. 404¿ (a) The Director of the Office of Defense Mobilization, 2 subject to the direction of the President, is authorized, subject to the civil-service laws and the Classification Act

of 1949, 3 to appoint and fix the compensation of such personnel as

may be necessary to assist the Director in carrying out his functions.

(b) It shall be the function of the Director of the Office of Defense Mobilization to advise the President concerning the coordination of military, industrial, and civilian mobilization, including—

(1) policies concerning industrial and civilian mobilization

in order to assure the most effective mobilization and maximum utilization of the Nation’s manpower in the event of war.

(2) programs for the effective use in time of war of the Nation’s natural and industrial resources for military and civilian

needs, for the maintenance and stabilization of the civilian

economy in time of war, and for the adjustment of such economy to war needs and conditions;

(3) policies for unifying, in time of war, the activities of

Federal agencies and departments engaged in or concerned

with production, procurement, distribution, or transportation of

military or civilian supplies, materials, and products;

(4) the relationship between potential supplies of, and potential requirements for, manpower, resources, and productive

facilities in time of war;

(5) policies for establishing adequate reserves of strategic

and critical material, and for the conservation of these reserves;

(6) the strategic relocation of industries, services, government, and economic activities, the continuous operation of

which is essential to the Nation’s security.

(c) In performing his functions, the Director of the Office of Defense Mobilization shall utilize to the maximum extent the facilities and resources of the departments and agencies of the Government.

ANNUAL NATIONAL SECURITY STRATEGY REPORT

SEC. 108. ø50 U.S.C. 404a¿ (a)(1) The President shall transmit

to Congress each year a comprehensive report on the national security strategy of the United States (hereinafter in this section referred to as a national security strategy report’’).
Sec. 109 NATIONAL SECURITY ACT OF 1947 474

(2) The national security strategy report for any year shall be

transmitted on the date on which the President submits to Congress the budget for the next fiscal year under section 1105 of title

31, United States Code.

(3) Not later than 150 days after the date on which a new

President takes office, the President shall transmit to Congress a

national security strategy report under this section. That report

shall be in addition to the report for that year transmitted at the

time specified in paragraph (2).

(b) Each national security strategy report shall set forth the

national security strategy of the United States and shall include a

comprehensive description and discussion of the following:

(1) The worldwide interests, goals, and objectives of the

United States that are vital to the national security of the

United States.

(2) The foreign policy, worldwide commitments, and national defense capabilities of the United States necessary to

deter aggression and to implement the national security strategy of the United States.

(3) The proposed short-term and long-term uses of the political, economic, military, and other elements of the national

power of the United States to protect or promote the interests

and achieve the goals and objectives referred to in paragraph

(1).

(4) The adequacy of the capabilities of the United States

to carry out the national security strategy of the United States,

including an evaluation of the balance among the capabilities

of all elements of the national power of the United States to

support the implementation of the national security strategy.

(5) Such other information as may be necessary to help inform Congress on matters relating to the national security

strategy of the United States.

(c) Each national security strategy report shall be transmitted

in both a classified and an unclassified form.

ANNUAL REPORT ON INTELLIGENCE

SEC. 109. (a) IN GENERAL.—(1)(A) Not later each year than the

date provided in section 507, the President shall submit to the congressional intelligence committees a report on the requirements of

the United States for intelligence and the activities of the intelligence community.

(B) Not later than January 31 each year, and included with the

budget of the President for the next fiscal year under section

1105(a) of title 31, United States Code, the President shall submit

to the appropriate congressional committees the report described in

subparagraph (A).

(2) The purpose of the report is to facilitate an assessment of

the activities of the intelligence community during the preceding

fiscal year and to assist in the development of a mission and a

budget for the intelligence community for the fiscal year beginning

in the year in which the report is submitted.

(3) The report shall be submitted in unclassified form, but may

include a classified annex.

(b) MATTERS COVERED.—(1) Each report under subsection (a)

shall—
475 Sec. 109 NATIONAL SECURITY ACT OF 1947

(A) specify the intelligence required to meet the national

security interests of the United States, and set forth an order

of priority for the collection and analysis of intelligence required to meet such interests, for the fiscal year beginning in

the year in which the report is submitted; and

(B) evaluate the performance of the intelligence community in collecting and analyzing intelligence required to meet

such interests during the fiscal year ending in the year

preceding the year in which the report is submitted, including

a description of the significant successes and significant failures of the intelligence community in such collection and analysis during that fiscal year.

(2) The report shall specify matters under paragraph (1)(A) in

sufficient detail to assist Congress in making decisions with respect

to the allocation of resources for the matters specified.

(c) DEFINITION.—In this section, the term ‘‘appropriate congressional committees’’ means the following:

(1) The Committee on Appropriations and the Committee

on Armed Services of the Senate.

(2) The Committee on Appropriations and the Committee

on Armed Services of the House of Representatives.

NATIONAL MISSION OF NATIONAL GEOSPATIAL-INTELLIGENCE AGENCY

SEC. 110. ø50 U.S.C. 404e¿ (a) IN GENERAL.—In addition to the

Department of Defense missions set forth in section 442 of title 10,

United States Code, the National Geospatial-Intelligence Agency

shall support the geospatial intelligence requirements of the Department of State and other departments and agencies of the

United States outside the Department of Defense.

(b) REQUIREMENTS AND PRIORITIES.—The Director of Central

Intelligence shall establish requirements and priorities governing

the collection of national intelligence by the National Geospatial-Intelligence Agency under subsection (a).

(c) CORRECTION OF DEFICIENCIES.—The Director of Central Intelligence shall develop and implement such programs and policies

as the Director and the Secretary of Defense jointly determine necessary to review and correct deficiencies identified in the capabilities of the National Geospatial-Intelligence Agency to accomplish

assigned national missions, including support to the all-source

analysis and production process. The Director shall consult with

the Secretary of Defense on the development and implementation

of such programs and policies. The Secretary shall obtain the advice of the Chairman of the Joint Chiefs of Staff regarding the matters on which the Director and the Secretary are to consult under

the preceding sentence.

COLLECTION TASKING AUTHORITY

SEC. 111. ø50 U.S.C. 404f¿ Unless otherwise directed by the

President, the Director of Central Intelligence shall have authority

(except as otherwise agreed by the Director and the Secretary of

Defense) to—

(1) approve collection requirements levied on national imagery collection assets;

(2) determine priorities for such requirements; and
Sec. 112 NATIONAL SECURITY ACT OF 1947 476

(3) resolve conflicts in such priorities.

RESTRICTIONS ON INTELLIGENCE SHARING WITH THE UNITED NATIONS

SEC. 112. ø50 U.S.C. 404g¿ (a) PROVISION OF INTELLIGENCE INFORMATION TO THE UNITED NATIONS.—(1) No United States intelligence information may be provided to the United Nations or any

organization affiliated with the United Nations, or to any officials

or employees thereof, unless the President certifies to the appropriate committees of Congress that the Director of Central Intelligence, in consultation with the Secretary of State and the Secretary of Defense, has established and implemented procedures,

and has worked with the United Nations to ensure implementation

of procedures, for protecting from unauthorized disclosure United

States intelligence sources and methods connected to such information.

(2) Paragraph (1) may be waived upon written certification by

the President to the appropriate committees of Congress that providing such information to the United Nations or an organization

affiliated with the United Nations, or to any officials or employees

thereof, is in the national security interests of the United States.

(b) ANNUAL AND SPECIAL REPORTS.—(1) The President shall report annually to the appropriate committees of Congress on the

types and volume of intelligence provided to the United Nations

and the purposes for which it was provided during the period covered by the report. The President shall also report to the appropriate committees of Congress within 15 days after it has become

known to the United States Government that there has been an

unauthorized disclosure of intelligence provided by the United

States to the United Nations.

(2) The requirement for periodic reports under the first sentence of paragraph (1) shall not apply to the provision of intelligence that is provided only to, and for the use of, appropriately

cleared United States Government personnel serving with the

United Nations.

(3) In the case of the annual reports required to be submitted

under the first sentence of paragraph (1) to the congressional intelligence committees, the submittal dates for such reports shall be as

provided in section 507.

(c) DELEGATION OF DUTIES.—The President may not delegate

or assign the duties of the President under this section.

(d) RELATIONSHIP TO EXISTING LAW.—Nothing in this section

shall be construed to—

(1) impair or otherwise affect the authority of the Director

of Central Intelligence to protect intelligence sources and

methods from unauthorized disclosure pursuant to section

103(c)(7) of this Act; or

(2) supersede or otherwise affect the provisions of title V

of this Act.

(e) DEFINITION.—As used in this section, the term ‘‘appropriate

committees of Congress’’ means the Committee on Foreign Relations and the Select Committee on Intelligence of the Senate and

the Committee on Foreign Relations and the Permanent Select

Committee on Intelligence of the House of Representatives.
477 Sec. 114 NATIONAL SECURITY ACT OF 1947

DETAIL OF INTELLIGENCE COMMUNITY PERSONNEL—INTELLIGENCE

COMMUNITY ASSIGNMENT PROGRAM

SEC. 113. ø50 U.S.C. 404h¿ (a) DETAIL.—(1) Notwithstanding

any other provision of law, the head of a department with an element in the intelligence community or the head of an intelligence

community agency or element may detail any employee within that

department, agency, or element to serve in any position in the Intelligence Community Assignment Program on a reimbursable or a

nonreimbursable basis.

(2) Nonreimbursable details may be for such periods as are

agreed to between the heads of the parent and host agencies, up

to a maximum of three years, except that such details may be extended for a period not to exceed one year when the heads of the

parent and host agencies determine that such extension is in the

public interest.

(b) BENEFITS, ALLOWANCES, TRAVEL, INCENTIVES.—(1) An employee detailed under subsection (a) may be authorized any benefit,

allowance, travel, or incentive otherwise provided to enhance staffing by the organization from which the employee is detailed.

(2) The head of an agency of an employee detailed under subsection (a) may pay a lodging allowance for the employee subject

to the following conditions:

(A) The allowance shall be the lesser of the cost of the

lodging or a maximum amount payable for the lodging as established jointly by the Director of Central Intelligence and—

(i) with respect to detailed employees of the Department of Defense, the Secretary of Defense; and

(ii) with respect to detailed employees of other agencies and departments, the head of such agency or department.

(B) The detailed employee maintains a primary residence

for the employee’s immediate family in the local commuting

area of the parent agency duty station from which the employee regularly commuted to such duty station before the detail.

(C) The lodging is within a reasonable proximity of the

host agency duty station.

(D) The distance between the detailed employee’s parent

agency duty station and the host agency duty station is greater

than 20 miles.

(E) The distance between the detailed employee’s primary

residence and the host agency duty station is 10 miles greater

than the distance between such primary residence and the employees parent duty station.

(F) The rate of pay applicable to the detailed employee

does not exceed the rate of basic pay for grade GS–15 of the

General Schedule.

ADDITIONAL ANNUAL REPORTS FROM THE DIRECTOR OF CENTRAL

INTELLIGENCE

SEC. 114. ø50 U.S.C. 404i¿ (a) ANNUAL REPORT ON THE SAFETY

AND SECURITY OF RUSSIAN NUCLEAR FACILITIES AND NUCLEAR

MILITARY FORCES.—(1) The Director of Central Intelligence shall

submit to the congressional leadership on an annual basis, and to
Sec. 114 NATIONAL SECURITY ACT OF 1947 478

the congressional intelligence committees on the date each year

provided in section 507, an intelligence report assessing the safety

and security of the nuclear facilities and nuclear military forces in

Russia.

(2) Each such report shall include a discussion of the following:

(A) The ability of the Government of Russia to maintain its

nuclear military forces.

(B) The security arrangements at civilian and military nuclear facilities in Russia.

(C) The reliability of controls and safety systems at civilian

nuclear facilities in Russia.

(D) The reliability of command and control systems and

procedures of the nuclear military forces in Russia.

(3) Each such report shall be submitted in unclassified form,

but may contain a classified annex.

(b) ANNUAL REPORT ON HIRING AND RETENTION OF MINORITY

EMPLOYEES.—(1) The Director of Central Intelligence shall, on an

annual basis, submit to Congress a report on the employment of

covered persons within each element of the intelligence community

for the preceding fiscal year.

(2) Each such report shall include disaggregated data by category of covered person from each element of the intelligence community on the following:

(A) Of all individuals employed in the element during the

fiscal year involved, the aggregate percentage of such individuals who are covered persons.

(B) Of all individuals employed in the element during the

fiscal year involved at the levels referred to in clauses (i) and

(ii), the percentage of covered persons employed at such levels:

(i) Positions at levels 1 through 15 of the General

Schedule.

(ii) Positions at levels above GS–15.

(C) Of all individuals hired by the element involved during

the fiscal year involved, the percentage of such individuals who

are covered persons.

(3) Each such report shall be submitted in unclassified form,

but may contain a classified annex.

(4) Nothing in this subsection shall be construed as providing

for the substitution of any similar report required under another

provision of law.

(5) In this subsection, the term ‘‘covered persons’’ means—

(A) racial and ethnic minorities;

(B) women; and

(C) individuals with disabilities.

(c) ANNUAL REPORT ON THREAT OF ATTACK ON THE UNITED

STATES USING WEAPONS OF MASS DESTRUCTION.—(1) Not later

each year than the date provided in section 507, the Director shall

submit to the congressional committees specified in paragraph (3)

a report assessing the following:

(A) The current threat of attack on the United States

using ballistic missiles or cruise missiles.

(B) The current threat of attack on the United States

using a chemical, biological, or nuclear weapon delivered by a

system other than a ballistic missile or cruise missile.
479 Sec. 115 NATIONAL SECURITY ACT OF 1947

(2) Each report under paragraph (1) shall be a national intelligence estimate, or have the formality of a national intelligence estimate.

(3) The congressional committees referred to in paragraph (1)

are the following:

(A) The congressional intelligence committees.

(B) The Committees on Foreign Relations and Armed Services of the Senate.

(C) The Committees on International Relations and Armed

Services of the House of Representatives.

(d) CONGRESSIONAL LEADERSHIP DEFINED.—In this section, the

term ‘‘congressional leadership’’ means the Speaker and the minority leader of the House of Representatives and the majority leader

and the minority leader of the Senate.

ANNUAL REPORT ON IMPROVEMENT OF FINANCIAL STATEMENTS FOR

AUDITING PURPOSES

SEC. 114A. ø50 U.S.C. 404i–1¿ Not later each year than the

date provided in section 507, the Director of Central Intelligence,

the Director of the National Security Agency, the Director of the

Defense Intelligence Agency, and the Director of the National Imagery and Mapping Agency shall each submit to the congressional

intelligence committees a report describing the activities being undertaken by such official to ensure that the financial statements of

such agency can be audited in accordance with applicable law and

requirements of the Office of Management and Budget.

LIMITATION ON ESTABLISHMENT OR OPERATION OF DIPLOMATIC

INTELLIGENCE SUPPORT CENTERS

SEC. 115. ø50 U.S.C. 404j¿ (a) IN GENERAL.—(1) A diplomatic

intelligence support center may not be established, operated, or

maintained without the prior approval of the Director of Central

Intelligence.

(2) The Director may only approve the establishment, operation, or maintenance of a diplomatic intelligence support center if

the Director determines that the establishment, operation, or maintenance of such center is required to provide necessary intelligence

support in furtherance of the national security interests of the

United States.

(b) PROHIBITION OF USE OF APPROPRIATIONS.—Amounts appropriated pursuant to authorizations by law for intelligence and intelligence-related activities may not be obligated or expended for the

establishment, operation, or maintenance of a diplomatic intelligence support center that is not approved by the Director of Central Intelligence.

(c) DEFINITIONS.—In this section:

(1) The term ‘‘diplomatic intelligence support center’’

means an entity to which employees of the various elements of

the intelligence community (as defined in section 3(4)) are detailed for the purpose of providing analytical intelligence support that—

(A) consists of intelligence analyses on military or political matters and expertise to conduct limited assessments and dynamic taskings for a chief of mission; and
Sec. 116 NATIONAL SECURITY ACT OF 1947 480

(B) is not intelligence support traditionally provided to

a chief of mission by the Director of Central Intelligence.

(2) The term ‘‘chief of mission’’ has the meaning given that

term by section 102(3) of the Foreign Service Act of 1980 (22

U.S.C. 3902(3)), and includes ambassadors at large and ministers of diplomatic missions of the United States, or persons

appointed to lead United States offices abroad designated by

the Secretary of State as diplomatic in nature.

(d) TERMINATION.—This section shall cease to be effective on

October 1, 2000.

TRAVEL ON ANY COMMON CARRIER FOR CERTAIN INTELLIGENCE

COLLECTION PERSONNEL

SEC. 116. ø50 U.S.C. 404k¿ (a) IN GENERAL.—Notwithstanding

any other provision of law, the Director of Central Intelligence may

authorize travel on any common carrier when such travel, in the

discretion of the Director—

(1) is consistent with intelligence community mission requirements, or

(2) is required for cover purposes, operational needs, or

other exceptional circumstances necessary for the successful

performance of an intelligence community mission.

(b) AUTHORIZED DELEGATION OF DUTY.—The Director may only

delegate the authority granted by this section to the Deputy Director of Central Intelligence, or with respect to employees of the Central Intelligence Agency the Director may delegate such authority

to the Deputy Director for Operations.

POW/MIA ANALYTIC CAPABILITY

SEC. 117. ø50 U.S.C. 404l¿ (a) REQUIREMENT.—(1) The Director

of Central Intelligence shall, in consultation with the Secretary of

Defense, establish and maintain in the intelligence community an

analytic capability with responsibility for intelligence in support of

the activities of the United States relating to individuals who, after

December 31, 1990, are unaccounted for United States personnel.

(2) The analytic capability maintained under paragraph (1)

shall be known as the ‘‘POW/MIA analytic capability of the intelligence community’’.

(b) UNACCOUNTED FOR UNITED STATES PERSONNEL.—In this

section, the term ‘‘unaccounted for United States personnel’’ means

the following:

(1) Any missing person (as that term is defined in section

1513(1) of title 10, United States Code).

(2) Any United States national who was killed while engaged in activities on behalf of the United States and whose

remains have not been repatriated to the United States.

SEMIANNUAL REPORT ON FINANCIAL INTELLIGENCE ON TERRORIST

ASSETS

SEC. 118. ø50 U.S.C. 404m¿ (a) SEMIANNUAL REPORT.—On a

semiannual basis, the Secretary of the Treasury (acting through

the head of the Office of Intelligence Support) shall submit a report

to the appropriate congressional committees that fully informs the

committees concerning operations against terrorist financial net-
481 Sec. 501 NATIONAL SECURITY ACT OF 1947

1This title is also set out post at page 711 along with other materials relating to congressional

oversight of intelligence activities.

works. Each such report shall include with respect to the preceding

six-month period—

(1) the total number of asset seizures, designations, and

other actions against individuals or entities found to have engaged in financial support of terrorism;

(2) the total number of applications for asset seizure and

designations of individuals or entities suspected of having engaged in financial support of terrorist activities that were

granted, modified, or denied;

(3) the total number of physical searches of offices, residences, or financial records of individuals or entities suspected

of having engaged in financial support for terrorist activity;

and

(4) whether the financial intelligence information seized in

these cases has been shared on a full and timely basis with the

all departments, agencies, and other entities of the United

States Government involved in intelligence activities participating in the Foreign Terrorist Asset Tracking Center.

(b) IMMEDIATE NOTIFICATION FOR EMERGENCY DESIGNATION.—

In the case of a designation of an individual or entity, or the assets

of an individual or entity, as having been found to have engaged

in terrorist activities, the Secretary of the Treasury shall report

such designation within 24 hours of such a designation to the appropriate congressional committees.

(c) SUBMITTAL DATE OF REPORTS TO CONGRESSIONAL INTELLIGENCE COMMITTEES.—In the case of the reports required to be

submitted under subsection (a) to the congressional intelligence

committees, the submittal dates for such reports shall be as provided in section 507.

(d) APPROPRIATE CONGRESSIONAL COMMITTEES DEFINED.—In

this section, the term ‘‘appropriate congressional committees’’

means the following:

(1) The Permanent Select Committee on Intelligence, the

Committee on Appropriations, and the Committee on Financial

Services of the House of Representatives.

(2) The Select Committee on Intelligence, the Committee

on Appropriations, and the Committee on Banking, Housing,

and Urban Affairs of the Senate.

* * * * * * *

TITLE V—ACCOUNTABILITY FOR INTELLIGENCE

ACTIVITIES 1

GENERAL CONGRESSIONAL OVERSIGHT PROVISIONS

SEC. 501. ø50 U.S.C. 413¿ (a)(1) The President shall ensure

that the congressional intelligence committees are kept fully and

currently informed of the intelligence activities of the United

States, including any significant anticipated intelligence activity as

required by this title.

(2) Nothing in this title shall be construed as requiring the approval of the congressional intelligence committees as a condition
Sec. 502 NATIONAL SECURITY ACT OF 1947 482

precedent to the initiation of any significant anticipated intelligence activity.

(b) The President shall ensure that any illegal intelligence activity is reported promptly to the congressional intelligence committees, as well as any corrective action that has been taken or is

planned in connection with such illegal activity.

(c) The President and the congressional intelligence committees

shall each establish such procedures as may be necessary to carry

out the provisions of this title.

(d) The House of Representatives and the Senate shall each establish, by rule or resolution of such House, procedures to protect

from unauthorized disclosure all classified information, and all information relating to intelligence sources and methods, that is furnished to the congressional intelligence committees or to Members

of Congress under this title. Such procedures shall be established

in consultation with the Director of Central Intelligence. In accordance with such procedures, each of the congressional intelligence

committees shall promptly call to the attention of its respective

House, or to any appropriate committee or committees of its respective House, any matter relating to intelligence activities requiring

the attention of such House or such committee or committees.

(e) Nothing in this Act shall be construed as authority to withhold information from the congressional intelligence committees on

the grounds that providing the information to the congressional intelligence committees would constitute the unauthorized disclosure

of classified information or information relating to intelligence

sources and methods.

(f) As used in this section, the term ‘‘intelligence activities’’ includes covert actions as defined in section 503(e), and includes financial intelligence activities.

REPORTING OF INTELLIGENCE ACTIVITIES OTHER THAN COVERT

ACTIONS

SEC. 502. ø50 U.S.C. 413a¿ (a) IN GENERAL.—To the extent

consistent with due regard for the protection from unauthorized

disclosure of classified information relating to sensitive intelligence

sources and methods or other exceptionally sensitive matters, the

Director of Central Intelligence and the heads of all departments,

agencies, and other entities of the United States Government involved in intelligence activities shall—

(1) keep the congressional intelligence committees fully

and currently informed of all intelligence activities, other than

a covert action (as defined in section 503(e)), which are the responsibility of, are engaged in by, or are carried out for or on

behalf of, any department, agency, or entity of the United

States Government, including any significant anticipated intelligence activity and any significant intelligence failure; and

(2) furnish the congressional intelligence committees any

information or material concerning intelligence activities, other

than covert actions, which is within their custody or control,

and which is requested by either of the congressional intelligence committees in order to carry out its authorized responsibilities.

(b) FORM AND CONTENTS OF CERTAIN REPORTS.—Any report relating to a significant anticipated intelligence activity or a signifi-
483 Sec. 503 NATIONAL SECURITY ACT OF 1947

cant intelligence failure that is submitted to the congressional intelligence committees for purposes of subsection (a)(1) shall be in

writing, and shall contain the following:

(1) A concise statement of any facts pertinent to such report.

(2) An explanation of the significance of the intelligence activity or intelligence failure covered by such report.

(c) STANDARDS AND PROCEDURES FOR CERTAIN REPORTS.—The

Director of Central Intelligence, in consultation with the heads of

the departments, agencies, and entities referred to in subsection

(a), shall establish standards and procedures applicable to reports

covered by subsection (b).

PRESIDENTIAL APPROVAL AND REPORTING OF COVERT ACTIONS

SEC. 503. ø50 U.S.C. 413b¿ (a) The President may not authorize the conduct of a covert action by departments, agencies, or entities of the United States Government unless the President determines such an action is necessary to support identifiable foreign

policy objectives of the United States and is important to the national security of the United States, which determination shall be

set forth in a finding that shall meet each of the following conditions:

(1) Each finding shall be in writing, unless immediate action by the United States is required and time does not permit

the preparation of a written finding, in which case a written

record of the President’s decision shall be contemporaneously

made and shall be reduced to a written finding as soon as possible but in no event more than 48 hours after the decision is

made.

(2) Except as permitted by paragraph (1), a finding may

not authorize or sanction a covert action, or any aspect of any

such action, which already has occurred.

(3) Each finding shall specify each department, agency, or

entity of the United States Government authorized to fund or

otherwise participate in any significant way in such action.

Any employee, contractor, or contract agent of a department,

agency, or entity of the United States Government other than

the Central Intelligence Agency directed to participate in any

way in a covert action shall be subject either to the policies

and regulations of the Central Intelligence Agency, or to written policies or regulations adopted by such department, agency, or entity, to govern such participation.

(4) Each finding shall specify whether it is contemplated

that any third party which is not an element of, or a contractor

or contract agent of, the United States Government, or is not

otherwise subject to United States Government policies and

regulations, will be used to fund or otherwise participate in

any significant way in the covert action concerned, or be used

to undertake the covert action concerned on behalf of the

United States.

(5) A finding may not authorize any action that would violate the Constitution or any statute of the United States.

(b) To the extent consistent with due regard for the protection

from unauthorized disclosure of classified information relating to

sensitive intelligence sources and methods or other exceptionally
Sec. 503 NATIONAL SECURITY ACT OF 1947 484

sensitive matters, the Director of Central Intelligence and the

heads of all departments, agencies, and entities of the United

States Government involved in a covert action—

(1) shall keep the congressional intelligence committees

fully and currently informed of all covert actions which are the

responsibility of, are engaged in by, or are carried out for or

on behalf of, any department, agency, or entity of the United

States Government, including significant failures; and

(2) shall furnish to the congressional intelligence committees any information or material concerning covert actions

which is in the possession, custody, or control of any department, agency, or entity of the United States Government and

which is requested by either of the congressional intelligence

committees in order to carry out its authorized responsibilities.

(c)(1) The President shall ensure that any finding approved

pursuant to subsection (a) shall be reported to the congressional intelligence committees as soon as possible after such approval and

before the initiation of the covert action authorized by the finding,

except as otherwise provided in paragraph (2) and paragraph (3).

(2) If the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting

vital interests of the United States, the finding may be reported to

the chairmen and ranking minority members of the congressional

intelligence committees, the Speaker and minority leader of the

House of Representatives, the majority and minority leaders of the

Senate, and such other member or members of the congressional

leadership as may be included by the President.

(3) Whenever a finding is not reported pursuant to paragraph

(1) or (2) of this section, the President shall fully inform the congressional intelligence committees in a timely fashion and shall

provide a statement of the reasons for not giving prior notice.

(4) In a case under paragraph (1), (2), or (3), a copy of the finding, signed by the President, shall be provided to the chairman of

each congressional intelligence committee. When access to a finding

is limited to the Members of Congress specified in paragraph (2),

a statement of the reasons for limiting such access shall also be

provided.

(d) The President shall ensure that the congressional intelligence committees, or, if applicable, the Members of Congress specified in subsection (c)(2), are notified of any significant change in

a previously approved covert action, or any significant undertaking

pursuant to a previously approved finding, in the same manner as

findings are reported pursuant to subsection (c).

(e) As used in this title, the term ‘‘covert action’’ means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended

that the role of the United States Government will not be apparent

or acknowledged publicly, but does not include—

(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional

activities to improve or maintain the operational security of

United States Government programs, or administrative activities;

(2) traditional diplomatic or military activities or routine

support to such activities;
485 Sec. 504 NATIONAL SECURITY ACT OF 1947

(3) traditional law enforcement activities conducted by

United States Government law enforcement agencies or routine support to such activities; or

(4) activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3))

of other United States Government agencies abroad.

(f) No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or

media.

FUNDING OF INTELLIGENCE ACTIVITIES

SEC. 504. ø50 U.S.C. 414¿ (a) Appropriated funds available to

an intelligence agency may be obligated or expended for an intelligence or intelligence-related activity only if—

(1) those funds were specifically authorized by the Congress for use for such activities; or

(2) in the case of funds from the Reserve for Contingencies

of the Central Intelligence Agency and consistent with the provisions of section 503 of this Act concerning any significant anticipated intelligence activity, the Director of Central Intelligence has notified the appropriate congressional committees

of the intent to make such funds available for such activity; or

(3) in the case of funds specifically authorized by the Congress for a different activity—

(A) the activity to be funded is a higher priority intelligence or intelligence-related activity;

(B) the need for funds for such activity is based on

unforseen requirements; and

(C) the Director of Central Intelligence, the Secretary

of Defense, or the Attorney General, as appropriate, has

notified the appropriate congressional committees of the

intent to make such funds available for such activity;

(4) nothing in this subsection prohibits obligation or expenditure of funds available to an intelligence agency in accordance with sections 1535 and 1536 of title 31, United States

Code.

(b) Funds available to an intelligence agency may not be made

available for any intelligence or intelligence-related activity for

which funds were denied by the Congress.

(c) No funds appropriated for, or otherwise available to, any department, agency, or entity of the United States Government may

be expended, or may be directed to be expended, for any covert action, as defined in section 503(e), unless and until a Presidential

finding required by subsection (a) of section 503 has been signed

or otherwise issued in accordance with that subsection.

(d)(1) Except as otherwise specifically provided by law, funds

available to an intelligence agency that are not appropriated funds

may be obligated or expended for an intelligence or intelligence-related activity only if those funds are used for activities reported to

the appropriate congressional committees pursuant to procedures

which identify—

(A) the types of activities for which nonappropriated funds

may be expended; and
Sec. 505 NATIONAL SECURITY ACT OF 1947 486

(B) the circumstances under which an activity must be reported as a significant anticipated intelligence activity before

such funds can be expended.

(2) Procedures for purposes of paragraph (1) shall be jointly

agreed upon by the congressional intelligence committees and, as

appropriate, the Director of Central Intelligence or the Secretary of

Defense.

(e) As used in this section—

(1) the term ‘‘intelligence agency’’ means any department,

agency, or other entity of the United States involved in intelligence or intelligence-related activities;

(2) the term ‘‘appropriate congressional committees’’ means

the Permanent Select Committee on Intelligence and the Committee on Appropriations of the House of Representatives and

the Select Committee on Intelligence and the Committee on

Appropriations of the Senate; and

(3) the term ‘‘specifically authorized by the Congress’’

means that—

(A) the activity and the amount of funds proposed to

be used for that activity were identified in a formal budget

request to the Congress, but funds shall be deemed to be

specifically authorized for that activity only to the extent

that the Congress both authorized the funds to be appropriated for that activity and appropriated the funds for

that activity; or

(B) although the funds were not formally requested,

the Congress both specifically authorized the appropriation

of the funds for the activity and appropriated the funds for

the activity.

NOTICE TO CONGRESS OF CERTAIN TRANSFERS OF DEFENSE ARTICLES

AND DEFENSE SERVICES

SEC. 505. ø50 U.S.C. 415¿ (a)(1) The transfer of a defense article or defense service, or the anticipated transfer in any fiscal year

of any aggregation of defense articles or defense services, exceeding

$1,000,000 in value by an intelligence agency to a recipient outside

that agency shall be considered a significant anticipated intelligence activity for the purpose of this title.

(2) Paragraph (1) does not apply if—

(A) the transfer is being made to a department, agency, or

other entity of the United States (so long as there will not be

a subsequent retransfer of the defense articles or defense services outside the United States Government in conjunction with

an intelligence or intelligence-related activity); or

(B) the transfer—

(i) is being made pursuant to authorities contained in

part II of the Foreign Assistance Act of 1961, the Arms Export Control Act, title 10 of the United States Code (including a law enacted pursuant to section 7307(a) of that

title), or the Federal Property and Administrative Services

Act of 1949, and

(ii) is not being made in conjunction with an intelligence or intelligence-related activity.

(3) An intelligence agency may not transfer any defense articles or defense services outside the agency in conjunction with any
487 Sec. 506A NATIONAL SECURITY ACT OF 1947

intelligence or intelligence-related activity for which funds were denied by the Congress.

(b) As used in this section—

(1) the term ‘‘intelligence agency’’ means any department,

agency, or other entity of the United States involved in intelligence or intelligence-related activities;

(2) the terms ‘‘defense articles’’ and ‘‘defense services’’

mean the items on the United States Munitions List pursuant

to section 38 of the Arms Export Control Act (22 CFR part

121);

(3) the term ‘‘transfer’’ means—

(A) in the case of defense articles, the transfer of possession of those articles; and

(B) in the case of defense services, the provision of

those services; and

(4) the term ‘‘value’’ means—

(A) in the case of defense articles, the greater of—

(i) the original acquisition cost to the United

States Government, plus the cost of improvements or

other modifications made by or on behalf of the Government; or

(ii) the replacement cost; and

(B) in the case of defense services, the full cost to the

Government of providing the services.

SPECIFICITY OF NATIONAL FOREIGN INTELLIGENCE PROGRAM BUDGET

AMOUNTS FOR COUNTERTERRORISM, COUNTERPROLIFERATION,

COUNTERNARCOTICS, AND COUNTERINTELLIGENCE

SEC. 506. (a) ø50 U.S.C. 415a¿ IN GENERAL.—The budget justification materials submitted to Congress in support of the budget

of the President for a fiscal year that is submitted to Congress

under section 1105(a) of title 31, United States Code, shall set forth

separately the aggregate amount requested for that fiscal year for

the National Foreign Intelligence Program for each of the following:

(1) Counterterrorism.

(2) Counterproliferation.

(3) Counternarcotics.

(4) Counterintelligence.

(b) ELECTION OF CLASSIFIED OR UNCLASSIFIED FORM.—

Amounts set forth under subsection (a) may be set forth in unclassified form or classified form, at the election of the Director of Central Intelligence.

BUDGET TREATMENT OF COSTS OF ACQUISITION OF MAJOR SYSTEMS

BY THE INTELLIGENCE COMMUNITY

SEC. 506A. ø50 U.S.C. 415a–1¿ (a) INDEPENDENT COST ESTIMATES.—(1) The Director of Central Intelligence shall, in consultation with the head of each element of the intelligence community

concerned, prepare an independent cost estimate of the full lifecycle cost of development, procurement, and operation of each

major system to be acquired by the intelligence community.

(2) Each independent cost estimate for a major system shall,

to the maximum extent practicable, specify the amount required to

be appropriated and obligated to develop, procure, and operate the
Sec. 506A NATIONAL SECURITY ACT OF 1947 488

major system in each fiscal year of the proposed period of development, procurement, and operation of the major system.

(3)(A) In the case of a program of the intelligence community

that qualifies as a major system, an independent cost estimate

shall be prepared before the submission to Congress of the budget

of the President for the first fiscal year in which appropriated

funds are anticipated to be obligated for the development or procurement of such major system.

(B) In the case of a program of the intelligence community for

which an independent cost estimate was not previously required to

be prepared under this section, including a program for which development or procurement commenced before the date of the enactment of the Intelligence Authorization Act for Fiscal Year 2004, if

the aggregate future costs of development or procurement (or any

combination of such activities) of the program will exceed

$500,000,000 (in current fiscal year dollars), the program shall

qualify as a major system for purposes of this section, and an independent cost estimate for such major system shall be prepared before the submission to Congress of the budget of the President for

the first fiscal year thereafter in which appropriated funds are anticipated to be obligated for such major system.

(4) The independent cost estimate for a major system shall be

updated upon—

(A) the completion of any preliminary design review associated with the major system;

(B) any significant modification to the anticipated design

of the major system; or

(C) any change in circumstances that renders the current

independent cost estimate for the major system inaccurate.

(5) Any update of an independent cost estimate for a major system under paragraph (4) shall meet all requirements for independent cost estimates under this section, and shall be treated as

the most current independent cost estimate for the major system

until further updated under that paragraph.

(b) PREPARATION OF INDEPENDENT COST ESTIMATES.—(1) The

Director shall establish within the Office of the Deputy Director of

Central Intelligence for Community Management an office which

shall be responsible for preparing independent cost estimates, and

any updates thereof, under subsection (a), unless a designation is

made under paragraph (2).

(2) In the case of the acquisition of a major system for an element of the intelligence community within the Department of Defense, the Director and the Secretary of Defense shall provide that

the independent cost estimate, and any updates thereof, under subsection (a) be prepared by an entity jointly designated by the Director and the Secretary in accordance with section 2434(b)(1)(A) of

title 10, United States Code.

(c) UTILIZATION IN BUDGETS OF PRESIDENT.—(1) If the budget

of the President requests appropriations for any fiscal year for the

development or procurement of a major system by the intelligence

community, the President shall, subject to paragraph (2), request

in such budget an amount of appropriations for the development or

procurement, as the case may be, of the major system that is equivalent to the amount of appropriations identified in the most current

independent cost estimate for the major system for obligation for
489 Sec. 506A NATIONAL SECURITY ACT OF 1947

each fiscal year for which appropriations are requested for the

major system in such budget.

(2) If the amount of appropriations requested in the budget of

the President for the development or procurement of a major system is less than the amount of appropriations identified in the

most current independent cost estimate for the major system for

obligation for each fiscal year for which appropriations are requested for the major system in such budget, the President shall

include in the budget justification materials submitted to Congress

in support of such budget—

(A) an explanation for the difference between the amount

of appropriations requested and the amount of appropriations

identified in the most current independent cost estimate;

(B) a description of the importance of the major system to

the national security;

(C) an assessment of the consequences for the funding of

all programs of the National Foreign Intelligence Program in

future fiscal years if the most current independent cost estimate for the major system is accurate and additional appropriations are required in future fiscal years to ensure the continued development or procurement of the major system, including the consequences of such funding shortfalls on the

major system and all other programs of the National Foreign

Intelligence Program; and

(D) such other information on the funding of the major system as the President considers appropriate.

(d) INCLUSION OF ESTIMATES IN BUDGET JUSTIFICATION MATERIALS.—The budget justification materials submitted to Congress in

support of the budget of the President shall include the most current independent cost estimate under this section for each major

system for which appropriations are requested in such budget for

any fiscal year.

(e) DEFINITIONS.—In this section:

(1) The term ‘‘budget of the President’’ means the budget

of the President for a fiscal year as submitted to Congress

under section 1105(a) of title 31, United States Code.

(2) The term ‘‘independent cost estimate’’ means a pragmatic and neutral analysis, assessment, and quantification of

all costs and risks associated with the acquisition of a major

system, which shall be based on programmatic and technical

specifications provided by the office within the element of the

intelligence community with primary responsibility for the development, procurement, or operation of the major system.

(3) The term ‘‘major system’’ means any significant program of an element of the intelligence community with projected total development and procurement costs exceeding

$500,000,000 (in current fiscal year dollars), which costs shall

include all end-to-end program costs, including costs associated

with the development and procurement of the program and

any other costs associated with the development and procurement of systems required to support or utilize the program.
Sec. 507 NATIONAL SECURITY ACT OF 1947 490

DATES FOR SUBMITTAL OF VARIOUS ANNUAL AND SEMIANNUAL

REPORTS TO THE CONGRESSIONAL INTELLIGENCE COMMITTEES

SEC. 507. ø50 U.S.C. 415b¿ (a) ANNUAL REPORTS.—(1) The date

for the submittal to the congressional intelligence committees of

the following annual reports shall be the date each year provided

in subsection (c)(1)(A):

(A) The annual report on intelligence required by section

109.

(B) The annual report on intelligence provided to the

United Nations required by section 112(b)(1).

(C) The annual report on the protection of the identities of

covert agents required by section 603.

(D) The annual report of the Inspectors Generals of the intelligence community on proposed resources and activities of

their offices required by section 8H(g) of the Inspector General

Act of 1978.

(E) The annual report on the acquisition of technology relating to weapons of mass destruction and advanced conventional munitions required by section 721 of the Intelligence Authorization Act for Fiscal Year 1997 (Public Law 104–293; 50

U.S.C. 2366).

(F) The annual report on commercial activities as security

for intelligence collection required by section 437(c) of title 10,

United States Code.

(G) The annual update on foreign industrial espionage required by section 809(b) of the Counterintelligence and Security Enhancements Act of 1994 (title VIII of Public Law 103–

359; 50 U.S.C. App. 2170b(b)).

(H) The annual report on certifications for immunity in

interdiction of aircraft engaged in illicit drug trafficking required by section 1012(c)(2) of the National Defense Authorization Act for Fiscal Year 1995 (22 U.S.C. 2291–4(c)(2)).

(I) The annual report on activities under the David L.

Boren National Security Education Act of 1991 (title VIII of

Public Law 102–183; 50 U.S.C. 1901 et seq.) required by section 806(a) of that Act (50 U.S.C. 1906(a)).

(N) The annual report on hiring and retention of minority

employees in the intelligence community required by section

114(c).

(2) The date for the submittal to the congressional intelligence

committees of the following annual reports shall be the date each

year provided in subsection (c)(1)(B):

(A) The annual report on the safety and security of Russian nuclear facilities and nuclear military forces required by

section 114(a).

(B) The annual report on the threat of attack on the

United States from weapons of mass destruction required by

section 114(c).

(C) The annual report on improvements of the financial

statements of the intelligence community for auditing purposes

required by section 114A.

(D) The annual report on counterdrug intelligence matters

required by section 826 of the Intelligence Authorization Act

for Fiscal Year 2003.
491 Sec. 507 NATIONAL SECURITY ACT OF 1947

(b) SEMIANNUAL REPORTS.—The dates for the submittal to the

congressional intelligence committees of the following semiannual

reports shall be the dates each year provided in subsection (c)(2):

(1) The semiannual reports on the Office of the Inspector

General of the Central Intelligence Agency required by section

17(d)(1) of the Central Intelligence Agency Act of 1949 (50

U.S.C. 403q(d)(1)).

(2) The semiannual reports on decisions not to prosecute

certain violations of law under the Classified Information Procedures Act (18 U.S.C. App.) as required by section 13 of that

Act.

(3) The semiannual reports on the activities of the Diplomatic Telecommunications Service Program Office (DTS–PO)

required by section 322(a)(6)(D)(ii) of the Intelligence Authorization Act for Fiscal Year 2001 (22 U.S.C. 7302(a)(6)(D)(ii)).

(4) The semiannual reports on the disclosure of information and consumer reports to the Federal Bureau of Investigation for counterintelligence purposes required by section

624(h)(2) of the Fair Credit Reporting Act (15 U.S.C.

1681u(h)(2)).

(5) The semiannual provision of information on requests

for financial information for foreign counterintelligence purposes required by section 1114(a)(5)(C) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(C)).

(6) The semiannual report on financial intelligence on terrorist assets required by section 118.

(c) SUBMITTAL DATES FOR REPORTS.—(1)(A) Except as provided

in subsection (d), each annual report listed in subsection (a)(1)

shall be submitted not later than February 1.

(B) Except as provided in subsection (d), each annual report

listed in subsection (a)(2) shall be submitted not later than December 1.

(2) Except as provided in subsection (d), each semiannual report listed in subsection (b) shall be submitted not later than February 1 and August 1.

(d) POSTPONEMENT OF SUBMITTAL.—(1) Subject to paragraph

(3), the date for the submittal of—

(A) an annual report listed in subsection (a)(1) may be

postponed until March 1;

(B) an annual report listed in subsection (a)(2) may be

postponed until January 1; and

(C) a semiannual report listed in subsection (b) may be

postponed until March 1 or September 1, as the case may be,

if the official required to submit such report submits to the congressional intelligence committees a written notification of such

postponement.

(2)(A) Notwithstanding any other provision of law and subject

to paragraph (3), the date for the submittal to the congressional intelligence committees of any report described in subparagraph (B)

may be postponed by not more than 30 days from the date otherwise specified in the provision of law for the submittal of such report if the official required to submit such report submits to the

congressional intelligence committees a written notification of such

postponement.
Sec. 507 NATIONAL SECURITY ACT OF 1947 492

(B) A report described in this subparagraph is any report on

intelligence or intelligence-related activities of the United States

Government that is submitted under a provision of law requiring

the submittal of only a single report.

(3)(A) The date for the submittal of a report whose submittal

is postponed under paragraph (1) or (2) may be postponed beyond

the time provided for the submittal of such report under such paragraph if the official required to submit such report submits to the

congressional intelligence committees a written certification that

preparation and submittal of such report at such time will impede

the work of officers or employees of the intelligence community in

a manner that will be detrimental to the national security of the

United States.

(B) A certification with respect to a report under subparagraph

(A) shall include a proposed submittal date for such report, and

such report shall be submitted not later than that date.

* * * * * * *
493

2. WAR POWERS RESOLUTION AND AUTHORIZATION

FOR USE OF MILITARY FORCE AGAINST IRAQ RESOLUTION OF 2002

a. War Powers Resolution

(Public Law 93–148; enacted Nov. 7, 1973)

JOINT RESOLUTION Concerning the war powers of Congress and the President.

Resolved by the Senate and House of Representatives of the

United States of America in Congress assembled,

SHORT TITLE

SECTION 1. This joint resolution may be cited as the ‘‘War

Powers Resolution’’.

PURPOSE AND POLICY

SEC. 2. ø50 U.S.C. 1541¿ (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the

United States and insure that the collective judgment of both the

Congress and the President will apply to the introduction of United

States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities

or in such situations.

(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all

laws necessary and proper for carrying into execution, not only its

own powers but also all other powers vested by the Constitution in

the Government of the United States, or in any department or officer thereof.

(c) The constitutional powers of the President as Commanderin-Chief to introduce United States Armed Forces into hostilities,

or into situations where imminent involvement in hostilities is

clearly indicated by the circumstances, are exercised only pursuant

to (1) a declaration of war, (2) specific statutory authorization, or

(3) a national emergency created by attack upon the United States,

its territories or possessions, or its armed forces.

CONSULTATION

SEC. 3. ø50 U.S.C. 1542¿ The President in every possible instance shall consult with Congress before introducing United

States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no
Sec. 4 WAR POWERS RESOLUTION 494

longer engaged in hostilities or have been removed from such situations.

REPORTING

SEC. 4. ø50 U.S.C. 1543¿ (a) In the absence of a declaration of

war, in any case in which United States Armed Forces are

introduced—

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace of waters of a foreign nation,

while equipped for combat, except for deployments which relate

solely to supply, replacement, repair, or training of such forces;

or

(3) in numbers which substantially enlarge United States

Armed Forces equipped for combat already located in a foreign

nation;

the President shall submit within 48 hours to the Speaker of the

House of Representatives and to the President pro tempore of the

Senate a report, in writing, setting forth—

(A) the circumstances necessitating the introduction of

United States Armed Forces;

(B) the constitutional and legislative authority under

which such introduction took place; and

(C) the estimated scope and duration of the hostilities or

involvement.

(b) The President shall provide such other information as the

Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to

the use of United States Armed Forces abroad.

(c) Whenever United States Armed Forces are introduced into

hostilities or into any situation described in subsection (a) of this

section, the President shall, so long as such armed forces continue

to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as

well as on the scope and duration of such hostilities or situation,

but in no event shall he report to the Congress less often than once

every six months.

CONGRESSIONAL ACTION

SEC. 5. ø50 U.S.C. 1544¿ (a) Each report submitted pursuant

to section 4(a)(1) shall be transmitted to the Speaker of the House

of Representatives and to the President pro tempore of the Senate

on the same calendar day. Each report so transmitted shall be referred to the Committee on Foreign Affairs of the House of Representatives and to the Committee on Foreign Relations of the Senate for appropriate action. If, when the report is transmitted, the

Congress has adjourned sine die or has adjourned for any period

in excess of three calendar days, the Speaker of the House of Representatives and the President pro tempore of the Senate, if they

deem it advisable (or if petitioned by at least 30 percent of the

membership of their respective Houses) shall jointly request the
495 Sec. 6 WAR POWERS RESOLUTION

President to convene Congress in order that it may consider the report and take appropriate action pursuant to this section.

(b) Within sixty calendar days after a report is submitted or is

required to be submitted pursuant to section 4(a)(1), whichever is

earlier, the President shall terminate any use of United States

Armed Forces with respect to which such report was submitted (or

required to be submitted), unless the Congress (1) has declared war

or has enacted a specific authorization for such use of United

States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President

determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States

Armed Forces requires the continued use of such armed forces in

the course of bringing about a prompt removal of such forces.

(c) Notwithstanding subsection (b), at any time that United

States Armed Forces are engaged in hostilities outside the territory

of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall

be removed by the President if the Congress so directs by concurrent resolution.

CONGRESSIONAL PRIORITY PROCEDURES FOR JOINT RESOLUTION OR

BILL

SEC. 6. ø50 U.S.C. 1545¿ (a) Any joint resolution or bill introduced pursuant to section 5(b) at least thirty calender days before

the expiration of the sixty-day period specified in such section shall

be referred to the Committee on Foreign Affairs of the House of

Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and such committee shall report on such

joint resolution or bill, together with its recommendations, not later

than twenty-four calendar days before the expiration of the sixtyday period specified in such section, unless such House shall otherwise determine by the yeas and nays.

(b) Any joint resolution or bill so reported shall become the

pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents), and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays.

(c) Such a joint resolution or bill passed by one House shall be

referred to the committee of the other House named in subsection

(a) and shall be reported out not later than fourteen calendar days

before the expiration of the sixty-day period specified in section

5(b). The joint resolution or bill so reported shall become the pending business of the House in question and shall be voted on within

three calendar days after it has been reported, unless such House

shall otherwise determine by yeas and nays.

(d) In the case of any disagreement between the two Houses

of Congress with respect to a joint resolution or bill passed by both

Houses, conferees shall be promptly appointed and the committee

of conference shall make and file a report with respect to such resolution or bill not later than four calendar days before the expiration
Sec. 7 WAR POWERS RESOLUTION 496

of the sixty-day period specified in section 5(b). In the event the

conferees are unable to agree within 48 hours, they shall report

back to their respective Houses in disagreement. Nothwithstanding

any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of

such reports, such report shall be acted on by both Houses not later

than the expiration of such sixty-day period.

CONGRESSIONAL PRIORITY PROCEDURES FOR CONCURRENT

RESOLUTION

SEC. 7. ø50 U.S.C. 1546¿ (a) Any concurrent resolution introduced pursuant to section 5(c) shall be referred to the Committee

on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and

one such concurrent resolution shall be reported out by such committee together with its recommendations within fifteen calendar

days, unless such House shall otherwise determine by the yeas and

nays.

(b) Any concurrent resolution so reported shall become the

pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents) and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays.

(c) Such a concurrent resolution passed by one House shall be

referred to the committee of the other House named in subsection

(a) and shall be reported out by such committee together with its

recommendations within fifteen calendar days and shall thereupon

become the pending business of such House and shall be voted

upon within three calendar days, unless such House shall otherwise determine by yeas and nays.

(d) In the case of any disagreement between the two Houses

of Congress with respect to a concurrent resolution passed by both

Houses, conferees shall be promptly appointed and the committee

of conference shall make and file a report with respect to such concurrent resolution within six calendar days after the legislation is

referred to the committee of conference. Notwithstanding any rule

in either House concerning the printing of conference reports in the

Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than

six calendar days after the conference report is filed. In the event

the conferees are unable to agree within 48 hours, they shall report

back to their respective Houses in disagreement.

INTERPRETATION OF JOINT RESOLUTION

SEC. 8. ø50 U.S.C. 1547¿ (a) Authority to introduce United

States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances

shall not be inferred—

(1) from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provisions contained in any appropriation Act, unless

such provision specifically authorizes the introduction of
497 Sec. 9 WAR POWERS RESOLUTION

United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this joint resolution;

or

(2) from any treaty heretofore or hereafter ratified unless

such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended

to constitute specific statutory authorization within the meaning of this joint resolution.

(b) Nothing in this joint resolution shall be construed to require any further specific statutory authorization to permit members of United States Armed Forces to participate jointly with

members of the armed forces of one or more foreign countries in

the headquarters operations of high-level military commands which

were established prior to the date of enactment of this joint resolution and pursuant to the United Nations Charter or any treaty

ratified by the United States prior to such date.

(c) For purposes of this joint resolution, the term ‘‘introduction

of United States Armed Forces’’ includes the assignment of members of such armed forces to command, coordinate, participate in

the movement of, or accompany the regular or irregular military

forces of any foreign country or government when such military

forces are engaged, or there exists an imminent threat that such

forces will become engaged, in hostilities.

(d) Nothing in this joint resolution—

(1) is intended to alter the constitutional authority of the

Congress or of the President, or the provisions of existing treaties; or

(2) shall be construed as granting any authority to the

President with respect to the introduction of United States

Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution.

SEPARABILITY CLAUSE

SEC. 9. ø50 U.S.C. 1548¿ If any provision of this joint resolution or the application thereof to any person or circumstances is

held invalid, the remainder of the joint resolution and the application of such provision to any other person or circumstance shall not

be affected thereby.

EFFECTIVE DATE

SEC. 10. This joint resolution shall take effect on the date of

its enactment [Nov. 7, 1973].
Sec. 2 IRAQ RESOLUTION 498

b. Authorization for Use of Military Force Against Iraq

Resolution of 2002

(Public Law 107–243; approved Oct. 16, 2002)

JOINT RESOLUTION To authorize the use of United States Armed Forces against

Iraq.

Resolved by the Senate and House of Representatives of the

United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the ‘‘Authorization for Use

of Military Force Against Iraq Resolution of 2002’’.

SEC. 2. ø50 U.S.C. 1541 note¿ SUPPORT FOR UNITED STATES DIPLOMATIC EFFORTS.

The Congress of the United States supports the efforts by the

President to—

(1) strictly enforce through the United Nations Security

Council all relevant Security Council resolutions regarding

Iraq and encourages him in those efforts; and

(2) obtain prompt and decisive action by the Security

Council to ensure that Iraq abandons its strategy of delay, evasion and noncompliance and promptly and strictly complies

with all relevant Security Council resolutions regarding Iraq.

SEC. 3. ø50 U.S.C. 1541 note¿ AUTHORIZATION FOR USE OF UNITED

STATES ARMED FORCES.

(a) AUTHORIZATION.—The President is authorized to use the

Armed Forces of the United States as he determines to be necessary and appropriate in order to—

(1) defend the national security of the United States

against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council

resolutions regarding Iraq.

(b) PRESIDENTIAL DETERMINATION.—In connection with the exercise of the authority granted in subsection (a) to use force the

President shall, prior to such exercise or as soon thereafter as may

be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives

and the President pro tempore of the Senate his determination

that—

(1) reliance by the United States on further diplomatic or

other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and

(2) acting pursuant to this joint resolution is consistent

with the United States and other countries continuing to take

the necessary actions against international terrorist and terrorist organizations, including those nations, organizations, or

persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.

(c) WAR POWERS RESOLUTION REQUIREMENTS.—

(1) SPECIFIC STATUTORY AUTHORIZATION.—Consistent with

section 8(a)(1) of the War Powers Resolution, the Congress de-
499 Sec. 4 IRAQ RESOLUTION

clares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the

War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS.—Nothing in

this joint resolution supersedes any requirement of the War

Powers Resolution.

SEC. 4. ø50 U.S.C. 1541 note¿ REPORTS TO CONGRESS.

(a) REPORTS.—The President shall, at least once every 60 days,

submit to the Congress a report on matters relevant to this joint

resolution, including actions taken pursuant to the exercise of authority granted in section 3 and the status of planning for efforts

that are expected to be required after such actions are completed,

including those actions described in section 7 of the Iraq Liberation

Act of 1998 (Public Law 105–338).

(b) SINGLE CONSOLIDATED REPORT.—To the extent that the

submission of any report described in subsection (a) coincides with

the submission of any other report on matters relevant to this joint

resolution otherwise required to be submitted to Congress pursuant

to the reporting requirements of the War Powers Resolution (Public

Law 93–148), all such reports may be submitted as a single consolidated report to the Congress.

(c) RULE OF CONSTRUCTION.—To the extent that the information required by section 3 of the Authorization for Use of Military

Force Against Iraq Resolution (Public Law 102–1) is included in

the report required by this section, such report shall be considered

as meeting the requirements of section 3 of such resolution.
500

3. NATIONAL EMERGENCIES ACT

(Public Law 94–412, approved Sept. 14, 1976)

AN ACT To terminate certain authorities with respect to national emergencies still

in effect, and to provide for orderly implementation and termination of future national emergencies.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That this Act may

be cited as the ‘‘National Emergencies Act’’.

TITLE I—TERMINATING EXISTING DECLARED

EMERGENCIES

SEC. 101. ø50 U.S.C. 1601¿ (a) All powers and authorities possessed by the President, any other officer or employee of the Federal Government, or any executive agency, as defined in section

105 of title 5, United States Code, as a result of the existence of

any declaration of national emergency in effect on the date of the

enactment of this Act [September 14, 1976] are terminated two

years from the date of such enactment. Such termination shall not

affect—

(1) any action taken or proceeding pending not finally concluded or determined on such date;

(2) any action or proceeding based on any act committed

prior to such date; or

(3) any rights or duties that matured or penalties that

were incurred prior to such date.

(b) For the purpose of this section, the words ‘‘any national

emergency in effect’’ means a general declaration of emergency

made by the President.

TITLE II—DECLARATIONS OF FUTURE NATIONAL

EMERGENCIES

SEC. 201. ø50 U.S.C. 1621¿ (a) With respect to Acts of Congress authorizing the exercise, during the period of a national

emergency, of any special or extraordinary power, the President is

authorized to declare such national emergency. Such proclamation

shall immediately be transmitted to the Congress and published in

the Federal Register.

(b) Any provisions of law conferring powers and authorities to

be exercised during a national emergency shall be effective and remain in effect (1) only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency, and (2) only in accordance with this Act. No law enacted

after the date of enactment of this Act shall supersede this title unless it does so in specific terms, referring to this title, and declaring

that the new law supersedes the provisions of this title.
501 Sec. 202 NATIONAL EMERGENCIES ACT

SEC. 202. ø50 U.S.C. 1622¿ (a) Any national emergency declared by the President in accordance with this title shall terminate if—

(1) there is enacted into law a joint resolution terminating

the emergency; or

(2) the President issues a proclamation terminating the

emergency.

Any national emergency declared by the President shall be terminated on the date specified in any joint resolution referred to in

clause (1) or on the date specified in a proclamation by the President terminating the emergency as provided in clause (2) of this

subsection, whichever date is earlier, and any powers or authorities

exercised by reason of said emergency shall cease to be exercised

after such specified date, except that such termination shall not

affect—

(A) any action taken or proceeding pending not finally concluded or determined on such date;

(B) any action or proceeding based on any act committed

prior to such date; or

(C) any rights or duties that matured or penalties that

were incurred prior to such date.

(b) Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall

meet to consider a vote on a joint resolution to determine whether

that emergency shall be terminated.

(c)(1) A joint resolution to terminate a national emergency declared by the President shall be referred to the appropriate committee of the House of Representatives or the Senate, as the case

may be. One such joint resolution shall be reported out by such

committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to

such committee, unless such House shall otherwise determine by

the yeas and nays.

(2) Any joint resolution so reported shall become the pending

business of the House in question (in the case of the Senate the

time for debate shall be equally divided between the proponents

and the opponents) and shall be voted on within three calendar

days after the day on which such resolution is reported, unless

such House shall otherwise determine by yeas and nays.

(3) Such a joint resolution passed by one House shall be referred to the appropriate committee of the other House and shall

be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee and shall thereupon become

the pending business of such House and shall be voted upon within

three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and

nays.

(4) In the case of any disagreement between the two Houses

of Congress with respect to a joint resolution passed by both

Houses, conferees shall be promptly appointed and the committee

of conference shall make and file a report with respect to such joint

resolution within six calendar days after the day on which man-
Sec. 301 NATIONAL EMERGENCIES ACT 502

agers on the part of the Senate and the House have been appointed. Notwithstanding any rule in either House concerning the

printing of conference reports or concerning any delay in the consideration of such reports, such report shall be acted on by both

Houses not later than six calendar days after the conference report

is filed in the House in which such report is filed first. In the event

the conferees are unable to agree within forty-eight hours, they

shall report back to their respective Houses in disagreement.

(5) Paragraphs (1)–(4) of this subsection, subsection (b) of this

section, and section 502(b) of this Act are enacted by Congress—

(A) as an exercise of the rulemaking power of the Senate

and the House of Representatives, respectively, and as such

they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be

followed in the House in the case of resolutions described by

this subsection; and they supersede other rules only to the extent that they are inconsistent therewith; and

(B) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to

the same extent as in the case of any other rule of that House.

(d) Any national emergency declared by the President in accordance with this title, and not otherwise previously terminated,

shall terminate on the anniversary of the declaration of that emergency if, within the ninety-day period prior to each anniversary

date, the President does not publish in the Federal Register and

transmit to the Congress a notice stating that such emergency is

to continue in effect after such anniversary.

TITLE III—EXERCISE OF EMERGENCY POWERS AND

AUTHORITIES

SEC. 301. ø50 U.S.C. 1631¿ When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless

and until the President specifies the provisions of law under which

he proposes that he, or other officers will act. Such specification

may be made either in the declaration of a national emergency, or

by one or more contemporaneous or subsequent Executive orders

published in the Federal Register and transmitted to the Congress.

TITLE IV—ACCOUNTABILITY AND REPORTING

REQUIREMENTS OF THE PRESIDENT

SEC. 401. ø50 U.S.C. 1641¿ (a) When the President declares a

national emergency, or Congress declares war, the President shall

be responsible for maintaining a file and index of all significant orders of the President, including Executive orders and proclamations, and each Executive agency shall maintain a file and index

of all rules and regulations, issued during such emergency or war

issued pursuant to such declarations.

(b) All such significant orders of the President, including Executive orders, and such rules and regulations shall be transmitted

to the Congress promptly under means to assure confidentiality

where appropriate.
503 Sec. 502 NATIONAL EMERGENCIES ACT

1So in law. The semicolon in paragraph (5) should be a period.

(c) When the President declares a national emergency or Congress declares war, the President shall transmit to Congress, within ninety days after the end of each six-month period after such

declarations, a report on the total expenditures incurred by the

United States Government during such six-month period which are

directly attributable to the exercise of powers and authorities conferred by such declaration. Not later than ninety days after the termination of each such emergency or war, the President shall transmit a final report on all such expenditures.

TITLE V—REPEAL AND CONTINUATION OF CERTAIN

EMERGENCY POWER AND OTHER STATUTES

* * * * * * *

SEC. 502. ø50 U.S.C. 1651¿ (a) The provisions of this Act shall

not apply to the following provisions of law, the powers and authorities conferred thereby, and actions taken thereunder:

(1) Act of June 30, 1949 (41 U.S.C. 252);

(2) Section 3477 of the Revised Statutes, as amended (31

U.S.C. 203);

(3) Section 3737 of the Revised Statutes, as amended (41

U.S.C. 15);

(4) Public Law 85–804 (Act of Aug. 28, 1958, 72 Stat. 972;

50 U.S.C. 1431 et seq.);

(5) Section 2304(a)(1) of title 10, United States Code; 1

(b) Each committee of the House of Representatives and the

Senate having jurisdiction with respect to any provision of law referred to in subsection (a) of this section shall make a complete

study and investigation concerning that provision of law and make

a report, including any recommendations and proposed revisions

such committee may have, to its respective House of Congress

within two hundred and seventy days after the date of enactment

of this Act.
504

1The National Defense Act of 1916 was repealed by section 53 of the Act of August 10, 1956

(70A Stat. 678).

4. MILITARY SELECTIVE SERVICE ACT

(50 U.S.C. App. 451 et seq. Headings in brackets ø ¿ are not part of the Act but

have been included for the convenience of the reader)

TITLE I ø—MILITARY SELECTIVE SERVICE¿

øSHORT TITLE; POLICY AND INTENT OF CONGRESS¿

SECTION 1. ø50 U.S.C. App. 451¿ (a) This Act may be cited as

the ‘‘Military Selective Service Act.’’

(b) The Congress hereby declares that an adequate armed

strength must be achieved and maintained to insure the security

of this Nation.

(c) The Congress further declares that in a free society the obligations and privileges of serving in the armed forces and the reserve components thereof should be shared generally, in accordance

with a system of selection which is fair and just, and which is consistent with the maintenance of an effective national economy.

(d) The Congress further declares, in accordance with our traditional military policy as expressed in the National Defense Act of

1916, as amended, 1 that it is essential that the strength and organization of the National Guard, both Ground and Air, as an integral part of the first line defenses of this Nation, be at all times

maintained and assured.

To this end, it is the intent of the Congress that whenever

Congress shall determine that units and organizations are needed

for the national security in excess of those of the Regular components of the Ground Forces and the Air Forces, and those in active

service under this title, the National Guard of the United States,

both Ground and Air, or such part thereof as may be necessary, together with such units of the Reserve components as are necessary

for a balanced force, shall be ordered to active Federal service and

continued therein so long as such necessity exists.

(e) The Congress further declares that adequate provision for

national security requires maximum effort in the fields of scientific

research and development, and the fullest possible utilization of

the Nation’s technological, scientific, and other critical manpower

resources.

(f) The Congress further declares that the Selective Service

System should remain administratively independent of any other

agency, including the Department of Defense.

SEC. 2. øRepealed by section 53 of the Act of August 10, 1956

(70A Stat. 678)¿
505 Sec. 4 MILITARY SELECTIVE SERVICE ACT

1The text of Presidential Proclamation 4771 providing for registration under this section,

dated July 2, 1980, follows this Act.

øREGISTRATION¿

SEC. 3. (a) ø50 U.S.C. App. 453¿ Except as otherwise provided

in this title, it shall be the duty of every male citizen of the United

States, and every other male person residing in the United States,

who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty six, to present

himself for and submit to registration at such time or times and

place or places, and in such manner, as shall be determined by

proclamation of the President and by rules and regulations prescribed hereunder. The provisions of this section shall not be applicable to any alien lawfully admitted to the United States as a nonimmigrant under section 101(a)(15) of the Immigration and Nationality Act, as amended (66 Stat. 163; 8 U.S.C. 1101), for so long as

he continues to maintain a lawful nonimmigrant status in the

United States. 1

(b) Regulations prescribed pursuant to subsection (a) may require that persons presenting themselves for and submitting to registration under this section provide, as part of such registration,

such identifying information (including date of birth, address, and

social security account number) as such regulations may prescribe.

TRAINING AND SERVICE

øTraining and Service in General¿

SEC. 4. ø50 U.S.C. App. 454¿ (a) Except as otherwise provided

in this title, every person required to register pursuant to section

3 of this title who is between the ages of eighteen years and six

months and twenty-six years, at the time fixed for his registration,

or who attains the age of eighteen years and six months after having been required to register pursuant to section 3 of this title, or

who is otherwise liable as provided in section 6(h) of this title, shall

be liable for training and service in the Armed Forces of the United

States: Provided, That each registrant shall be immediately liable

for classification and examination, and shall, as soon as practicable

following his registration, be so classified and examined, both physically and mentally, in order to determine his availability for induction for training and service in the Armed Forces: Provided further,

That, notwithstanding any other provision of law, any registrant

who has failed or refused to report for induction shall continue to

remain liable for induction and when available shall be immediately inducted. The President is authorized, from time to time,

whether or not a state of war exists, to select and induct into the

Armed Forces of the United States for training and service in the

manner provided in this title (including but not limited to selection

and induction by age group or age groups) such number of persons

as may be required to provide and maintain the strength of the

Armed Forces.

At such time as the period of active service in the Armed

Forces required under this title of persons who have not attained

the nineteenth anniversary of the day of their birth has been re-
Sec. 4 MILITARY SELECTIVE SERVICE ACT 506

duced or eliminated pursuant to the provisions of section 4(k) of

this title, and except as otherwise provided in this title, every person who is required to register under this title and who has not attained the nineteenth anniversary of the day of his birth on the

date such period of active service is reduced or eliminated or who

is otherwise liable as provided in section 6(h) of this title, shall be

liable for training in the National Security Training Corps: Provided, That persons deferred under the provisions of section 6 of

this title shall not be relieved for liability for induction into the National Security Training Corps solely by reason of having exceeded

the age of nineteen years during the period of such deferment. The

President is authorized, from time to time, whether or not a state

of war exists, to select and induct for training in the National Security Training Corps as hereinafter provided such number of persons

as may be required to further the purposes of this title.

No persons shall be inducted into the Armed Forces for training and service or shall be inducted for training in the National Security Training Corps under this title until his acceptability in all

respects, including his physical and mental fitness, has been satisfactorily determined under standards prescribed by the Secretary

of Defense: Provided, That the minimum standards for physical acceptability established pursuant to this subsection shall not be

higher than those applied to persons inducted between the ages of

18 and 26 in January 1945: Provided further, That the passing requirement for the Armed Forces Qualification Test shall be fixed

at a percentile score of 10 points: And provided further, That except

in time of war or national emergency declared by the Congress the

standards and requirements fixed by the preceding two provisos

may be modified by the President under such rules and regulations

as he may prescribe.

No persons shall be inducted for such training and service

until adequate provision shall have been made for such shelter,

sanitary facilities, water supplies, heating and lighting arrangements, medical care, and hospital accommodations for such persons

as may be determined by the Secretary of Defense or the Secretary

of Homeland Security to be essential to the public and personal

health.

The persons inducted into the Armed Forces for training and

service under this title shall be assigned to stations or units of such

forces. Persons inducted into the land forces of the United States

pursuant to this title shall be deemed to be members of the Army

of the United States; persons inducted into the naval forces of the

United States pursuant to this title shall be deemed to be members

of the United States Navy or United States Marine Corps or the

United States Coast Guard, as appropriate; and persons inducted

into the air forces of the United States pursuant to this title shall

be deemed to be members of the Air Force of the United States.

Every person inducted into the Armed Forces pursuant to the

authority of this subsection after the date of enactment of the 1951

Amendments to the Universal Military Training and Service Act

shall, following his induction, be given full and adequate military

training for service in the armed force into which he is inducted for

a period of not less than twelve weeks, and no such person shall,

during this twelve weeks period, be assigned for duty at any instal-
507 Sec. 4 MILITARY SELECTIVE SERVICE ACT

1Former undesignated paragraph preceding this paragraph terminated as of July 1, 1973,

pursuant to section 9 of Public Law 85–62, June 27, 1957 (71 Stat. 208), as last amended by

section 103 of Public Law 92–129, September 28, 1971 (85 Stat. 355).

lation located on land outside the United States, its Territories and

possessions (including the Canal Zone): Provided, That no funds

appropriated by the Congress shall be used for the purpose of

transporting or maintaining in violation of the provisions of this

paragraph any person inducted into, or enlisted, appointed, or ordered to active duty in, the Armed Forces under the provisions of

this title.

No 1 person, without his consent, shall be inducted for training

and service in the Armed Forces or for training in the National Security Training Corps under this title, except as otherwise provided

herein, after he has attained the twenty-sixth anniversary of the

day of his birth.

øLength of Service¿

(b) Each person inducted into the Armed Forces under the provisions of subsection (a) of this section shall serve on active training and service for a period of twenty-four consecutive months, unless sooner released, transferred, or discharged in accordance with

procedures prescribed by the Secretary of Defense (or the Secretary

of Homeland Security with respect to the United States Coast

Guard) or as otherwise prescribed by subsection (d) of section 4 of

this title. The Secretaries of the Army, Navy, and Air Force, with

the approval of the Secretary of Defense (and the Secretary of

Homeland Security with respect to the United States Coast Guard),

may provide, by regulations which shall be as nearly uniform as

practicable, for the release from training and service in the armed

forces prior to serving the periods required by this subsection of individuals who volunteered for and are accepted into organized

units of the Army National Guard and Air National Guard and

other reserve compoments.

øEnlistment; Reservists’ Active Duty; Volunteers for Inductions;

N.S.T.C.¿

(c)(1) Under the provisions of applicable laws and regulations

any person between the ages of eighteen years and six months and

twenty-six years shall be offered an opportunity to enlist in the

regular army for a period of service equal to that prescribed in subsection (b) of this section: Provided, That, notwithstanding the provisions of this or any other Act, any person so enlisting shall not

have his enlistment extended without his consent until after a declaration of war or national emergency by the Congress after the

date of enactment of the 1951 Amendments to the Universal Military Training and Service Act.

(2) Any enlisted member of any reserve component of the

Armed Forces may, during the effective period of this Act, apply for

a period of service equal to that prescribed in subsection (b) of this

section and his application shall be accepted: Provided, That his

services can be effectively utilized and that his physical and mental

fitness for such service meet the standards prescribed by the head

of the department concerned: Provided further, That active service
Sec. 4 MILITARY SELECTIVE SERVICE ACT 508

performed pursuant to this section shall not prejudice his status as

such member of such reserve component: And provided further,

That any person who was a member of a reserve component on

June 25, 1950, and who thereafter continued to serve satisfactorily

in such reserve component, shall, if his application for active duty

made pursuant to this paragraph is denied, be deferred from induction under this title until such time as he is ordered to active duty

or ceases to serve satisfactorily in such reserve component.

(3) Within the limits of the quota determined under section

5(b) for the subdivision in which he resides, any person, between

the ages of eighteen and twenty-six, shall be afforded an opportunity to volunteer for induction into the Armed Forces of the

United States for the training and service prescribed in subsection

(b), but no person who so volunteers shall be inducted for such

training and service so long as he is deferred after classification.

(4) Within the limits of the quota determined under section

5(b) for the subdivision in which he resides, any person after attaining the age of seventeen shall with the written consent of his

parents or guardian be afforded an opportunity to volunteer for induction into the Armed Forces of the United States for the training

and service prescribed in subsection (b).

(5) Within the limits of the quota determined under section

5(b) for the subdivision in which he resides, at such time as induction into the National Security Training Corps is authorized pursuant to the provisions of this title, any person after attaining the

age of seventeen shall with the written consent of his parents or

guardian be afforded an opportunity to volunteer for induction into

the National Security Training Corps for the training prescribed in

subsection (k) of section 4 of this title.

øTransfer to Reserve Component; Period of Service¿

(d)(1) Each person who hereafter and prior to the enactment of

the 1951 Amendments to the Universal Training and Service Act

is inducted, enlisted, or appointed and serves for a period of less

than three years in one of the armed forces and meets the qualifications for enlistment or appointment in a reserve component of

the armed force in which he serves, shall be transferred to a reserve component of such armed force, and until the expiration of

a period of five years after such transfer, or until he is discharged

from such reserve component, whichever occurs first, shall be

deemed to be a member of such reserve component and shall be

subject to such additional training and service as may now or hereafter be prescribed by law for such reserve component: Provided,

That any such person who completes at least twenty-one months

of service in the armed forces and who thereafter serves satisfactorily (1) on active duty in the armed forces under a voluntary extension for a period of at least one year, which extension is hereby

authorized, or (2) in an organized unit of any reserve component

of any of the armed forces for a period of at least thirty-six consecutive months, shall except in time of war or national emergency declared by the Congress, be relieved from any further liability under

this subsection to serve in any reserve component of the armed

forces of the United States, but nothing in this subsection shall be
509 Sec. 4 MILITARY SELECTIVE SERVICE ACT

1 Reference is to a former subsection (g) authorizing one-year enlistments in the armed services by male persons between 18 and 19 years of age that was repealed by section 1(h) of the

Act of June 19, 1951 (65 Stat. 80). Present subsection (g) was added by section 1(2)(b) of Public

Law 90–40, June 30, 1967 (81 Stat. 100).

construed to prevent any such person, while in a reserve component of such forces, from being ordered or called to active duty in

such forces.

(2) Each person who hereafter and prior to the enactment of

the 1951 Amendments to the Universal Military Training and

Service Act is enlisted under the provisions of subsection (g) of this

section 1 and who meets the qualifications for enlistment or appointment in a reserve component of the armed forces shall, upon

discharge from such enlistment under honorable conditions, be

transferred to a reserve component of the armed forces of the

United States and shall serve therein for a period of six years or

until sooner discharged. Each such person shall, so long as he is

a member of such reserve component, be liable to be ordered to active duty, but except in time of war or national emergency declared

by the Congress no such person shall be ordered to active duty,

without his consent and except as hereinafter provided, for more

than one month in any year. In case the Secretary of the Army, the

Secretary of the Navy, or the Secretary of the Air Force determines

that enlistment, enrollment, or appointment in, or assignment to,

an organized unit of a reserve component or an officers’ training

program of the armed force in which he served is available to, and

can without undue hardship be filled by, any such person, it shall

be the duty of such person to enlist, enroll, or accept appointment

in, or accept assignment to, such organized unit or officers’ training

program and serve satisfactorily therein for a period of four years.

Any such person who fails or refuses to perform such duty may be

ordered to active duty, without his consent, for an additional period

of not more than twelve consecutive months. Any such person who

enlists or accepts appointment in any such organized unit and

serves satisfactorily therein for a period of four years shall, except

in time of war or national emergency declared by the Congress, be

relieved from any further liability under this subsection to serve in

any reserve component of the armed forces of the United States,

but nothing in this subsection shall be construed to prevent any

such person, while in a reserve component of such forces, from

being ordered or called to active duty in such forces. The Secretary

of Defense is authorized to prescribe regulations governing the

transfer of such persons within and between reserve components of

the armed forces and determining, for the purpose of the requirements of the foregoing provisions of this paragraph, the credit to

be allowed any person so transferring for his previous service in

one or more reserve components.

(3) Each person who, subsequent to June 19, 1951, and on

or before August 9, 1955, is inducted, enlisted, or appointed, under

any provision of law, in the Armed Forces, including the reserve

components thereof, or in the National Security Training Corps,

prior to attaining the twenty-sixth anniversary of his birth, shall

be required to serve on active training and service in the Armed

Forces or in training in the National Security Training Corps, and

in a reserve component, for a total period of eight years, unless
Sec. 4 MILITARY SELECTIVE SERVICE ACT 510

1The Act of March 7, 1942 (popularly known as the ‘‘Missing Persons Act’’) was repealed by

section 8(a) of Public Law 89–544, September 6, 1966 (80 Stat. 632), and was reenacted as subchapter VII of chapter 55 of title 5, United States Code, and as chapter 10 of title 37, United

States Code.

sooner discharged on the grounds of personal hardship, in accordance with regulations and standards prescribed by the Secretary of

Defense (or the Secretary of Transportation with respect to the

United States Coast Guard). Each such person, on release from active training and service in the Armed Forces or from training in

the National Security Training Corps, if physically and mentally

qualified, shall be transferred to a reserve component of the Armed

Forces, and shall serve therein for the remainder of the period

which he is required to serve under this paragraph and shall be

deemed to be a member of the reserve component during that period. If the Secretary of the Army, the Secretary of the Navy, or

the Secretary of the Air Force, or the Secretary of Transportation

with respect to the United States Coast Guard, determines that enlistment, enrollment, or appointment in, or assignment to, an organized unit of a reserve component or an officers’ training program

of the armed force in which he served is available to, and can,

without undue personal hardship, be filled by such person, that

person shall enlist, enroll, or accept appointment in, or accept assignment to, the organized unit or officers’ training program, and

serve satisfactorily therein.

øPay and Allowances¿

(e) With respect to the persons inducted for training and service under this title there shall be paid, allowed, and extended the

same pay, allowances, pensions, disability and death compensation,

and other benefits as are provided by law in the case of other enlisted men of like grades and length of service of that component

of the armed forces to which they are assigned. Section 3 of the Act

of July 25, 1947 (Public Law 239, Eightieth Congress), is hereby

amended by deleting therefrom the following: ‘‘Act of March 7, 1942

(56 Stat. 143–148, ch. 166), as amended’’. The Act of March 7, 1942

(56 Stat. 143–148), as amended, 1 is hereby made applicable to persons inducted into the armed forces pursuant to this title.

øCivilian Compensation¿

(f) Notwithstanding any other provision of law, any person who

is inducted into the armed forces under this Act and who, before

being inducted, was receiving compensation from any person may,

while serving under that induction, receive compensation from that

person.

øNational Security Council¿

(g) The National Security Council shall periodically advise the

Director of the Selective Service System and coordinate with him

the work of such State and local volunteer advisory committees

which the Director of Selective Service may establish, with respect

to the identification, selection, and deferment of needed professional and scientific personnel and those engaged in, and preparing

for, critical skills and other essential occupations. In the perform-
511 Sec. 4 MILITARY SELECTIVE SERVICE ACT

ance of its duties under this subsection the National Security

Council shall consider the needs of both the Armed Forces and the

civilian segment of the population.

(h) øRepealed by section 1(h) of the Act of June 19, 1951 (65

Stat. 80)¿

(i) øSubsection (i) terminated as of July 1, 1957, pursuant to

section 7 of the Act of September 9, 1950 (64 Stat. 828), as last

amended by section 8 of Public Law 85–62, June 27, 1957 (71 Stat.

208)¿

(j) øSubsection (j) terminated as of July 1, 1957, pursuant to

section 7 of the Act of September 9, 1950 (64 Stat. 828), as last

amended by section 8 of Public Law 85–62, June 27, 1957 (71 Stat.

208)¿

øReduction in Period of Service; Operation of National Security

Training Commission and Corps¿

(k)(1) Upon a finding by him that such action is justified by the

strength of the Armed Forces in the light of international conditions, the President, upon recommendations of the Secretary of Defense, is authorized, by Executive order, which shall be uniform in

its application to all persons inducted under this title but which

may vary as to age groups, to provide for (A) decreasing periods of

service under this title but in no case to a lesser period of time

than can be economically utilized, or (B) eliminating periods of

service required under this title.

(2) Whenever the Congress shall by concurrent resolution

declare—

(A) that the period of active service required of any age

group or groups of persons inducted under this title should be

decreased to any period less than twenty-four months which

may be designated in such resolution; or

(B) that the period of active service required of any age

group or groups of persons inducted under this title should be

eliminated,

the period of active service in the Armed Forces of the age group

or groups designed in any such resolution shall be so decreased or

eliminated, as the case may be. Whenever the period of active service required under this title of persons who have not attained the

nineteenth anniversary of the day of their birth has been reduced

or eliminated by the President or as a result of the adoption of a

concurrent resolution of the Congress in accordance with the foregoing provision of this section, all individuals then or thereafter liable for registration under this title who on that date have not attained the nineteenth anniversary of the day of their birth and

have not been inducted into the Armed Forces shall be liable, effective on such date, for induction into the National Security Training

Corps as hereinafter established for initial military training for a

period of six months.
Sec. 4 MILITARY SELECTIVE SERVICE ACT 512

1 Reference is to the National Security Training Commission, which expired June 30, 1957.

(3) øRepealed by section 8(a) of Public Law 89–554, September

6, 1966 (80 Stat. 656)¿

(4) øRepealed by section 8(a) of Public Law 89–554, September

6, 1966 (80 Stat. 656)¿

(5) The Commission 1 shall, subject to the direction of the

President, exercise general supervision over the training of the National Security Training Corps, which training shall be basic military training. The Commission shall establish such policies and

standards with respect to the conduct of the training of members

of the National Security Training Corps as are necessary to carry

out the purposes of this Act. The Commission shall make adequate

provisions for the moral and spiritual welfare of members of the

National Security Training Corps. The Secretary of Defense shall

designate the military departments to carry out such training.

Each military department so designated shall carry out such military training in accordance with the policies and standards of the

Commission. The military department or departments so designated to carry out such military training shall, subject to the approval of the Secretary of Defense, and subject to the policies and

standards established by the Commission, determine the type or

types of basic military training to be given to members of the National Security Training Corps.

(6) øRepealed by section 8(a) of Public Law 89–554, September

6, 1966 (80 Stat. 656)¿

(7) Not later than four months following confirmation of the

members of the Commission, the Commission shall submit to the

Congress legislative recommendations which shall include, but not

be limited to—

(A) a broad outline for a program deemed by the Commission and approved by the Secretary of Defense to be appropriate to assure that the training carried out under the provisions of this Act shall be of a military nature, but nothing contained in this paragraph shall be construed to grant to the

Commission the authority to prescribe the basic type or types

of military training to be given members of the National Security Training Corps;

(B) measures for the personal safety, health, welfare and

morals of members of the National Security Training Corps;

(C) a code of conduct, together with penalties for violation

thereof;

(D) measures deemed necessary to implement the policies

and standards established under the provisions of paragraph

(5) of this subsection; and

(E) disability and death benefits and other benefits, and

the obligations, duties, liabilities, and responsibilities, to be

granted to or imposed upon members of the National Security

Training Corps.
513 Sec. 4 MILITARY SELECTIVE SERVICE ACT

All legislative recommendations submitted under this paragraph

shall be referred to the Committees on Armed Services of the two

Houses, and each of such committees shall, not later than the expiration of the first period of 45 calendar days of continuous sessions

of the Congress, following the date on which the recommendations

provided for in this paragraph are transmitted to the Congress, report thereon to its House: Provided, That any bill or resolution reported with respect to such recommendations shall be privileged

and may be called up by any member of either House but shall be

subject to amendments as if it were not so privileged.

(8) No person shall be inducted into the National Security

Training Corps until after—

(A) a code of conduct, together with penalties for violation

thereof, and measures providing for disability and death benefits have been enacted into law; and

(B) such other legislative recommendations as are provided

for in paragraph (7) shall have been considered and such recommendations or any portion thereof shall have been enacted

with or without amendments into law; and

(C) the period of service required under this title of persons who have not attained the nineteenth anniversary of the

day of their birth has been reduced or eliminated by the President or as a result of the adoption of a concurrent resolution

of the Congress in accordance with paragraph (2) of this subsection.

(9) Six months following the commencement of induction of

persons into the National Security Training Corps, and semiannually thereafter, the Commission shall submit to the Congress a

comprehensive report describing in detail the operation of the National Security Training Corps, including the number of persons inducted therein, a list of camps and stations at which training is

being conducted, a report on the number of deaths and injuries occurring during such training and the causes thereof, an estimate

of the performance of the persons inducted therein, including an

analysis of the disciplinary problems encountered during the preceding six months, the number of civilian employees of the Commission and the administrative costs of the Commission. Simultaneously, there shall be submitted to the Congress by the Secretary

of Defense a report setting forth an estimate of the value of the

training conducted during the preceding six months, the cost of the

training program chargeable to the appropriations made to the Department of Defense, and the number of personnel of the Armed

Forces directly engaged in the conduct of such training.

(10) Each person inducted into the National Security Training Corps shall be compensated at the monthly rate of $30: Provided,

however, That each such person, having a dependent or dependents

shall be entitled to receive a dependency allowance equal to the

basic allowance for housing provided for persons in pay grade E–

1 under section 403 of title 37, United States Code, plus $40 so

long as such person has in effect an allotment equal to the amount

of such dependency allowance for the support of the dependent or

dependents on whose account the allowance is claimed.

(11) No person inducted into the National Security Training

Corps shall be assigned for training at an installation located on
Sec. 5 MILITARY SELECTIVE SERVICE ACT 514

land outside the continental United States, except that residents of

Territories and possessions of the United States may be trained in

the Territory or possession from which they were inducted.

(l) øSubsection (l) terminated as of July 1, 1973, pursuant to

section 9 of Public Law 85–62, June 27, 1957 (71 Stat. 208), as last

amended by section 103 of Public Law 92–129, September 28, 1971

(85 Stat. 355)¿

SELECTION

øManner of Selection for Training and Service¿

SEC. 5. ø50 U.S.C. App. 455¿ (a)(1) The selection of persons for

training and service under section 4 shall be made in an impartial

manner, under such rules and regulations as the President may

prescribe, from the persons who are liable for such training and

service and who at the time of selection are registered and classified, but not deferred or exempted: Provided, That in the selection

of persons for training and service under this title, and in the interpretation and execution of the provisions of this title, there shall

be no discrimination against any person on account of race or color:

Provided further, That in the classification of registrants within the

jurisdiction of any local board, the registrants of any particular registration may be classified, in the manner prescribed by and in accordance with rules and regulations prescribed by the President,

before, together with, or after the registrants of any prior registration or registrations; and in the selection for induction of persons

within the jurisdiction of any local board and within any particular

classification, persons who were registered at any particular registration may be selected, in the manner prescribed by and in accordance with rules and regulations prescribed by the President,

before, together with, or after persons who were registered at any

prior registration or registrations: And provided further, That nothing herein shall be construed to prohibit the selection or induction

of persons by age group or groups under rules and regulations prescribed by the President: And provided further, That—

(1) no local board shall order for induction for training and

service in the Armed Forces of the United States any person

who has not attained the age of nineteen unless there is not

within the jurisdiction of such local board a sufficient number

of persons who are deemed by such local board to be available

for induction and who have attained the age of nineteen to enable such local board to meet a call for men which it has been

ordered to furnish for induction;

(2) no local board shall order for induction for training and

service in the Armed Forces of the United States any person

who has not attained the age of nineteen, if there is any person

within the jurisdiction of such local board who (i) is as much

as ninety days older, (ii) has not attained the age of nineteen,

and (iii) is deemed by the local board to be available for induction; and

(3) no local board shall order for induction for training and

service in the Armed Forces of the United States an alien un-
515 Sec. 6 MILITARY SELECTIVE SERVICE ACT

less such alien shall have resided in the United States for one

year.

(2) øRepealed by section 2 of Public Law 91–124, November 26,

1969 (85 Stat. 220)¿

øQuotas¿

(b) Quotas of men to be inducted for training and service under

this title shall be determined for each State, Territory, possession,

and the District of Columbia, and for subdivisions thereof, on the

basis of the actual number of men in the several States, Territories, possessions, and the District of Columbia, and the subdivisions thereof, who are liable for such training and service but who

are not deferred after classification, except that credits shall be

given in fixing such quotas for residents of such subdivisions who

are in the armed forces of the United States on the date fixed for

determining such quotas. After such quotas are fixed, credits shall

be given in filling such quotas for residents of such subdivision who

subsequently become members of such forces. Until the actual

numbers necessary for determining the quotas are known, the

quotas may be based on estimates, and subsequent adjustments

therein shall be made when such actual numbers are known. All

computations under this subsection shall be made in accordance

with such rules and regulations as the President may prescribe.

(c) øSubsection (c) terminated as of July 1, 1973, pursuant to

section 9 of Public Law 85–62, June 27, 1957 (71 Stat. 208), as last

amended by section 103 of Public Law 92–129, September 28, 1971.

(85 Stat. 355)¿

øRandom Selection¿

(d) Whenever the President has provided for the selection of

persons for training and service in accordance with random selection under subsection (a) of this section, calls for induction may be

placed under such rules and regulations as he may prescribe, notwithstanding the provisions of subsection (b) of this section.

øLimitation of Number of Inductees¿

(e) Notwithstanding any other provision of this Act, not more

than 130,000 persons may be inducted into the Armed Forces

under this Act in the fiscal year ending June 30, 1972, and not

more than 140,000 in the fiscal year ending June 30, 1973, unless

a number greater than that authorized in this subsection for such

fiscal year or years is authorized by a law enacted after the date

of enactment of this subsection.

DEFERMENT AND EXEMPTIONS

øExemptions from Registration and Service¿

SEC. 6. ø50 U.S.C. App. 456¿ (a)(1) Commissioned officers, warrant officers, pay clerks, enlisted men, and aviation cadets of the

Regular Army, the Navy, the Air Force, the Marine Corps, the
Sec. 6 MILITARY SELECTIVE SERVICE ACT 516

Coast Guard, and the Environmental Science Services Administration; cadets, United States Military Academy; midshipmen, United

States Naval Academy; cadets, United States Air Force Academy;

cadets, United States Coast Guard Academy; midshipmen, Merchant Marine Reserve, United States Naval Reserves; students enrolled in an officer procurement program at military colleges the

curriculum of which is approved by the Secretary of Defense; members of reserve components of the Armed Forces, and the Coast

Guard, while on active duty; and foreign diplomatic representatives, technical attache ́s of foreign embassies and legations, consuls

general, consuls, vice consuls and other consular agents of foreign

countries who are not citizens of the United States, and members

of their families, and persons in other categories to be specified by

the President who are not citizens of the United States, shall not

be required to be registered under section 3 and shall be relieved

from liability for training and service under section 4, except that

aliens admitted for permanent residence in the United States shall

not be so exempted: Provided, That any alien lawfully admitted for

permanent residence as defined in paragraph (20) of section 101(a)

of the Immigration and Nationality Act, as amended (66 Stat. 163,

8 U.S.C. 1101), and who by reason of occupational status is subject

to adjustment to nonimmigrant status under paragraph (15)(A),

(15)(E), or (15)(G) of such section 101(a) but who executes a waiver

in accordance with section 247(b) of that Act of all rights, privileges, exemptions, and immunities which would otherwise accrue to

him as a result of that occupational status, shall be subject to registration under section 3 of this Act, but shall be deferred from induction for training and service for so long as such occupational

status continues. Any person who subsequent to June 24, 1948,

serves on active duty for a period of not less than twelve months

in the armed forces of a nation with which the United States is associated in mutual defense activities as defined by the President,

may be exempted from training and service, but not from registration, in accordance with regulations prescribed by the President,

except that no such exemption shall be granted to any person who

is a national of a country which does not grant reciprocal privileges

to citizens of the United States: Provided, That any active duty

performed prior to June 24, 1948, by a person in the armed forces

of a country allied with the United States during World War II and

with which the United States is associated in such mutual defense

activities, shall be credited in computation of such twelve-month

period: Provided further, That any person who is in a medical, dental, or allied specialist category not otherwise deferred or exempted

under this subsection shall be liable for registration and training

and service until the thirty-fifth anniversary of the date of his

birth.

(2) Commissioned officers of the Public Health Service and

members of the Reserve of the Public Health Service while on active duty and assigned to staff the various offices and bureaus of

the Public Health Service, including the National Institutes of

Health, or assigned to the Coast Guard, the Bureau of Prisons, Department of Justice, Environmental Protection Agency, or the Environmental Science Services Administration, or who are assigned to

assist Indian tribes, groups, bands, or communities pursuant to the
517 Sec. 6 MILITARY SELECTIVE SERVICE ACT

Act of August 5, 1954 (68 Stat. 674), as amended, shall not be required to be registered under section 3 and shall be relieved from

liability for training and service under section 4. Notwithstanding

the preceding sentence, commissioned officers of the Public Health

Service and members of the Reserve of the Public Health Service

who, prior to the enactment of this paragraph, had been detailed

or assigned duty other than that specified in the preceding sentence shall not be required to be registered under section 3 and

shall be relieved from liability for training and service under section 4.

øVeterans Exemptions¿

(b)(1) No person who served honorably on active duty between

September 16, 1940, and the date of enactment of this title for a

period of twelve months or more, or between December 7, 1941,

and September 2, 1945, for a period in excess of ninety days, in the

Army, the Air Force, the Navy, the Marine Corps, the Coast Guard,

the Public Health Service, or the armed forces of any country allied

with the United States in World War II prior to September 2, 1945,

shall be liable for induction for training and service under this

title, except after a declaration of war or national emergency made

by the Congress subsequent to the date of enactment of this title.

(2) No person who served honorably on active duty between

September 16, 1940, and the date of enactment of this title for a

period of ninety days or more but less than twelve months in the

Army, the Air Force, the Navy, the Marine Corps, the Coast Guard,

the Public Health Service, or the armed forces of any country allied

with the United States in World War II prior to September 2, 1945,

shall be liable for induction for training and service under this

title, except after a declaration of war or national emergency made

by the Congress subsequent to the date of enactment of this title,

if—

(A) the local board determined that he is regularly enlisted

or commissioned in any organized unit of a reserve component

of the armed force in which he served, provided such unit is

reasonably accessible to such person without unduly interrupting his normal pursuits and activities (including attendance at a college or university in which he is regularly enrolled), or in a reserve component (other than in an organized

unit) of such armed force in any case in which enlistment or

commission in an organized unit of a reserve component of

such armed force is not available to him; or

(B) the local board determines that enlistment or commission in a reserve component or such armed force is not available to him or that he has voluntarily enlisted or accepted appointment in an organized unit of a reserve component of an

armed force other than the armed force in which he served.

Nothing in this paragraph shall be deemed to be applicable to any

person to whom paragraph (1) of this subsection is applicable.

(3) Except as provided in section 5(a) of this Act, and notwithstanding any other provision of this Act, no persons who (A) has

served honorably on active duty after September 16, 1940, for a period of not less than one year in the Army, the Air Force, the Navy,
Sec. 6 MILITARY SELECTIVE SERVICE ACT 518

the Marine Corps, or the Coast Guard, or (B) subsequent to September 16, 1940, was discharged for the convenience of the Government after having served honorably on active duty for a period of

not less than six months in the Army, the Air Force, the Navy, the

Marine Corps, or the Coast Guard, or (C) has served for a period

of not less than twenty-four months (i) as a commissioned officer

in the Public Health Service or (ii) as a commissioned officer in the

Coast and Geodetic Survey, shall be liable for induction for training

and service under this Act, except after a declaration of war or national emergency made by the Congress subsequent to the date of

enactment of this title.

(4) No person who is honorably discharged upon the completion

of an enlistment pursuant to section 4(c) shall be liable for induction for training and service under this title, except after a declaration of war or national emergency made by the Congress subsequent to the date of enactment of this title.

(5) For the purposes of computation of the periods of active

duty referred to in paragraphs (1), (2), or (3) of this subsection, no

credit shall be allowed for—

(A) periods of active duty training performed as a member

of a reserve component pursuant to an order or call to active

duty solely for training purposes;

(B) periods of active duty in which the service consisted

solely of training under the Army specialized training program,

the Army Air Force college training program, or any similar

program under the jurisdiction of the Navy, Marine Corps, or

Coast Guard;

(C) periods of active duty as a cadet at the United States

Military Academy or United States Coast Guard Academy, or

as a midshipman at the United States Naval Academy, or in

a preparatory school after nomination as a principal, alternate,

or candidate for admission to any of such academies; or

(D) periods of active duty in any of the armed forces while

being processed for entry into or separation from any educational program or institution referred to in paragraphs (B) or

(C).

(E) øSubparagraph (E) terminated as of July 1, 1973, pursuant to section 9 of Public Law 85–62, June 27, 1957 (71 Stat.

208), as last amended by section 103 of Public Law 92–129,

September 28, 1971 (85 Stat. 355)¿

øReserve Components Exemptions¿

(c)(1) Persons who, on February 1, 1951, were members of organized units of the federally recognized National Guard, the federally recognized Air National Guard, the Officers’ Reserve Corps,

the Regular Army Reserve, the Air Force Reserve, the Enlisted Reserve Corps, the Naval Reserve, the Marine Corps Reserve, the

Coast Guard Reserve, or the Public Health Service Reserve, shall,

so long as they continue to be such members and satisfactorily participate in scheduled drills and training periods as prescribed by

the Secretary of Defense, be exempt from training and service by

induction under the provisions of this title, but shall not be exempt

from registration unless on active duty.
519 Sec. 6 MILITARY SELECTIVE SERVICE ACT

(2)(A) Any person, other than a person referred to in subsection (d) of this section, who—

(i) prior to the issuance of orders for him to report for induction; or

(ii) prior to the date scheduled for his induction and pursuant to a proclamation by the Governor of a State to the effect

that the authorized strength of any organized unit of the National Guard of that State cannot be maintained by the enlistment or appointment of persons who have not been issued orders to report for induction under this title; or

(iii) prior to the date scheduled for his induction and pursuant to a determination by the President that the strength of

the Ready Reserve of the Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, or Coast Guard Reserve

cannot be maintained by the enlistment or appointment of persons who have not been issued orders to report for induction,

under this title;

enlists or accepts appointment, before attaining the age of 26 years,

in the Ready Reserve of any Reserve component of the Armed

Forces, the Army National Guard, or the Air National Guard, shall

be deferred from training and service under this title so long as he

serves satisfactorily as a member of an organized unit of such Reserve or National Guard in accordance with section 10147 of title

10 or section 502 of title 32, United States Code, as the case may

be, or satisfactorily performs such other Ready Reserve service as

may be prescribed by the Secretary of Defense. Enlistments or appointments under subparagraphs (ii) and (iii) of this clause may be

accepted notwithstanding the provisions of section 15(d) of this

title. Notwithstanding the provisions of subsection (h) of this section, no person deferred under this clause who has completed six

years of such satisfactory service as a member of the Ready Reserve or National Guard, and who during such service has performed active duty for training with an armed force for not less

than twelve consecutive weeks shall be liable for induction for

training and service under this Act, except after a declaration of

war or national emergency made by the Congress after August 9,

1955. In no event shall the number of enlistments or appointments

made under authority of this paragraph in any fiscal year in any

Reserve component of the Armed Forces or in the Army National

Guard or the Air National Guard cause the personnel strength of

such Reserve component or the Army National Guard or the Air

National Guard, as the case may be, to exceed the personnel

strength for which funds have been made available by the Congress

for such fiscal year.

(B) A person who, under any provision of law, is exempt or deferred from training and service under this Act by reason of membership in a reserve component, the Army National Guard, or the

Air National Guard, as the case may be, shall, if he becomes a

member of another reserve component, the Army National Guard,

or the Air National Guard, as the case may be, continue to be exempt or deferred to the same extent as if he had not become a

member of another reserve component, the Army National Guard,

or the Air National Guard, as the case may be, so long as he continues to serve satisfactorily.
Sec. 6 MILITARY SELECTIVE SERVICE ACT 520

1 Repealed by Public Law 88–110, September 3, 1963 (77 Stat. 134).

2 Repealed by section 53 of the Act of August 10, 1956 (70A Stat. 678). See chapters 102 and

103 of title 10, United States Code.

(C) Except as provided in subsection (b) and the provisions of

this subsection, no person who becomes a member of a reserve component after February 1, 1951, shall thereby be exempt from registration or training and service by induction under the provisions

of this Act.

(D) Notwithstanding any other provision of this Act, the President, under such rules and regulations as he may prescribe, may

provide that any person enlisted or appointed after October 4,

1961, in the Ready Reserve of any reserve component of the Armed

Forces (other than under section 12103 of title 10, United States

Code), the Army National Guard, or the Air National Guard, prior

to attaining age of twenty six years, or any person enlisted or appointed in the Army National Guard or the Air National Guard or

enlisted in the Ready Reserve of any reserve component prior to attaining the age of eighteen years and six months and deferred

under the prior provisions of this paragraph as amended by the Act

of October 4, 1961, Public Law 87–378 (75 Stat. 807), or under section 262 of the Armed Forces Reserve Act of 1952, as amended, 1

who fails to serve satisfactorily during his obligated period of service as a member of such Ready Reserve or National Guard or the

Ready Reserve of another reserve component or the National

Guard of which he becomes a member, may be selected for training

and service and inducted into the armed force of which such reserve component is a part, prior to the selection and induction of

other persons liable therefor.

øOfficers’ Training; Deferment of Students Authorized¿

(d)(1) Within such numbers as may be prescribed by the Secretary of Defense, any person who (A) has been or may hereafter

be selected for enrollment or continuance in the senior division, Reserve Officers’ Training Corps, or the Air Reserve Officers’ Training

Corps, or the Naval Reserve Officers’ Training Corps, or the naval

and Marine Corps officer candidate traning program established by

the Act of August 13, 1946 (60 Stat. 1057), as amended, 2 or the

Reserve officers’ candidate program of the Navy, or the platoon

leaders’ class of the Marine Corps, or the officer recruitment programs of the Coast Guard and the Coast Guard Reserve, or appointed an ensign, United States Naval Reserve, while undergoing

professional training; (B) agrees, in writing, to accept a commission, if tendered, and to serve, subject to order of the Secretary of

the military department having jurisdiction over him (or the Secretary of Homeland Security with respect to the United States

Coast Guard), not less than two years on active duty after receipt

of a commission; and (C) agrees to remain a member of a regular

or reserve component until the eighth anniversary of the receipt of

a commission in accordance with his obligation under the first sentence of section 651 of title 10, United States Code, or until the

sixth anniversary of the receipt of a commission in accordance with

his obligation under the second sentence of section 651 of title 10,

United States Code, shall be deferred from induction under this
521 Sec. 6 MILITARY SELECTIVE SERVICE ACT

title until after completion or termination of the course of instruction and so long as he continues in a regular or reserve status upon

being commissioned, but shall not be exempt from registration.

Such persons, except those persons who have previously completed

an initial period of military training or an equivalent period of active military training and service, shall be required while enrolled

in such programs to complete a period of training equal (as determined under regulation approved by the Secretary of Defense or

the Secretary of Homeland Security with respect to the United

States Coast Guard) in duration and type of training to an initial

period of military training. There shall be added to the obligated

active commissioned service of any person who has agreed to perform such obligatory service in return for financial assistance while

attending a civilian college under any such training program a period of not to exceed one year. Except as provided in paragraph (5),

upon the successful completion by any person of the required

course of instruction under any program listed in clause (A) of the

first sentence of this paragraph, such person shall be tendered a

commission in the appropriate reserve component of the Armed

Forces if he is otherwise qualified for such appointment. If, at the

time of, or subsequent to, such appointment, the armed force in

which such person is commissioned does not require his service on

active duty in fulfillment of the obligation undertaken by him in

compliance with clause (B) of the first sentence of this paragraph,

such person, shall be ordered to active duty for training with such

armed force in the grade in which he was commissioned for a period of active duty for training of not more than six months (not

including duty performed under section 10147 of title 10, United

States Code), as determined by the Secretary of the military department concerned to be necessary to qualify such person for a

mobilization assignment. Upon being commissioned and assigned to

a reserve component, such person shall be required to serve therein, or in a reserve component of any other armed force in which

he is later appointed, until the eighth anniversary of the receipt of

such commission pursuant to the provisions of this section. So long

as such person performs satisfactory service, as determined under

regulations prescribed by the Secretary of Defense, he shall be deferred from training and service under the provisions of this Act.

If such person fails to perform satisfactory service, and such failure

is not excused under regulations prescribed by the Secretary of Defense, his commission may be revoked by the Secretary of the military department concerned.

(2) In addition to the training programs enumerated in paragraph (1) of this subsection, and under such regulations as the Secretary of Defense (or the Secretary of the Treasury with respect to

the United States Coast Guard) may approve, the Secretaries of

the military departments and the Secretary of the Treasury are authorized to establish officer candidate programs leading to the commissioning of persons on active duty. Any person heretofore or

hereafter enlisted in the Army Reserve, the Naval Reserve, the Marine Corps Reserve, the Air Force Reserve, or the Coast Guard Reserve who thereafter has been or may be commissioned therein

upon graduation from an Officers’ Candidate School of such Armed

Force shall, if not ordered to active duty as a commissioned officer,
Sec. 6 MILITARY SELECTIVE SERVICE ACT 522

1Paragraph (5) as enacted (Public Law 87–536, July 18, 1962 (76 Stat. 167)) contained four

references to the Coast and Geodetic Survey. The paragraph was never amended to strike out

‘‘Coast and Geodetic Survey’’ and insert ‘‘Environmental Science Services Administration’’.

Section 101(a)(15) of Public Law 92–129, September 28, 1971 (85 Stat. 350), reads as follows:

(15) Section 6(d)(5) [of the Military Selective Service Act of 1967] is amended by striking out

‘‘Environmental Science Services Administration’’ each time it appears and inserting in lieu

thereof ‘‘National Oceanic and Atmospheric Administration’’.

be deferred from training and service under the provisions of this

Act so long as he performs satisfactory service as a commissioned

officer in an appropriate unit of the Ready Reserve, as determined

under regulations prescribed by the Secretary of the department

concerned. If such person fails to perform satisfactory service in

such unit, and such failure is not excused under such regulations,

his commission may be revoked by such Secretary.

(3) Nothing in this subsection shall be deemed to preclude the

President from providing, by regulation prescribed under subsection (h) of this section, for the deferment from training and service of any category or categories of students for such periods of time

as he may deem appropriate.

(4) øParagraph (4) terminated as of July 1, 1973, pursuant to

section 9 of Public Law 85–62, June 27, 1957 (71 Stat. 208), as last

amended by section 103 of Public Law 92–129, September 28, 1971

(85 Stat. 355)¿

(5) Notwithstanding paragraph (1), upon the successful completion by any person of the required course of instruction under any

Reserve Officers’ Training Corps program listed in clause (A) of the

first sentence of paragraph (1) and subject to the approval of the

Secretary of the military department having jurisdiction over him,

such person may, without being relieved of his obligation under

that sentence, he tendered, and accept a commission in the Coast

and Geodetic Survey 1 instead of a commission in the appropriate

reserve component of the Armed Forces. If he does not serve on active duty as a commissioned officer of the Coast and Geodetic Survey for at least six years, he shall, upon discharge therefrom, be

tendered a commission in the appropriate reserve component of the

Armed Forces, if he is otherwise qualified for such appointment,

and, in fulfillment of his obligation under the first sentence of

paragraph (1), remain a member of a reserve component until the

sixth anniversary of the receipt of his commission in the Coast and

Geodetic Survey. While a member of a reserve component he may,

in addition to as otherwise provided by law, be ordered to active

duty for such period that, when added to the period he served on

active duty as a commissioned officer of the Coast and Geodetic

Survey, equals two years.

øAviation Cadet Applicants¿

(e) Fully qualified and accepted aviation cadet applicants of the

Army, Navy, or Air Force who have signed an agreement of service

shall, in such numbers as may be designated by the Secretary of

Defense, be deferred, during the period covered by the agreement

but not to exceed four months, from induction for training and

service under this title but shall not be exempt from registration.
523 Sec. 6 MILITARY SELECTIVE SERVICE ACT

øCertain Public Officials¿

(f) The Vice President of the United States; the governors of

the several States, Territories, and possessions, and all other officials chosen by the voters of the entire State, Territory, or possession; members of the legislative bodies of the United States and of

the several States, Territories, and possessions; judges of the courts

of record of the United States and of the several States, Territories,

possessions, and the District of Columbia shall, while holding such

offices, be deferred from training and service under this title in the

armed forces of the United States.

øMinisters of Religion; Students Preparing for the Ministry¿

(g)(1) Regular or duly ordained ministers of religion, as defined

in this title, shall be exempt from training and service, but not

from registration, under this title.

(2) Students preparing for the ministry under the direction of

recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools, or who are satisfactorily pursuing fulltime courses of instruction leading to their entrance into recognized

theological or divinity schools in which they have been preenrolled,

shall be deferred from training and service, but not from registration, under this title. Persons who are or may be deferred under

provisions of this subsection shall remain liable for training and

service in the Armed Forces under the provisions of section 4(a) of

this Act until the thirty-fifth anniversary of the date of their birth.

The foregoing sentence shall not be construed to prevent the exemption or continued deferment of such persons if otherwise exempted or deferrable under any other provision of this Act.

øDeferment for Occupations, Dependency, Fitness, Extended

Liability; Criteria¿

(h) Except as otherwise provided in this subsection the President is authorized, under such rules and regulation as he may prescribe, to provide for the deferment from training and service in the

Armed Forces of any or all categories of persons whose employment

in industry, agriculture, or other occupations or employment, or

whose continued service in an Office (other than an Office described in subsection (f)) under the United States or any State, territory or possession, or the District of Columbia, or whose activity

in study, research, or medical, dental, veterinary, optometric, osteopathic, scientific, pharmaceutical, chiropractic, chiropodial, or other

endeavors is found to be necessary to the maintenance of the national health, safety, or interest: Provided, That no person within

any such category shall be deferred except upon the basis of his individual status: Provided further, That persons who are or may be

deferred under the provisions of this section shall remain liable for

training and service in the Armed Forces under the provisions of

section 4(a) of this Act until the thirty-fifth anniversary of the date

of their birth. This proviso shall not be construed to prevent the

continued deferment of such persons if otherwise deferrable under

any other provisions of this Act. The President is also authorized,
Sec. 6 MILITARY SELECTIVE SERVICE ACT 524

under such rules and regulations as he may prescribe, to provide

for the deferment from training and service in the Armed Forces

(1) of any or all categories of persons in a status with respect to

persons (other than wives alone, except in cases of extreme hardship) dependent upon them for support which renders their

deferment advisable, and (2) of any or all categories of those persons found to be physically, mentally, or morally deficient or defective. For the purpose of determining whether or not the deferment

of any person is advisable, because of his status with respect to

persons dependent upon him for support, any payments of allowances which are payable by the United States to the dependents of

persons serving in the Armed Forces of the United States shall be

taken into consideration, but the fact that such payments of allowances are payable shall not be deemed conclusively to remove the

grounds for deferment when the dependency is based upon financial considerations and shall not be deemed to remove the ground

for deferment when the dependency is based upon other than financial considerations and cannot be eliminated by financial assistance to the dependents. Except as otherwise provided in this subsection, the President is also authorized, under such rules and regulations as he may prescribe, to provide for the deferment from

training and service in the Armed Forces of any or all categories

of persons who have children, or wives and children, with whom

they maintain a bona fide family relationship in their homes. No

deferment from such training and service in the Armed Forces

shall be made in the case of any individual except upon the basis

of the status of such individual. There shall be posted in a conspicuous place at the office of each local board a list setting forth

the names and classification of those persons who have been classified by such local board. The President may, in carrying out the

provisions of this title, recommend criteria for the classification of

persons subject to induction under this title, and to the extent that

such action is determined by the President to be consistent with

the national interest, recommended that such criteria be administered uniformly throughout the United States whenever practicable; except that no local board, appeal board, or other agency

of appeal of the Selective Service System shall be required to postpone or defer any person by reason of his activity in study, research, or medical, dental, veterinary, optometric, osteopathic, scientific, pharmaceutical, chiropractic, chiropodial, or other endeavors found to be necessary to the maintenance of the national

health, safety, or interest solely on the basis of any test, examination, selection system, class standing, or any other means conducted, sponsored, administered, or prepared by any agency or department of the Federal Government, or any private institution,

corporation, association, partnership, or individual employed by an

agency or department of the Federal Government.

øPostponement of Induction of Students¿

(i)(1) Any person who is satisfactorily pursuing a full-time

course of instruction at a high school or similar institution of learning and is issued an order for induction shall, upon the facts being

presented to the local board, have his induction postponed (A) until
525 Sec. 6 MILITARY SELECTIVE SERVICE ACT

the time of his graduation therefrom, or (B) until he attains the

twentieth anniversary of his birth, or (C) until he ceases satisfactorily to pursue such course of instruction, whichever is the earliest. Notwithstanding the preceding sentence, any person who attains the twentieth anniversary of his birth after beginning his last

academic year of high school shall have his induction postponed

until the end of that academic year if and so long as he continues

to pursue satisfactorily a full-time course of instruction.

(2) Any person who while satisfactorily pursuing a full-time

course of instruction at a college, university, or similar institution

is ordered to report for induction under this title, shall, upon the

appropriate facts being presented to the local board, have his induction postponed (A) until the end of the semester or term, or academic year in the case of his last academic year, or (B) until he

ceases satisfactorily to pursue such course of instruction, whichever

is the earlier.

øConscientious Objectors¿

(j) Nothing contained in this title shall be construed to require

any person to be subject to combatant training and service in the

armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in

any form. As used in this subsection, the term ‘‘religious training

and belief’’ does not include essentially political, sociological, or

philosophical views, or a merely personal moral code. Any person

claiming exemption from combatant training and service because of

such conscientious objections whose claim is sustained by the local

board shall, if he is inducted into the armed forces under this title,

be assigned to noncombatant service as defined by the President,

or shall, if he is found to be conscientiously opposed to participation

in such noncombatant service, in lieu of such induction, be ordered

by his local board, subject to such regulations as the President may

prescribe, to perform for a period equal to the period prescribed in

section 4(b) such civilian work contributing to the maintenance of

the national health, safety, or interest as the Director may deem

appropriate and any such person who knowingly fails or neglects

to obey any such order from his local board shall be deemed, for

the purposes of section 12 of this title, to have knowingly failed or

neglected to perform a duty required of him under this title. The

Director shall be responsible for finding civilian work for persons

exempted from training and service under this subsection and for

the placement of such persons in appropriate civilian work contributing to the maintenance of the national health, safety, or interest.

øDuration of Exemption of Deferment¿

(k) No exception from registration, or exemption or deferment

from training and service, under this title, shall continue after the

cause therefor ceases to exist.

øMinority Discharges¿

(l) Notwithstanding any other provisions of law, no person between the ages of eighteen and twenty-one shall be discharged

from service in the armed forces of the United States while this
Sec. 8 MILITARY SELECTIVE SERVICE ACT 526

title is in effect because such person entered such service without

the consent of his parent or guardian.

øMoral Standards¿

(m) No person shall be relieved from training and service

under this title by reason of conviction of a criminal offense, except

where the offense of which he has been convicted may be punished

by death, or by imprisonment for a term exceeding one year.

øAppeals; Occupational Deferments¿

(n) In the case of any registrant whose principal place of employment is located outside the appeal board area in which the

local board having jurisdiction over the registrant is located, any

occupational deferment made under subsection (h) of this section

may, within five days after such deferment is made, be submitted

for review and decision to the appeal board having jurisdiction over

the area in which is located the principal place of employment of

the registrant. Such decision of the appeal board shall be final unless modified or changed by the President, and such decision shall

be made public.

øSurviving Son or Brother¿

(o) Except during the period of a war or a national emergency

declared by Congress, no person may be inducted for training and

service under this title unless he volunteers for such induction—

(1) if the father or the mother or a brother or a sister of

such person was killed in action or died in line of duty while

serving in the Armed Forces after December 31, 1959, or died

subsequent to such date as a result of injuries received or disease incurred in line of duty during such service, or

(2) during any period of time in which the father or the

mother or a brother or a sister of such person is in a captured

or missing status as a result of such service.

As used in this subsection, the term ‘‘brother’’ or ‘‘sister’’ means a

brother of the whole blood or a sister of the whole blood, as the

case may be.

SEC. 7. øRepealed by section 1(r) of the Act of June 19, 1951

(65 Stat. 86)¿

øBOUNTIES FOR ENLISTMENT OR INDUCTION; SUBSTITUTES;

PURCHASES OF RELEASE¿

SEC. 8. ø50 U.S.C. App. 458¿ No bounty may be paid to induce

any person to be inducted into an armed force. A clothing allowance authorized by law is not a bounty for the purposes of this section. No person liable for training and service under this Act may

furnish a substitute for that training or service. No person may be

enlisted, inducted, or appointed in an armed force as a substitute

for another. No person liable for training and service under section

4 may escape that training and service or be discharged before the

end of his period of training and service by paying money or any
527 Sec. 9 MILITARY SELECTIVE SERVICE ACT

other valuable thing as consideration for his release from that

training and service or liability therefor.

SEPARATION FROM SERVICE; REEMPLOYMENT RIGHTS

øCertificates of Service¿

SEC. 9. ø50 U.S.C. App. 459¿ (a) Any person inducted into the

armed forces under this title for training and service, who, in the

judgment of those in authority over him, satisfactorily completes

his period of training and service under section 4(b) shall be entitled to a certificate to that effect upon the completion of such period of training and service, which shall include a record of any

special proficiency or merit attained. In addition, each such person

who is inducted into the armed forces under this title for training

and service shall be given a physical examination at the beginning

of such training and service, and upon the completion of his period

of training and service under this title, each such person shall be

given another physical examination and, upon his written request,

shall be given a statement of physical condition by the Secretary

concerned: Provided, That such statement shall not contain any

reference to mental or other conditions which in the judgment of

the Secretary concerned would prove injurious to the physical or

mental health of the person to whom it pertains: Provided further,

That, if upon completion of training and service under this title,

such person continues on active duty without an interruption of

more than seventy-two hours as a member of the Armed Forces of

the United States, a physical examination upon completion of such

training and service shall not be required unless it is requested by

such person, or the medical authorities of the Armed Force concerned determined that the physical examination is warranted.

øRight To Vote; Manner; Poll Tax¿

(b) Any person inducted into the armed forces for training and

service under this title shall, during the period of such service, be

permitted to vote in person or by absentee ballot in any general,

special, or primary election occurring in the State of which he is

a resident, whether he is within or outside such State at the time

of such election, if under the laws of such State he is otherwise entitled so to vote in such election; but nothing in this subsection

shall be construed to require granting to any such person a leave

of absence or furlough for longer than one day in order to permit

him to vote in person in any such election. No person inducted into,

or enlisted in, the armed forces for training and service under this

title shall, during the period of such service, as a condition of voting in any election for President, Vice President, electors for President or Vice President, or for Senator or Member of the House of

Representatives, be required to pay any poll tax or other tax or

make any other payment to any State or political subdivision

thereof.

øReports on Separated Personnel¿

(c) The Secretary of a military department, and the Secretary

of Homeland Security with respect to the Coast Guard, shall fur-
Sec. 10 MILITARY SELECTIVE SERVICE ACT 528

nish to the Selective Service System hereafter established a report

of separation for each person separated from active duty.

THE SELECTIVE SERVICE SYSTEM; CONSTRUCTION; CIVILIAN

EMPLOYEES

øEstablishment of Selective Service System¿

SEC. 10. ø50 U.S.C. App. 460¿ (a)(1) There is hereby established in the executive branch of the Government an agency to be

known as the Selective Service System, and a Director of Selective

Service shall be the head thereof.

(2) The Selective Service System shall include a national headquarters, at least one State headquarters in each State, Territory,

and possession of the United States, and in the District of Columbia, and the local boards, appeals boards, and other agencies provided for in subsection (b)(3) of this section.

(3) The Director shall be appointed by the President, by and

with the advice and consent of the Senate.

(4) The functions of the Office of Selective Service Records (established by the Act of March 31, 1947) and of the Director of the

Office of Selective Service Records are hereby transferred to the Selective Service System and the Director of Selective Service, respectively. The personnel, property, records, and unexpended balances

(available or to be made available) of appropriations, allocations,

and other funds of the Office of Selective Service Records are hereby transferred to the Selective Service System. The Office of Selective Service Records shall cease to exist upon the taking of effect

of the provisions of this title: Provided, That, effective upon the termination of this title and notwithstanding such termination in

other respects, (A) the said Office of Selective Service Records is

hereby established on the same basis and with the same functions

as obtained prior to the effective date of this title, (B) said reestablished Office shall be responsible for liquidating any other outstanding affairs of the Selective Service System, and (C) the personnel, property, records, and unexpended balances (available or to

be made available) of appropriations, allocations, and other funds

of the Selective Service System shall be transferred to such reestablished Office of Selective Service Records.

øAdministrative Provisions¿

(b) The President is authorized to undertake the following:

(1) To prescribe the necessary rules and regulations to

carry out the provisions of this title.

(2) To appoint, upon recommendation of the respective governor or comparable executive official, a State director of the

Selective Service System for each headquarters in each State,

Territory, and possession of the United States and for the District of Columbia, who shall represent the governor and be in

immediate charge of the State headquarters of the Selective

Service System: Provided, That no State director shall serve

concurrently in an elected or appointed position of a State or

local government; to employ such number of civilians, and, subject to subsection (e), to order to active duty with their consent
529 Sec. 10 MILITARY SELECTIVE SERVICE ACT

and to assign to the Selective Service System such officers of

the selective-service section of the State headquarters and

headquarters detachments and such other officers of the federally recognized National Guard of the United States or other

armed forces personnel (including personnel of the reserve

components thereof), as may be necessary for the administration of the national and of the several State headquarters of

the Selective Service System.

(3) To create and establish within the Selective Service

System civilian local boards, civilian appeal boards, and such

other civilian agencies, including agencies of appeal, as may be

necessary to carry out its functions with respect to the registration, examination, classification, selection, assignment, delivery for induction, and maintenance of records of persons registered under this title, together with such other duties as may

be assigned under this title: Provided, That no person shall be

disqualified from serving as a counselor to registrants, including service as Government appeal agent, because of his membership in a Reserve component of the Armed Forces. He shall

create and establish one or more local boards in each county

or political subdivision corresponding thereto of each State, territory, and possession of the United States, and in the District

of Columbia. The local board and/or its staff shall perform

their official duties only within the county or political subdivision corresponding thereto for which the local board is established, or in the case of an intercounty board, within the area

for which such board is established, except that the staffs of

local boards in more than one county of a State or comparable

jurisdiction may be collocated or one staff may serve local

boards in more than one county of a State or comparable jurisdiction when such action is approved by the Governor or comparable executive official or officials. Each local board shall

consist of three or more members to be appointed by the President from recommendations made by the respective Governors

or comparable executive officials. In making such appointment

after the date of the enactment of the Act enacting this sentence, the President is requested to appoint the membership of

each local board so that to the maximum extent practicable it

is proportionately representative of the race and national origin of those registrants within its jurisdiction, but no action by

any local board shall be declared invalid on the ground that

any board failed to conform to any particular quota as to race

or national origin. No citizen shall be denied membership on

any local board or appeal board on account of sex. After December 31, 1971, no person shall serve on any local board or

appeal board who has served on any local board or appeal

board for a period of more than 20 years. Notwithstanding any

other provision of this paragraph, an intercounty local board

consisting of at least one member from each component county

or corresponding subdivision may, with the approval of the

Governor or comparable executive official or officials, be established for an area not exceeding five counties or political subdivisions corresponding thereto within a State or comparable

jurisdiction when the President determines, after considering
Sec. 10 MILITARY SELECTIVE SERVICE ACT 530

the public interest involved, that the establishment of such

local board will result in a more efficient and economical operation. Any such intercounty local board shall have within its

area the same power and jurisdiction as a local board has in

its area. A local board may include among its members any citizen otherwise qualified under Presidential regulations, provided he is at least eighteen years of age. No member of any

local board shall be a member of the Armed Forces of the

United States, but each member of any local board shall be a

civilian who is a citizen of the United States residing in the

county or political subdivision corresponding thereto in which

such local board has jurisdiction, and each intercounty local

board shall have at least one member from each county or political subdivision corresponding thereto included within the

intercounty local board area. Such local boards, or separate

panels thereof each consisting of three or more members, shall,

under rules and regulations prescribed by the President, have

the power within the respective jurisdictions of such local

boards to hear and determine, subject to the right of appeal to

the appeal boards hereby authorized, all questions or claims

with respect to inclusion for, or exemption or deferment from,

training and service under this title, of all individuals within

the jurisdiction of such local boards. The decisions of such local

boards shall be final, except where an appeal is authorized and

is taken in accordance with such rules and regulations as the

President may prescribe. There shall be not less than one appeal board located within the area of each Federal judicial district in the United States and within each Territory and possession of the United States, and such additional separate panels thereof, as may be prescribed by the President. Appeal

boards within the Selective Service System shall be composed

of civilians who are citizens of the United States and who are

not members of the armed forces. The decision of such appeal

boards shall be final in cases before them on appeal unless

modified or changed by the President. The President, upon appeal or upon his own motion, shall have power to determine all

claims or questions with respect to inclusion for, or exemption

or deferment from training and service under this title, and

the determination of the President shall be final. No judicial

review shall be made of the classification or processing of any

registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under

section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined

to be opposed to participation in war in any form: Provided,

That such review shall go to the question of the jurisdiction

herein reserved to local boards, appeals boards, and the President only when there is no basis in fact for the classification

assigned to such registrant. No person who is a civilian officer,

member, agent, or employee of the Office of Selective Service

Records, or the Selective Service System, or of any local board

or appeal board or other agency of such Office or System, shall

be excepted from registration or deferred or exempted from
531 Sec. 10 MILITARY SELECTIVE SERVICE ACT

1 Repealed by section 3 of Public Law 90–620, October 22, 1968 (82 Stat. 1306). See 44 U.S.C.

504.

training and service, as provided for in this title, by reason of

his status as such civilian officer, member, agent, or employee.

(4) To appoint, and to fix, in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of title 5,

United States Code, relating to classification and General

Schedule pay rates, the basic pay of such officers, agents, and

employees as he may deem necessary to carry out the provisions of this title, however, any officer of the armed forces or

any officer or employee of any department or agency of the

United States who may be assigned or detailed to any office or

position to carry out the provisions of this title (except to officers of positions on local boards or appeal boards established

or created pursuant to section 10(b)(3)) may serve in and perform the functions of such office or position without loss of or

prejudice to his status as such officer in the armed forces or

as such officer or employee in any department or agency of the

United States.

(5) To utilize the services of any or all departments and

any and all officers or agents of the United States, and to accept the services of all officers and agents of the several States,

Territories, and possessions, and subdivisions thereof, and the

District of Columbia, and of private welfare organizations, in

the execution of this title.

(6) To purchase such printing, binding, and blank-book

work from public, commercial, or private printing establishments or binderies upon orders placed by the Public Printer or

upon waivers issued in accordance with section 12 of the Printing Act approved January 12, 1895, as amended, 1 and to obtain by purchase, loan, or gift such equipment and supplies for

the Selective Service System, as he may deem necessary to

carry out the provisions of this title, with or without advertising or formal contract.

(7) To prescribe eligibility, rules, and regulations governing the release for service in the armed forces, or for any

other special service established pursuant to this title, of any

person convicted of a violation of any of the provisions of this

title.

(8) Subject to the availability of funds appropriated for

such purpose, to procure such space as he may deem necessary

to carry out the provisions of this title and the Act of March

31, 1947 (50 U.S.C. App. 321 et seq.).

(9) Subject to the availability of funds appropriated for

such purposes, to determine the location of such additional

temporary installations as he may deem essential; to utilize

and enlarge such existing installations; to construct, install,

and equip, and to complete the construction, installation, and

equipment of such buildings, structures, utilities, and appurtenances (including the necessary grading and removal, repair

or remodeling of existing structures and installations), as may

be necessary to carry out the provisions of this title; and, in

order to accomplish the purpose of this title, to acquire lands
Sec. 10 MILITARY SELECTIVE SERVICE ACT 532

1Section 14 of the Federal Employees Pay Act of 1946 added a new subsection to section 607

of the Federal Employees Pay Act of 1945. That section was repealed by section 301(85) of the

Budget and Accounting Procedures Act of 1950, September 12, 1950 (64 Stat. 843).

and rights pertaining thereto, or other interests therein, for

temporary use thereof, by donation or lease, and to prosecute

construction thereon prior to the approval of the title by the

Attorney General as required by section 355, Revised Statutes,

as amended.

(10) Subject to the availability of funds appropriated for

such purposes, to utilize, in order to provide and furnish such

services as may be deemed necessary or expedient to accomplish the purposes of this title, such personnel of the armed

forces and of Reserve components thereof with their consent,

and such civilian personnel, as may be necessary. For the purposes of this title, the provisions of section 14 of the Federal

Employees’ Pay Act of 1946 (Public Law 390, Seventy-ninth

Congress) 1 with respect to the maximum limitations as to the

number of civilian employees shall not be applicable to the Department of the Army, the Department of the Navy, or the Department of the Air Force.

øDelegation of Authority¿

(c) The President is authorized to delegate any authority vested in him under this title, and to provide for the subdelegation of

any such authority.

øGifts¿

(d) In the administration of this title, gifts of supplies, equipment, and voluntary services may be accepted.

øAssignment of Armed Forces Personnel¿

(e) The total number of armed forces personnel assigned to the

Selective Service System under subsection (b)(2) at any time may

not be less than the number of such personnel determined by the

Director of Selective Service to be necessary, but not to exceed 745

persons, except that the President may assign additional armed

forces personnel to the Selective Service System during a time of

war or a national emergency declared by Congress or the President.

øSettlement of Travel Claims¿

(f) The Director is authorized to make final settlement of individual claims, for amounts not exceeding $500, for travel and other

expenses of uncompensated personnel of the Office of Selective

Service Records, or the Selective Service System, incurred while in

the performance of official duties, without regard to other provisions of law governing the travel of civilian employees of the Federal Government.

øSemiannual Report to Congress¿

(g) The Director of Selective Service shall submit to Congress

annually a written report covering the operation of the Selective
533 Sec. 12 MILITARY SELECTIVE SERVICE ACT

Service System and such report shall include, by States, information as to the number of persons registered under this Act; the

number of persons inducted into military service under this Act;

the number of deferments granted under this Act and the basis for

such deferments; and such other specific kinds of information as

the Congress may from time to time request.

øMaintenance of Selective Service System as Active Standby

Organization After Institution of All Volunteer Program¿

(h) The Selective Service system shall be maintained as an active standby organization, with (1) a complete registration and classification structure capable of immediate operation in the event of

a national emergency (including a structure for registration and

classification of persons qualified for practice or employment in a

health care occupation essential to the maintenance of the Armed

Forces) and (2) personnel adequate to reinstitute immediately the

full operation of the System, including military reservists who are

trained to operate such System and who can be ordered to active

duty for such purpose in the event of a national emergency.

øEMERGENCY MEDICAL CARE¿

SEC. 11. ø50 U.S.C. App. 461¿ Under such rules and regulations as may be prescribed by the President, funds available to

carry out the provisions of this title shall also be available for the

payment of actual and reasonable expenses of emergency medical

care, including hospitalization, of registrants who suffer illness or

injury, and the transportation and burial of the remains of registrants who suffer death, while acting under orders issued under

the provisions of this title, but such burial expenses shall not exceed the maximum that the Secretary of Veterans Affairs may pay

under the provisions of section 902(a) of title 38, United States

Code, in any one case.

PENALTIES

SEC. 12. ø50 U.S.C. App. 462¿ (a) Any member of the Selective

Service System or any other person charged as herein provided

with the duty of carrying out any of the provisions of this title, or

the rules or regulations made or directions given thereunder, who

shall knowingly fail or neglect to perform such duty, and any person charged with such duty, or having and exercising any authority

under said title, rules, regulations, or directions who shall knowingly make, or be a party to the making, of any false, improper, or

incorrect registration, classification, physical or mental examination, deferment, induction, enrollment, or muster, and any person

who shall knowingly, make, or be a party to the making of, any

false statement or certificate regarding or bearing upon a classification or in support of any request for a particular classification, for

service under the provisions of this title, or rules, regulations, or

directions made pursuant thereto, or who otherwise evades or refuses registration or service in the armed forces or any of the requirements of this title, or who knowingly counsels, aids, or abets

another to refuse or evade registration or service in the armed

forces or any of the requirements of this title, or of said rules, regu-
Sec. 12 MILITARY SELECTIVE SERVICE ACT 534

lations, or directions, or who in any manner shall knowingly fail or

neglect or refuse to perform any duty required of him under or in

the execution of this title, or rules, regulations, or directions made

pursuant to this title, or any person or persons who shall knowingly hinder or interfere or attempt to do so in any way, by force

or violence or otherwise, with the administration of this title or the

rules or regulations made pursuant thereto, or who conspires to

commit any one or more of such offenses, shall, upon conviction in

any district court of the United States of competent jurisdiction, be

punished by imprisonment for not more than five years or a fine

of not more than $10,000, or by both such fine and imprisonment,

or if subject to military or naval law may be tried by court martial,

and, on conviction, shall suffer such punishment as a court martial

may direct. No person shall be tried by court martial in any case

arising under this title unless such person has been actually inducted for the training and service prescribed under this title or

unless he is subject to trial by court martial under laws in force

prior to the enactment of this title.

(b) Any person (1) who knowingly transfers or delivers to another, for the purpose of aiding or abeting the making of any false

identification or representation, any registration certificate, alien’s

certificate of nonresidence, or any other certificate issued pursuant

to or prescribed by the provisions of this title, or rules or regulations promulgated hereunder; or (2) who, with intent that it be

used for any purpose of false identification or representation, has

in his possession any such certificate not duly issued to him; or (3)

who forges, alters, knowingly destroys, knowingly mutilates, or in

any manner changes any such certificate or any notation duly and

validly inscribed thereon; or (4) who, with intent that it be used for

any purpose of false identification or representation, photographs,

prints, or in any manner makes or executes any engraving, photograph, print, or impression in the likeness of such certificate, or

any colorable imitation thereof; or (5) who has in his possession

any certificate purporting to be a certificate issued pursuant to this

title, or rules and regulations promulgated hereunder, which he

knows to be falsely made, reproduced, forged, counterfeited, or altered; or (6) who knowingly violates or evades any of the provisions

of this title or rules and regulations promulgated pursuant thereto

relating to the issuance, transfer, or possession of such certificate,

shall upon conviction, be fined not to exceed $10,000 or be imprisoned for not more than five years, or both. Whenever on trial for

a violation of this subsection the defendant is shown to have or to

have had possession of any certificate not duly issued to him, such

possession shall be deemed sufficient evidence to establish an intent to use such certificate for purposes of false identification or

representation, unless the defendant explains such possession to

the satisfaction of the jury.

(c) The Department of Justice shall proceed as expeditiously as

possible with a prosecution under this section, or with an appeal,

upon the request of the Director of Selective Service System or

shall advise the House of Representatives and the Senate in writing the reasons for its failure to do so.

(d) No person shall be prosecuted, tried, or punished for evading, neglecting, or refusing to perform the duty of registering im-
535 Sec. 12 MILITARY SELECTIVE SERVICE ACT

posed by section 3 of this title unless the indictment is found within five years next after the last day before such person attains the

age of twenty-six, or within five years next after the last day before

such person does perform his duty to register, whichever shall first

occur.

(e) The President may require the Secretary of Health and

Human Services to furnish to the Director, from records available

to the Secretary, the following information with respect to individuals who are members of any group of individuals required by a

proclamation of the President under section 3 to present themselves for and submit to registration under such section: name,

date of birth, social security account number, and address. Information furnished to the Director by the Secretary under this subsection shall be used only for the purpose of the enforcement of this

Act.

(f)(1) Except as provided in subsection (g), any person who is

required under section 3 to present himself for and submit to registration under such section and fails to do so in accordance with

any proclamation issued under such section, or in accordance with

any rule or regulation issued under such section, shall be ineligible

for any form of assistance or benefit provided under title IV of the

Higher Education Act of 1965.

(2) In order to receive any grant, loan, or work assistance

under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070

et seq.), a person who is required under section 3 to present himself for and submit to registration under such section shall file with

the institution of higher education which the person intends to attend, or is attending, a statement of compliance with section 3 and

regulations issued thereunder.

(3) The Secretary of Education, in agreement with the Director,

shall prescribe methods for verifying such statements of compliance

filed pursuant to paragraph (2). Such methods may include requiring institutions of higher education to provide a list to the Secretary of Education or to the Director of persons who have submitted such statements of compliance.

(4) The Secretary of Education, in consultation with the Director, shall issue regulations to implement the requirements of this

subsection. Such regulations shall provide that any person to whom

the Secretary of Education proposes to deny assistance or benefits

under title IV for failure to meet the registration requirements of

section 3 and regulations issued thereunder shall be given notice

of the proposed denial and shall have a suitable period (of not less

than thirty days) after such notice to provide the Secretary with information and materials establishing that he has complied with the

registration requirement under section 3. Such regulations shall

also provide that the Secretary may afford such person an opportunity for a hearing to establish his compliance or for any other

purpose.

(g) A person may not be denied a right, privilege, or benefit

under Federal law by reason of failure to present himself for and

submit to registration under section 3 if—

(1) the requirement for the person to so register has terminated or become inapplicable to the person; and
Sec. 13 MILITARY SELECTIVE SERVICE ACT 536

1Second sentence of section 9(a) of the Act of August 2, 1939, was repealed by Public Law

89–554, September 6, 1966 (80 Stat. 378), and reenacted as section 7324(a)(2) of title 5, United

State Code. 2The Administrative Procedure Act was repealed by Public Law 89–554, September 6, 1966

(80 Stat. 378), and was reenacted as subchapter II of chapter 5, and chapter 7, of title 5, United

States Code. 3 References are to titles 10 and 34 before enactment of title 10 by the Act of August 10, 1956.

The sections are no longer classified to the United States Code.

(2) the person shows by a preponderance of the evidence

that the failure of the person to register was not a knowing

and willful failure to register.

NONAPPLICABILITY OF CERTAIN LAWS

SEC. 13. ø50 U.S.C. App. 463¿ (a) Nothing in section 203, 205,

or 207 of title 18 of the United States Code, or in the second sentence of subsection (a) of section 9 of the Act of August 2, 1939 (53

Stat. 1148), entitled ‘‘An Act to prevent pernicious political activities’’, as amended, 1 shall be deemed to apply to any person because

of his appointment under authority of this title or the regulations

made pursuant thereto as an uncompensated official of the Selective Service System, or as an individual to conduct hearings on appeals of persons claiming exemption from combatant or noncombatant training because of conscientious objections, or as a member of

the National Selective Service Appeal Board.

(b) All functions performed under this title shall be excluded

from the operation of the Administrative Procedure Act (60 Stat.

237) 2 except as to the requirements of section 3 of such Act. Notwithstanding the foregoing sentence, no regulation issued under

this Act shall become effective until the expiration of thirty days

following the date on which such regulation has been published in

the Federal Register. After the publication of any regulation and

prior to the date on which such regulation becomes effective, any

person shall be given an opportunity to submit his views to the Director on such regulation, but no formal hearing be required on any

such regulation. The requirements of this subsection may be

waived by the President in the case of any regulation if he (1) determines that compliance with such requirements would materially

impair the national defense, and (2) gives public notice to that effect at the time such regulation is issued.

(c) In computing the lump-sum payments made to Air Force

Reserve Officers under the provisions of section 2 of the Act of

June 16, 1936, as amended (U.S.C., title 10, sec. 300a), and to Reserve officers of the Navy or to their beneficiaries under section 12

of the Act of August 4, 1942, as amended (U.S.C., title 34, sec.

850k 3), no credit shall be allowed for any period of active service

performed from the effective date of this title to the date on which

this title shall cease to be effective. Each such lump-sum payment

shall be prorated for a fractional part of a year of active service in

the case of any reserve officer subject to the provisions of either

such section, if such reserve officer performs continuous active

service for one or more years (inclusive of such service performed

during the period in which this title is effective) and such active

service includes a fractional part of a year immediately prior to the
537 Sec. 16 MILITARY SELECTIVE SERVICE ACT

effective date of this title, or immediately following the date on

which this title shall cease to be effective, or both.

NOTICE OF TITLE; VOLUNTARY ENLISTMENTS

SEC. 15. ø50 U.S.C. App. 465¿ (a) Every person shall be

deemed to have notice of the requirements of this title upon publication by the President of a proclamation or other public notice fixing a time for any registration under section 3.

(b) It shall be the duty of every registrant to keep his local

board informed as to his current address and changes in status as

required by such rules and regulations as may be prescribed by the

President.

(c) If any provision of this title, or the application thereof to

any person or circumstance, is held invalid, the remainder of the

title, and the application of such provision to other persons or circumstances, shall not be affected thereby.

(d) Except as provided in section 4(c), nothing contained in this

title shall be construed to repeal, amend, or suspend the laws now

in force authorizing voluntary enlistment or reenlistment in the

Armed Forces of the United States, including the reserve components thereof, except that no person shall be accepted for enlistment after he has been issued an order to report for induction unless authorized by the Director and the Secretary of Defense and

except that, whenever the Congress or the President has declared

that the national interest is imperiled, voluntary enlistment or reenlistment in such forces, and their reserve components, may be

suspended by the President to such extent as he may deem necessary in the interest of national defense.

(e) In order to assist the Armed Forces in recruiting individuals for voluntary service in the Armed Forces, the Director shall,

upon the request of the Secretary of Defense or the Secretary of

Homeland Security, furnish to the Secretary the names and addresses of individuals registered under this Act. Names and addresses furnished pursuant to the preceding sentence may be used

by the Secretary of Defense or Secretary of Homeland Security only

for recruiting purposes.

DEFINITIONS

SEC. 16. ø50 U.S.C. App. 466¿ When used in this title—

(a) The term ‘‘between the ages of eighteen and twenty-six’’

shall refer to men who have attained the eighteenth anniversary

of the day of their birth and who have not attained the twentysixth anniversary of the day of their birth; and other terms designating different age groups shall be construed in a similar manner.

(b) The term ‘‘United States’’, when used in a geographical

sense, shall be deemed to mean the several States, the District of

Columbia, Puerto Rico, the Virgin Islands, and Guam.

(c) The term ‘‘armed forces’’ shall be deemed to include the

Army, the Navy, the Marine Corps, the Air Force, and the Coast

Guard.

(d) The term ‘‘district court of the United States’’ shall be

deemed to include the courts of the United States for the territories

and possessions of the United States.
Sec. 17 MILITARY SELECTIVE SERVICE ACT 538

(e) The term ‘‘local board’’ shall be deemed to include an intercounty local board in the case of any registrant who is subject to

the jurisdiction or an intercounty local board.

(f) The term ‘‘Director’’ shall be deemed to mean the Director

of the Selective Service System.

(g)(1) The term ‘‘duly ordained minister of religion’’ means a

person who has been ordained, in accordance with the ceremonial,

ritual, or discipline of a church, religious sect, or organization as

established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach

the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who

as his regular and customary vocation preaches and teaches the

principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or

organization.

(2) The term ‘‘regular minister of religion’’ means one who as

his customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he is a

member, without having been formally ordained as a minister of

religion, and who is recognized by such church, sect, or organization as a regular minister.

(3) The term ‘‘regular or duly ordained minister of religion’’

does not include a person who irregularly or incidentally preaches

and teaches the principles of religion of a church, religious sect, or

organization and does not include any person who may have been

duly ordained a minister in accordance with the ceremonial, rite,

or discipline of a church, religious sect or organization, but who

does not regularly, as a bona fide vocation, teach and preach the

principles of religion and administer the ordinances of public worship, as embodied in the creed or principles of his church, sect, or

organization.

(h) The term ‘‘organized unit’’, when used with respect to a reserve component, shall be deemed to mean a unit in which the

members thereof are required satisfactorily to participate in scheduled drills and training periods as prescribed by the Secretary of

Defense.

(i) The term ‘‘reserve components of the armed forces’’ shall,

unless the context otherwise requires, be deemed to include the

federally recognized National Guard of the United States, the federally recognized Air National Guard of the United States, the Officers’ Reserve Corps, the Regular Army Reserve, the Air Force Reserve, the Enlisted Reserve Corps, the Naval Reserve, the Marine

Corps Reserve, and the Coast Guard Reserve, and shall include, in

addition to the foregoing, the Public Health Service Reserve when

serving with the armed forces.

øREPEALS; APPROPRIATIONS; TERMINATION DATE¿

SEC. 17. ø50 U.S.C. App. 467¿ (a) Except as provided in this

title all laws or any parts of laws in conflict with the provisions of

this title are hereby repealed to the extent of such conflict.

(b) There are hereby authorized to be appropriated, out of any

money in the Treasury not otherwise appropriated, such sums as
539 Sec. 18 MILITARY SELECTIVE SERVICE ACT

1The functions of National Security Resources Board under this section were abolished by section 5(a) of Reorganization Plan No. 3 of 1953 (67 Stat. 634). 2The Atomic Energy Commission was abolished by Public Law 93–438, October 1, 1974 (88

Stat. 1233), and its functions were transferred to the Nuclear Regulatory Commission and the

Energy Research and Development Administration (subsequently transferred to the Department

of Energy).

may be necessary to carry out the provisions of this title. All funds

appropriated for the administrative expenses of the National Security Training Commission shall be appropriated directly to the

Commission and all funds appropriated to pay the expenses of

training carried out by the military departments designated by the

Commission shall be appropriated directly to the Department of

Defense.

(c) Notwithstanding any other provisions of this title, no person

shall be inducted for training and service in the Armed Forces after

July 1, 1973, except persons now or hereafter deferred under section 6 of this title after the basis for such deferment ceases to exist.

UTILIZATION OF INDUSTRY

SEC. 18. ø50 U.S.C. App. 468¿ (a) Whenever the President

after consultation with and receiving advice from the National Security Resources Board 1 determines that it is in the interest of the

national security for the Government to obtain prompt delivery of

any articles or materials the procurement of which has been authorized by the Congress exclusively for the use of the armed forces

of the United States, or for the use of the Atomic Energy Commission, 2 he is authorized, through the head of any Government agency, to place with any person operating a plant, mine, or other facility capable of producing such articles or materials an order for such

quantity of such articles or materials as the President deems appropriate, except that no order which requires payments thereunder in excess of $25,000,000 shall be placed with any person, unless the Committees on Armed Service of the Senate and the House

of Representatives have been notified in writing of such proposed

order and 60 days of continuous session of Congress have expired

following the date on which such notice was transmitted to such

committees and neither House of Congress has adopted, within

such 60-day period, a resolution disapproving such order. For purposes of the preceding sentence, the continuity of a session of Congress is broken only by an adjournment of Congress sine die, and

the days on which either House is not in session because of an adjournment of more than 3 days to a day certain are excluded in the

computation of such 60-day period. Any person with whom an order

is placed pursuant to the provisions of this section shall be advised

that such order is placed pursuant to the provisions of this section.

Under any such program of national procurement, the President

shall recognize the valid claim of American small business to participate in such contracts, in such manufactures, and in such distribution of materials, and small business shall be granted a fair

share of the orders placed, exclusively for the use of the armed

forces or for other Federal agencies now or hereafter designated in

this section. For the purposes of this section, a business enterprise

shall be determined to be ‘‘small business’’ if (1) its position in the

trade or industry of which is a part is not dominant, (2) the num-
Sec. 18 MILITARY SELECTIVE SERVICE ACT 540

ber of its employees does not exceed 500, and (3) it is independently owned and operated.

(b) It shall be the duty of any person with whom an order is

placed pursuant to the provisions of subsection (a), (1) to give such

order such precedence with respect to all other orders (Government

or private) theretofore or thereafter placed with such person as the

President may prescribe, and (2) to fill such order within the period

of time prescribed by the President or as soon thereafter as possible.

(c) In case any person with whom an order is placed pursuant

to the provisions of subsection (a) refuses or fails—

(1) to give such order such precedence with respect to all

other orders (Government or private) theretofore or thereafter

placed with such person as the President may have prescribed;

(2) to fill such order within the period of time prescribed

by the President or as soon thereafter as possible as determined by the President;

(3) to produce the kind or quality of articles or materials

ordered; or

(4) to furnish the quantity, kind, and quality of articles or

materials ordered at such price as shall be negotiated between

such person and the Government agency concerned; or in the

event of failure to negotiate a price, to furnish the quantity,

kind, and quality of articles or materials ordered at such price

as he may subsequently be determined to be entitled to receive

under subsection (d);

the President is authorized to take immediate possession of any

plant, mine, or other facility of such person and to operate it,

through any Government agency, for the production of such articles

or materials as may be required by the Government.

(d) Fair and just compensation shall be paid by the United

States (1) for any articles or materials furnished pursuant to an

order placed under subsection (a), or (2) as rental for any plant,

mine, or other facility of which possession is taken under subsection (c).

(e) Nothing contained in this section shall be deemed to render

inapplicable to any plant, mine, or facility of which possession is

taken pursuant to subsection (c) any State or Federal laws concerning the health, safety, security, or employment standards of

employees.

(f) Any person, or any officer of any person as defined in this

section, who willfully fails or refuses to carry out any duty imposed

upon him by subsection (b) of this section shall be guilty of a felony

and, upon conviction thereof, shall be punished by imprisonment

for not more than three years, or by a fine of not more than

$50,000, or by both such imprisonment and fine.

(g)(1) As used in this section—

(A) The term ‘‘person’’ means any individual, firm, company,

association, corporation, or other form of business organization.

(B) The term ‘‘Government agency’’ means any department,

agency, independent establishment, or corporation in the Executive

branch of the United States Government.

(2) For the purposes of this section, a plant, mine, or other facility shall be deemed capable of producing any articles or mate-
541 Sec. 21 MILITARY SELECTIVE SERVICE ACT

rials if it is then producing or furnishing such articles or materials

or if the President after consultation with and receiving advice

from the National Security Resources Board determines that it can

be readily converted to the production or furnishing of such articles

or materials.

(h) The President is empowered, through the Secretary of Defense, to require all producers of steel in the United States to make

available, to individuals, firms, associations, companies, corporations, or organized manufacturing industries having orders for steel

products or steel materials required by the armed forces, such percentages of the steel production of such producers, in equal proportion deemed necessary for the expeditious execution of orders for

such products or materials. Compliance with such requirement

shall be obligatory on all such producers of steel and such requirement shall take precedence over all orders and contracts theretofore placed with such producers. If any such producer of steel or

the responsible head or heads thereof refuses to comply with such

requirement, the President, through the Secretary of Defense, is

authorized to take immediate possession of the plant or plants of

such producer and, through the appropriate branch, bureau, or department of the armed forces, to insure compliance with such requirement. Any such producer of steel or the responsible head or

heads thereof refusing to comply with such requirements shall be

deemed guilty of a felony and upon conviction thereof shall be punished by imprisonment for not more than three years and a fine not

exceeding $50,000.

SAVING PROVISION

SEC. 19. ø50 U.S.C. App. 469¿ Nothing in this title shall be

deemed to amend any provision of the National Security Act of

1947 (61 Stat. 495).

EFFECTIVE DATE

SEC. 20. ø50 U.S.C. App. 470¿ This title shall become effective

immediately; except that unless the President, or the Congress by

concurrent resolution, declares a national emergency after the date

of enactment of this Act, no person shall be inducted or ordered

into active service without his consent under this title within ninety days after the date of its enactment.

AUTHORITY TO ORDER RESERVE COMPONENTS TO ACTIVE FEDERAL

SERVICE

SEC. 21. ø50 U.S.C. App. 471¿ Until July 1, 1953, and subject

to the limitations imposed by section 2 of the Selective Service Act

of 1948, as amended, the President shall be authorized to order

into the active military or naval service of the United States for a

period of not to exceed twenty-four consecutive months, with or

without their consent, any or all members and units of any or all

Reserve components of the Armed Forces of the United States and

retired personnel of the Regular Armed Forces. Unless he is sooner

released under regulations prescribed by the Secretary of the military department concerned, any member of the inactive or volunteer reserve who served on active duty for a period of 12 months
Sec. 22 MILITARY SELECTIVE SERVICE ACT 542

or more in any branch of the Armed Forces between the period of

December 7, 1941, and September 2, 1945, inclusive, who is now

or may hereafter be ordered to active duty pursuant to this section,

shall upon completion of 17 or more months of active duty since

June 25, 1950, if he makes application therefor to the Secretary of

the branch of service in which he is serving, be released from active

duty and shall not thereafter be ordered to active duty for periods

in excess of 30 days without his consent except in time of war or

national emergency hereafter declared by the Congress: Provided,

That the foregoing shall not apply to any member of the inactive

or volunteer reserve ordered to active duty whose rating or specialty is found by the Secretary of the military department concerned to be critical and whose release to inactive duty prior to the

period for which he was ordered to active duty would impair the

efficiency of the military department concerned.

The President may retain the unit organizations and the

equipment thereof, exclusive of the individual members thereof, in

the active Federal service for a total period of five consecutive

years, and upon being relieved by the appropriate Secretary from

active Federal service, National Guard, or Air National Guard

units, shall, insofar as practicable, be returned to their National

Guard or Air National Guard status in their respective States,

Territories, the District of Columbia, and Puerto Rico, with pertinent records, colors, histories, trophies, and other historical

impedimenta.

PROCEDURAL RIGHTS

SEC. 22. ø50 U.S.C. App. 471a¿ (a) It is hereby declared to be

the purpose of this section to guarantee to each registrant asserting a claim before a local or appeal board, a fair hearing consistent

with the informal and expeditious processing which is required by

selective service cases.

(b) Pursuant to such rules and regulations as the President

may prescribe—

(1) Each registrant shall be afforded the opportunity to appear

in person before the local or any appeal board of the Selective Service System to testify and present evidence regarding his status.

(2) Subject to reasonable limitations on the number of witnesses and the total time allotted to each registrant, each registrant shall have the right to present witnesses on his behalf to

the local board.

(3) A quorum of any local board or appeal board shall be

present during the registrant’s personal appearance.

(4) In the event of a decision adverse to the claim of the registrant, the local or appeal board making such decision shall, upon

request, furnish to such registrant a brief written statement of the

reasons for its decision.

øTitle II, consisting largely of amendments to other provisions

of law, was repealed by section 53 of the Act of August 10, 1956

(70A Stat. 678).¿
(543)

PRESIDENTIAL PROCLAMATION NUMBER 4771—REGISTRATION UNDER THE MILITARY

SELECTIVE SERVICE ACT

(July 2, 1980, 45 F.R. 45247; 50 U.S.C. App. 453 note)

(Amended by Proclamation Number 7275, Feb. 22, 2000, 65 F.R. 9199)

Section 3 of the Military Selective Service Act, as amended (50 U.S.C. App. 453),

provides that male citizens of the United States and other male persons residing

in the United States who are between the ages of 18 and 26, except those exempted

by Sections 3 and 6(a) of the Military Selective Service Act, must present themselves for registration at such time or times and place or places, and in such manner

as determined by the President. Section 6(k) provides that such exceptions shall not

continue after the cause for the exemption ceases to exist.

The Congress of the United States has made available the funds (H.J. Res. 521,

approved by me on June 27, 1980 [Pub. L. 96–282, June 27, 1980, 93 Stat. 552]),

which are needed to initiate this registration, beginning with those born on or after

January 1, 1960.

NOW, THEREFORE, I, JIMMY CARTER, President of the United States of America, by the authority vested in me by the Military Selective Service Act, as amended

(50 U.S.C. App. 451 et seq.), do hereby proclaim as follows:

1–1. PERSONS TO BE REGISTERED AND DAYS OF REGISTRATION

1–101. Male citizens of the United States and other males residing in the United

States, unless exempted by the Military Selective Service Act, as amended, who

were born on or after January 1, 1960, and who have attained their eighteenth

birthday, shall present themselves for registration in the manner and at the time

and places as hereinafter provided.

1–102. Persons born in calendar year 1960 shall present themselves for registration on any of the six days beginning Monday, July 21, 1980.

1–103. Persons born in calendar year 1961 shall present themselves for registration on any of the six days beginning Monday, July 28, 1980.

1–104. Persons born in calendar year 1962 shall present themselves for registration on any of the six days beginning Monday, January 5, 1981.

1–105. Persons born on or after January 1, 1963, shall present themselves for registration on the day they attain the 18th anniversary of their birth or on any day

within the period of 60 days beginning 30 days before such date; however, in no

event shall such persons present themselves for registration prior to January 5,

1981.

1–106. Aliens who would be required to present themselves for registration pursuant to Sections 1–101 to 1–105, but who are in processing centers on the dates fixed

for registration, shall present themselves for registration within 30 days after their

release from such centers.

1–107. Aliens and noncitizen nationals of the United States who reside in the

United States, but who are absent from the United States on the days fixed for their

registration, shall present themselves for registration within 30 days after their return to the United States.

1–108. Aliens and noncitizen nationals of the United States who, on or after July

1, 1980, come into and reside in the United States shall present themselves for registration in accordance with Sections 1–101 to 1–105 or within 30 days after coming

into the United States, whichever is later.

1–109. Persons who would have been required to present themselves for registration pursuant to Sections 1–101 to 1–108 but for an exemption pursuant to Section

3 or 6(a) of the Military Selective Service Act, as amended, or but for some condition

beyond their control such as hospitalization or incarceration, shall present themselves for registration within 30 days after the cause for their exempt status ceases

to exist or within 30 days after the termination of the condition which was beyond

their control.
544

1–2. PLACES AND TIMES FOR REGISTRATION

1–201. Persons who are required to be registered and who are in the United

States shall register at the places and by the means designated by the Director of

Selective Service. These places and means may include but are not limited to any

classified United States Post Office, the Selective Service Internet web site, telephonic registration, registration on approved Government forms, registration

through high school and college registrars, and the Selective Service reminder

mailback card.

1–202. Citizens of the United States who are required to be registered and who

are not in the United States , shall register via any of the places and methods authorized by the Director of Selective Service pursuant to paragraph 1-201 or present

themselves at a United States Embassy or Consulate for registration before a diplomatic or consular officer of the United States or before a registrar duly appointed

by a diplomatic or consular officer of the United States.

1–203. The hours for registration in United States Post Offices shall be the business hours during the days of operation of the particular United States Post Office.

The hours for registration in United States Embassies and Consulates shall be those

prescribed by the United States Embassies and Consulates.

1–3. MANNER OF REGISTRATION

1–301. Persons who are required to be registered shall comply with the registration procedures and other rules and regulations prescribed by the Director of Selective Service.

1–302. When reporting for registration each person shall present for inspection

reasonable evidence of his identity. After registration, each person shall keep the

Selective Service System informed of his current address.

Having proclaimed these requirements for registration, I urge everyone, including

employers in the private and public sectors, to cooperate with and assist those persons who are required to be registered in order to ensure a timely and complete registration. Also, I direct the heads of Executive agencies, when requested by the Director of Selective Service and to the extent permitted by law, to cooperate and assist in carrying out the purposes of this Proclamation.

IN WITNESS WHEREOF, I have hereunto set my hand this second day of July,

in the year of our Lord nineteen hundred and eighty, and of the Independence of

the United States of America the two hundred and fourth.

JIMMY CARTER.
545

5. HOMELAND SECURITY AND DEFENSE AGAINST

TERRORISM AND WEAPONS OF MASS DESTRUCTION

a. Defense Biomedical Countermeasures

(Title XVI of the National Defense Authorization Act for Fiscal Year 2004; Public

Law 108–136, approved Nov. 24, 2003)

TITLE XVI—DEFENSE BIOMEDICAL COUNTERMEASURES

SEC. 1601. ø10 U.S.C. 2370a note¿ RESEARCH AND DEVELOPMENT OF DEFENSE BIOMEDICAL COUNTERMEASURES.

(a) IN GENERAL.—The Secretary of Defense (in this section referred to as the ‘‘Secretary’’) shall carry out a program to accelerate

the research, development and procurement of biomedical countermeasures, including but not limited to therapeutics and vaccines,

for the protection of the Armed Forces from attack by one or more

biological, chemical, radiological, or nuclear agents.

(b) INTERAGENCY COOPERATION.—(1) In carrying out the program under subsection (a), the Secretary may enter into interagency agreements and other collaborative undertakings with other

Federal agencies.

(2) The Secretary, through regular, structured, and close consultation with the Secretary of Health and Human Services and

the Secretary of Homeland Security, shall ensure that the activities

of the Department of Defense in carrying out the program are coordinated with, complement, and do not unnecessarily duplicate activities of the Department of Health and Human Services or the

Department of Homeland Security.

(c) EXPEDITED PROCUREMENT AUTHORITY.—(1) For any procurement of property or services for use (as determined by the Secretary) in performing, administering, or supporting biomedical

countermeasures research and development, the Secretary may,

when appropriate, use streamlined acquisition procedures and

other expedited procurement procedures authorized in—

(A) section 32A of the Office of Federal Procurement Policy

Act, as added by section 1443 of this Act; and

(B) section 2371 of title 10, United States Code, and section 845 of the National Defense Authorization Act for Fiscal

Year 1994 (Public Law 103–160; 10 U.S.C. 2371 note).

(2) Notwithstanding paragraph (1) and the provisions of law

referred to in such paragraph, each of the following provisions shall

apply to the procurements described in this subsection to the same

extent that such provisions would apply to such procurements in

the absence of paragraph (1):

(A) Chapter 37 of title 40, United States Code (relating to

contract work hours and safety standards).
FY04 HOMELAND SECURITY 546

(B) Subsections (a) and (b) of section 7 of the Anti-Kickback Act of 1986 (41 U.S.C. 57(a) and (b)).

(C) Section 2313 of title 10, United States Code (relating

to the examination of contractor records).

(3) The Secretary shall institute appropriate internal controls

for use of the authority under paragraph (1), including requirements for documenting the justification for each use of such authority.

(d) DEPARTMENT OF DEFENSE FACILITIES AUTHORITY.—(1) If

the Secretary determines that it is necessary to acquire, lease, construct, or improve laboratories, research facilities, and other real

property of the Department of Defense in order to carry out the

program under this section, the Secretary may do so using the procedures set forth in paragraphs (2), (3), (4), and (5).

(2) The Secretary shall use existing construction authorities

provided by subchapter I of chapter 169 of title 10, United States

Code, to the maximum extent possible.

(3)(A) If the Secretary determines that use of authorities in

paragraph (2) would prevent the Department from meeting a specific facility requirement for the program, the Secretary shall submit to the congressional defense committees advance notification,

which shall include the following:

(i) Certification by the Secretary that use of existing construction authorities would prevent the Department from

meeting the specific facility requirement.

(ii) A detailed explanation of the reasons why existing authorities cannot be used.

(iii) A justification of the facility requirement.

(iv) Construction project data and estimated cost.

(v) Identification of the source or sources of the funds proposed to be expended.

(B) The facility project may be carried out only after the end

of the 21-day period beginning on the date the notification is received by the congressional defense committees.

(4) If the Secretary determines: (A) that the facility is vital to

national security or to the protection of health, safety, or the quality of the environment; and (B) the requirement for the facility is

so urgent that the advance notification in paragraph (3) and the

subsequent 21-day deferral of the facility project would threaten

the life, health, or safety of personnel, or would otherwise jeopardize national security, the Secretary may obligate funds for the

facility and notify the congressional defense committees within

seven days after the date on which appropriated funds are obligated with the information required in paragraph (3).

(5) The Secretary shall submit to the congressional defense

committees a quarterly report detailing any use of the authority

provided by paragraph (4), including costs incurred or to be incurred by the United States as a result of the use of the authority.

(6) Nothing in this section shall be construed to authorize the

Secretary to acquire, construct, lease, or improve a facility having

general utility beyond the specific purposes of the program.

(7) In this subsection, the term ‘‘facility’’ has the meaning

given the term in section 2801(c) of title 10, United States Code.

(e) AUTHORITY FOR PERSONAL SERVICES CONTRACTS.—(1) Subject to paragraph (2), the authority provided by section 1091 of title
547 FY04 HOMELAND SECURITY

10, United States Code, for personal services contracts to carry out

health care responsibilities in medical treatment facilities of the

Department of Defense shall also be available, subject to the same

terms and conditions, for personal services contracts to carry out

research and development activities under this section. The number of individuals whose personal services are obtained under this

subsection may not exceed 30 at any time.

(2) The authority provided by such section 1091 may not be

used for a personal services contract unless the contracting officer

for the contract ensures that—

(A) the services to be procured are urgent or unique; and

(B) it would not be practicable for the Department of Defense to obtain such services by other measures.

(f) STREAMLINED PERSONNEL AUTHORITY.—(1) The Secretary

may appoint highly qualified experts, including scientific and technical personnel, to carry out research and development under this

section in accordance with the authorities provided in section 342

of the National Defense Authorization Act for Fiscal Year 1995

(Public Law 103–337; 108 Stat. 2721), section 1101 of the Strom

Thurmond National Defense Authorization Act for Fiscal Year 1999

(Public Law 105–261), and section 1101 of this Act.

(2) The Secretary may use the authority under paragraph (1)

only upon a determination by the Secretary that use of such authority is necessary to accelerate the research and development

under the program.

(3) The Secretary shall institute appropriate internal controls

for each use of the authority under paragraph (1).

SEC. 1602. ø10 U.S.C. 2302 note¿ PROCUREMENT OF DEFENSE BIOMEDICAL COUNTERMEASURES.

(a) DETERMINATION OF MATERIAL THREATS.—(1) The Secretary

of Defense (in this section referred to as the ‘‘Secretary’’) shall on

an ongoing basis—

(A) assess current and emerging threats of use of biological, chemical, radiological, and nuclear agents; and

(B) identify, on the basis of such assessment, those agents

that present a material risk of use against the Armed Forces.

(2) The Secretary shall on an ongoing basis—

(A) assess the potential consequences to the health of

members of the Armed Forces of use against the Armed Forces

of the agents identified under paragraph (1)(B); and

(B) identify, on the basis of such assessment, those agents

for which countermeasures are necessary to protect the health

of members of the Armed Forces.

(b) ASSESSMENT OF AVAILABILITY AND APPROPRIATENESS OF

COUNTERMEASURES.—The Secretary shall on an ongoing basis assess the availability and appropriateness of specific countermeasures to address specific threats identified under subsection (a).

(c) SECRETARY’S DETERMINATION OF COUNTERMEASURES APPROPRIATE FOR PROCUREMENT.—(1) The Secretary, in accordance with

paragraph (2), shall on an ongoing basis identify specific countermeasures that the Secretary determines to be appropriate for procurement for the Department of Defense stockpile of biomedical

countermeasures.

(2) The Secretary may not identify a specific countermeasure

under paragraph (1) unless the Secretary determines that—
FY04 HOMELAND SECURITY 548

(A) the countermeasure is a qualified countermeasure; and

(B) it is reasonable to expect that producing and delivering, within 5 years, the quantity of that countermeasure required to meet the needs of the Department (as determined by

the Secretary) is feasible.

(d) INTERAGENCY COOPERATION.—(1) Activities of the Secretary

under this section shall be carried out in regular, structured, and

close consultation and coordination with the Secretaries of Homeland Security and Health and Human Services, including the activities described in subsections (a), (b), and (c) and those activities

with respect to interagency agreements described in paragraph (2).

(2) The Secretary may enter into an interagency agreement

with the Secretaries of Homeland Security and Health and Human

Services to provide for acquisition by the Secretary of Defense for

use by the Armed Forces of biomedical countermeasures procured

for the Strategic National Stockpile by the Secretary of Health and

Human Services. The Secretary may transfer such funds to the

Secretary of Health and Human Services as are necessary to carry

out such agreements (including administrative costs of the Secretary of Health and Human Services), and the Secretary of Health

and Human Services may expend any such transferred funds to

procure such countermeasures for use by the Armed Forces, or to

replenish the stockpile. The Secretaries are authorized to establish

such terms and conditions for such agreements as the Secretaries

determine to be in the public interest. The transfer authority provided under this paragraph is in addition to any other transfer authority available to the Secretary.

(e) DEFINITIONS.—In this section:

(1) The term ‘‘qualified countermeasure’’ means a biomedical countermeasure—

(A) that is approved under section 505(a) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355) or licensed under section 351 of the Public Health Service Act

(42 U.S.C. 262), or that is approved under section 515 or

cleared under section 510(k) of the Federal Food, Drug,

and Cosmetic Act (21 U.S.C. 360e and 360) for use as such

a countermeasure to a biological, chemical, radiological, or

nuclear agent identified as a material threat under subsection (a); or

(B) with respect to which the Secretary of Health and

Human Services makes a determination that sufficient and

satisfactory clinical experience or research data (including

data, if available, from preclinical and clinical trials) exists

to support a reasonable conclusion that the product will

qualify for such approval or licensing for use as such a

countermeasure.

(2) The term ‘‘biomedical countermeasure’’ means a drug

(as defined in section 201(g)(1) of the Federal Food, Drug, and

Cosmetic Act (21 U.S.C. 321(g)(1))), device (as defined in section 201(h) of the Federal Food, Drug, and Cosmetic Act (21

U.S.C. 321(h))), or biological product (as defined in section

351(i) of the Public Health Service Act (42 U.S.C. 262(i))) that

is—

(A) used to treat, identify, or prevent harm from any

biological, chemical, radiological, or nuclear agent that
549 FY03 HOMELAND SECURITY

may cause a military health emergency affecting the

Armed Forces; or

(B) used to treat, identify, or prevent harm from a condition that may result in adverse health consequences or

death and may be caused by administering a drug or biological product that is used as described in subparagraph

(A).

(3) The term ‘‘Strategic National Stockpile’’ means the

stockpile established under section 121(a) of the Public Health

and Bioterrorism Preparedness and Response Act of 2002 (42

U.S.C. 300hh–12(a)).

(f) FUNDING.—Of the amount authorized to be appropriated for

the Department of Defense and available within the transfer authority established under section 1001 of this Act for fiscal year

2004 and for each fiscal year thereafter, such sums are authorized

as may be necessary for the costs incurred by the Secretary in the

procurement of countermeasures under this section.

b. Bob Stump National Defense Authorization Act for Fiscal

Year 2003

(Public Law 107–314, approved Dec. 2, 2002))

TITLE XIV—HOMELAND SECURITY

SEC. 1401. ø50 U.S.C. 2312 note¿ TRANSFER OF TECHNOLOGY ITEMS

AND EQUIPMENT IN SUPPORT OF HOMELAND SECURITY.

(a) RESPONSIBLE SENIOR OFFICIAL.—The Secretary of Defense

shall designate a senior official of the Department of Defense to coordinate all Department of Defense efforts to identify, evaluate, deploy, and transfer to Federal, State, and local first responders technology items and equipment in support of homeland security.

(b) DUTIES.—The official designated pursuant to subsection (a)

shall—

(1) identify technology items and equipment developed or

being developed by Department of Defense components that

have the potential to enhance public safety and improve homeland security;

(2) cooperate with appropriate Federal Government officials outside the Department of Defense to evaluate whether

such technology items and equipment would be useful to first

responders;

(3) facilitate the timely transfer, through identification of

appropriate private sector manufacturers, of appropriate technology items and equipment to Federal, State, and local first

responders, in coordination with appropriate Federal Government officials outside the Department of Defense;

(4) identify and eliminate redundant and unnecessary research efforts within the Department of Defense with respect

to technologies to be deployed to first responders;

(5) expedite the advancement of high priority Department

of Defense projects from research through implementation of

initial manufacturing; and

(6) participate in outreach programs established by appropriate Federal Government officials outside the Department of
FY03 HOMELAND SECURITY 550

Defense to communicate with first responders and to facilitate

awareness of available technology items and equipment to support responses to crises.

(c) SUPPORT AGREEMENT.—The official designated pursuant to

subsection (a) shall enter into an appropriate agreement with a

nongovernment entity for such entity to assist the official designated under subsection (a) in carrying out that official’s duties

under this section. Any such agreement shall be entered into using

competitive procedures in compliance with applicable requirements

of law and regulation.

(d) REPORT.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the

congressional defense committees a report on the actions taken to

carry out this section. The report shall include the following:

(1) Identification of the senior official designated pursuant

to subsection (a).

(2) A summary of the actions taken or planned to be taken

to implement subsection (b), including a schedule for planned

actions.

(3) An initial list of technology items and equipment identified pursuant to subsection (b)(1), together with a summary

of any program schedule for the development, deployment, or

transfer of such items and equipment.

(4) A description of any agreement entered into pursuant

to subsection (c).

SEC. 1402. ø10 U.S.C. 113 note¿ COMPREHENSIVE PLAN FOR IMPROVING

THE PREPAREDNESS OF MILITARY INSTALLATIONS FOR

TERRORIST INCIDENTS.

(a) COMPREHENSIVE PLAN.—The Secretary of Defense shall develop a comprehensive plan for improving the preparedness of military installations for preventing and responding to terrorist attacks, including attacks involving the use or threat of use of weapons of mass destruction.

(b) PREPAREDNESS STRATEGY.—The plan under subsection (a)

shall include a preparedness strategy that includes each of the following:

(1) Identification of long-term goals and objectives for improving the preparedness of military installations for preventing and responding to terrorist attacks.

(2) Identification of budget and other resource requirements necessary to achieve those goals and objectives.

(3) Identification of factors beyond the control of the Secretary that could impede the achievement of those goals and

objectives.

(4) A discussion of the extent to which local, regional, or

national military response capabilities are to be developed, integrated, and used.

(5) A discussion of how the Secretary will coordinate the

capabilities referred to in paragraph (4) with local, regional, or

national civilian and other military capabilities.

(c) PERFORMANCE PLAN.—The plan under subsection (a) shall

include a performance plan that includes each of the following:

(1) A reasonable schedule, with milestones, for achieving

the goals and objectives of the strategy under subsection (b).
551 FY03 HOMELAND SECURITY

(2) Performance criteria for measuring progress in achieving those goals and objectives.

(3) A description of the process, together with a discussion

of the resources, necessary to achieve those goals and objectives.

(4) A description of the process for evaluating results in

achieving those goals and objectives.

(d) SUBMITTAL TO CONGRESS.—The Secretary shall submit the

comprehensive plan developed under subsection (a) to the Committee on Armed Services of the Senate and the Committee on

Armed Services of the House of Representatives not later than 180

days after the date of the enactment of this Act.

(e) COMPTROLLER GENERAL REVIEW AND REPORT.—Not later

than 60 days after the date on which the Secretary submits the

comprehensive plan under subsection (a), the Comptroller General

shall review the plan and submit to the committees referred to in

subsection (d) the Comptroller General’s assessment of the plan.

(f) ANNUAL REPORT.—(1) In each of 2004, 2005, and 2006, the

Secretary of Defense shall include a report on the comprehensive

plan developed under subsection (a) with the materials that the

Secretary submits to Congress in support of the budget submitted

by the President that year pursuant to section 1105(a) of title 31,

United States Code.

(2) Each such report shall include—

(A) a discussion of any revision that the Secretary has

made in the comprehensive plan developed under subsection

(a) since the last report under this subsection or, in the case

of the first such report, since the plan was submitted under

subsection (d); and

(B) an assessment of the progress made in achieving the

goals and objectives of the strategy set forth in the plan.

(3) If the Secretary includes in the report for 2004 or 2005

under this subsection a declaration that the goals and objectives of

the preparedness strategy set forth in the comprehensive plan have

been achieved, no further report is required under this subsection.

SEC. 1403. ø10 U.S.C. 12310 note¿ ADDITIONAL WEAPONS OF MASS DESTRUCTION CIVIL SUPPORT TEAMS.

(a) ESTABLISHMENT OF ADDITIONAL TEAMS.—The Secretary of

Defense shall—

(1) establish 23 additional teams designated as Weapons of

Mass Destruction Civil Support Teams, for a total of 55 such

teams; and

(2) ensure that of such 55 teams, there is at least one team

established in each State and territory.

(b) PLAN.—Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit to Congress a plan, in

furtherance of subsection (a), for establishing at least one Weapons

of Mass Destruction Civil Support Team in each State and territory

that does not have such a team as of the date of the enactment of

this Act. The plan shall include the following:

(1) A schedule and budget for manning, training, and

equipping the new teams as rapidly as is possible without jeopardizing the attainment of full effectiveness by the new teams.
Sec. 1708 HOMELAND SECURITY 552

(2) A discussion of whether the mission of the Weapons of

Mass Destruction Civil Support Teams should be expanded

and, if so, how.

(c) DEFINITIONS.—For purposes of this section:

(1) The term ‘‘Weapons of Mass Destruction Civil Support

Team’’ means a team of members of the reserve components of

the Armed Forces that is established under section 12310(c) of

title 10, United States Code, in support of emergency preparedness programs to prepare for or to respond to any emergency

involving the use of a weapon of mass destruction.

(2) The term ‘‘State and territory’’ means each of the several States, the District of Columbia, Puerto Rico, Guam, and

the Virgin Islands.

* * * * * * *

c. National Bio-Weapons Defense Analysis Center

(Section 1708 of the Homeland Security Act of 2002 (Public Law 107–296, approved

Nov. 25, 2002))

SEC. 1708. ø50 U.S.C. 1522 note¿ NATIONAL BIO-WEAPONS DEFENSE

ANALYSIS CENTER.

There is established in the Department of Defense a National

Bio-Weapons Defense Analysis Center, whose mission is to develop

countermeasures to potential attacks by terrorists using weapons of

mass destruction.

d. Chemical Warfare Defense

(Section 247 of the Strom Thurmond National Defense Authorization Act for Fiscal

Year 1999 (Public Law 105–261, approved Oct. 17, 1998))

SEC. 247. ø50 U.S.C. 1522 note¿ CHEMICAL WARFARE DEFENSE.

(a) REVIEW AND MODIFICATION OF POLICIES AND DOCTRINES.—

The Secretary of Defense shall review the policies and doctrines of

the Department of Defense on chemical warfare defense and modify

the policies and doctrine as appropriate to achieve the objectives

set forth in subsection (b).

(b) OBJECTIVES.—The objectives for the modification of policies

and doctrines of the Department of Defense on chemical warfare

defense are as follows:

(1) To provide for adequate protection of personnel from

any exposure to a chemical warfare agent (including chronic

and low-level exposure to a chemical warfare agent) that would

endanger the health of exposed personnel because of the deleterious effects of—

(A) a single exposure to the agent;

(B) exposure to the agent concurrently with other dangerous exposures, such as exposures to—

(i) other potentially toxic substances in the environment, including pesticides, other insect and vermin

control agents, and environmental pollutants;

(ii) low-grade nuclear and electromagnetic radiation present in the environment;
553 Sec. 247 HOMELAND SECURITY

(iii) preventive medications (that are dangerous

when taken concurrently with other dangerous exposures referred to in this paragraph);

(iv) diesel fuel, jet fuel, and other hydrocarbonbased fuels; and

(v) occupational hazards, including battlefield hazards; and

(C) repeated exposures to the agent, or some combination of one or more exposures to the agent and other dangerous exposures referred to in subparagraph (B), over

time.

(2) To provide for—

(A) the prevention of and protection against, and the

detection (including confirmation) of, exposures to a chemical warfare agent (whether intentional or inadvertent) at

levels that, even if not sufficient to endanger health immediately, are greater than the level that is recognized under

Department of Defense policies as being the maximum safe

level of exposure to that agent for the general population;

and

(B) the recording, reporting, coordinating, and retaining of information on possible exposures described in subparagraph (A), including the monitoring of the health effects of exposures on humans and animals, environmental

effects, and ecological effects, and the documenting and reporting of those effects specifically by location.

(3) To provide solutions for the concerns and mission requirements that are specifically applicable for one or more of

the Armed Forces in a protracted conflict when exposures to

chemical agents could be complex, dynamic, and occurring over

an extended period.

(c) RESEARCH PROGRAM.—The Secretary of Defense shall develop and carry out a plan to establish a research program for determining the effects of exposures to chemical warfare agents of the

type described in subsection (b). The research shall be designed to

yield results that can guide the Secretary in the evolution of policy

and doctrine on exposures to chemical warfare agents and to develop new risk assessment methods and instruments with respect

to such exposures. The plan shall state the objectives and scope of

the program and include a 5-year funding plan.

(d) REPORT.—Not later than May 1, 1999, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives a report on the results of the review under subsection

(a) and on the research program developed under subsection (c).

The report shall include the following:

(1) Each modification of chemical warfare defense policy

and doctrine resulting from the review.

(2) Any recommended legislation regarding chemical warfare defense.

(3) The plan for the research program.
Sec. 1401 HOMELAND SECURITY 554

e. Defense Against Weapons of Mass Destruction Act of 1998

(Title XIV of Public Law 105–261, approved Oct. 17, 1998)

TITLE XIV—DOMESTIC PREPAREDNESS FOR DEFENSE

AGAINST WEAPONS OF MASS DESTRUCTION

SEC. 1401. ø50 U.S.C. 2301 note¿ SHORT TITLE.

This title may be cited as the ‘‘Defense Against Weapons of

Mass Destruction Act of 1998’’.

SEC. 1402. ø50 U.S.C. 2301 note¿ DOMESTIC PREPAREDNESS FOR RESPONSE TO THREATS OF TERRORIST USE OF WEAPONS

OF MASS DESTRUCTION.

(a) ENHANCED RESPONSE CAPABILITY.—In light of the continuing potential for terrorist use of weapons of mass destruction

against the United States and the need to develop a more fully coordinated response to that threat on the part of Federal, State, and

local agencies, the President shall act to increase the effectiveness

at the Federal, State, and local level of the domestic emergency

preparedness program for response to terrorist incidents involving

weapons of mass destruction by utilizing the President’s existing

authorities to develop an integrated program that builds upon the

program established under the Defense Against Weapons of Mass

Destruction Act of 1996 (title XIV of Public Law 104–201; 110 Stat.

2714; 50 U.S.C. 2301 et seq.).

(b) REPORT.—Not later than January 31, 1999, the President

shall submit to Congress a report containing information on the actions taken at the Federal, State, and local level to develop an integrated program to prevent and respond to terrorist incidents involving weapons of mass destruction.

SEC. 1403. REPORT ON DOMESTIC EMERGENCY PREPAREDNESS.

øSection 1403 was repealed by 889(b)(2) of the Homeland Security Act of 2002 (Public Law 107–296; 116 Stat. 2251).¿

SEC. 1404. ø50 U.S.C. 2301 note¿ THREAT AND RISK ASSESSMENTS.

(a) THREAT AND RISK ASSESSMENTS.—Assistance to Federal,

State, and local agencies provided under the program under section

1402 shall include the performance of assessments of the threat

and risk of terrorist employment of weapons of mass destruction

against cities and other local areas. Such assessments shall be used

by Federal, State, and local agencies to determine the training and

equipment requirements under this program and shall be performed as a collaborative effort with State and local agencies.

(b) CONDUCT OF ASSESSMENTS.—The Department of Justice, as

lead Federal agency for domestic crisis management in response to

terrorism involving weapons of mass destruction, shall—

(1) conduct any threat and risk assessment performed

under subsection (a) in coordination with appropriate Federal,

State, and local agencies; and

(2) develop procedures and guidance for conduct of the

threat and risk assessment in consultation with officials from

the intelligence community.
555 Sec. 1405 HOMELAND SECURITY

SEC. 1405. ø50 U.S.C. 2301 note¿ ADVISORY PANEL TO ASSESS DOMESTIC

RESPONSE CAPABILITIES FOR TERRORISM INVOLVING

WEAPONS OF MASS DESTRUCTION.

(a) REQUIREMENT FOR PANEL.—The Secretary of Defense, in

consultation with the Attorney General, the Secretary of Energy,

the Secretary of Health and Human Services, and the Director of

the Federal Emergency Management Agency, shall enter into a

contract with a federally funded research and development center

to establish a panel to assess the capabilities for domestic response

to terrorism involving weapons of mass destruction.

(b) COMPOSITION OF PANEL; SELECTION.—(1) The panel shall be

composed of members who shall be private citizens of the United

States with knowledge and expertise in emergency response matters.

(2) Members of the panel shall be selected by the federally

funded research and development center in accordance with the

terms of the contract established pursuant to subsection (a).

(c) PROCEDURES FOR PANEL.—The federally funded research

and development center shall be responsible for establishing appropriate procedures for the panel, including procedures for selection

of a panel chairman.

(d) DUTIES OF PANEL.—The panel shall—

(1) assess Federal agency efforts to enhance domestic preparedness for incidents involving weapons of mass destruction;

(2) assess the progress of Federal training programs for

local emergency responses to incidents involving weapons of

mass destruction;

(3) assess deficiencies in programs for response to incidents involving weapons of mass destruction, including a review of unfunded communications, equipment, and planning

requirements, and the needs of maritime regions;

(4) recommend strategies for ensuring effective coordination with respect to Federal agency weapons of mass destruction response efforts, and for ensuring fully effective local response capabilities for weapons of mass destruction incidents;

and

(5) assess the appropriate roles of State and local government in funding effective local response capabilities.

(e) DEADLINE TO ENTER INTO CONTRACT.—The Secretary of Defense shall enter into the contract required under subsection (a) not

later than 60 days after the date of the enactment of this Act.

(f ) DEADLINE FOR SELECTION OF PANEL MEMBERS.—Selection

of panel members shall be made not later than 30 days after the

date on which the Secretary enters into the contract required by

subsection (a).

(g) INITIAL MEETING OF THE PANEL.—The panel shall conduct

its first meeting not later than 30 days after the date that all the

selections to the panel have been made.

(h) REPORTS.—(1) Not later than 6 months after the date of the

first meeting of the panel, the panel shall submit to the President

and to Congress an initial report setting forth its findings, conclusions, and recommendations for improving Federal, State, and local

domestic emergency preparedness to respond to incidents involving

weapons of mass destruction.
Sec. 234 HOMELAND SECURITY 556

(2) Not later than December 15 of each year, beginning in 1999

and ending in 2003, the panel shall submit to the President and

to the Congress a report setting forth its findings, conclusions, and

recommendations for improving Federal, State, and local domestic

emergency preparedness to respond to incidents involving weapons

of mass destruction.

(i) COOPERATION OF OTHER AGENCIES.—(1) The panel may secure directly from the Department of Defense, the Department of

Energy, the Department of Health and Human Services, the Department of Justice, and the Federal Emergency Management

Agency, or any other Federal department or agency information

that the panel considers necessary for the panel to carry out its duties.

(2) The Attorney General, the Secretary of Defense, the Secretary of Energy, the Secretary of Health and Human Services, the

Director of the Federal Emergency Management Agency, and any

other official of the United States shall provide the panel with full

and timely cooperation in carrying out its duties under this section.

( j) FUNDING.—The Secretary of Defense shall provide the funds

necessary for the panel to carry out its duties from the funds available to the Department of Defense for weapons of mass destruction

preparedness initiatives.

(k) COMPENSATION OF PANEL MEMBERS.—The provisions of

paragraph (4) of section 591(c) of the Foreign Operations, Export

Financing, and Related Programs Appropriations Act, 1999 (as contained in section 101(d) of division A of the Omnibus Consolidated

and Emergency Supplemental Appropriations Act, 1999 (Public

Law 105–277; 112 Stat. 2681–212)), shall apply to members of the

panel in the same manner as to members of the National Commission on Terrorism under that paragraph.

(l) TERMINATION OF THE PANEL.—The panel shall terminate

five years after the date of the appointment of the member selected

as chairman of the panel.

(m) DEFINITION.—In this section, the term ‘‘weapon of mass destruction’’ has the meaning given that term in section 1403(1) of

the Defense Against Weapons of Mass Destruction Act of 1996 (50

U.S.C. 2302(1)).

f. Annual Report on Threat Posed to the United States by

Weapons of Mass Destruction

(Section 234 of the National Defense Authorization Act for Fiscal Year 1998 (Public

Law 105–85, approved Nov. 18, 1997))

SEC. 234. ø50 U.S.C. 2367¿ ANNUAL REPORT ON THREAT POSED TO THE

UNITED STATES BY WEAPONS OF MASS DESTRUCTION,

BALLISTIC

MISSILES, AND CRUISE MISSILES.

(a) ANNUAL REPORT.—The Secretary of Defense shall submit to

Congress by January 30 of each year a report on the threats posed

to the United States and allies of the United States—

(1) by weapons of mass destruction, ballistic missiles, and

cruise missiles; and

(2) by the proliferation of weapons of mass destruction,

ballistic missiles, and cruise missiles.
557 Sec. 234 HOMELAND SECURITY

(b) CONSULTATION.—Each report submitted under subsection

(a) shall be prepared in consultation with the Director of Central

Intelligence.

(c) MATTERS TO BE INCLUDED.—Each report submitted under

subsection (a) shall include the following:

(1) Identification of each foreign country and non-State organization that possesses weapons of mass destruction, ballistic missiles, or cruise missiles, and a description of such

weapons and missiles with respect to each such foreign country

and non-State organization.

(2) A description of the means by which any foreign country and non-State organization that has achieved capability

with respect to weapons of mass destruction, ballistic missiles,

or cruise missiles has achieved that capability, including a description of the international network of foreign countries and

private entities that provide assistance to foreign countries and

non-State organizations in achieving that capability.

(3) An examination of the doctrines that guide the use of

weapons of mass destruction in each foreign country that possesses such weapons.

(4) An examination of the existence and implementation of

the control mechanisms that exist with respect to nuclear

weapons in each foreign country that possesses such weapons.

(5) Identification of each foreign country and non-State organization that seeks to acquire or develop (indigenously or

with foreign assistance) weapons of mass destruction, ballistic

missiles, or cruise missiles, and a description of such weapons

and missiles with respect to each such foreign country and

non-State organization.

(6) An assessment of various possible timelines for the

achievement by foreign countries and non-State organizations

of capability with respect to weapons of mass destruction, ballistic missiles, and cruise missiles, taking into account the

probability of whether the Russian Federation and the People’s

Republic of China will comply with the Missile Technology

Control Regime, the potential availability of assistance from

foreign technical specialists, and the potential for independent

sales by foreign private entities without authorization from

their national governments.

(7) For each foreign country or non-State organization that

has not achieved the capability to target the United States or

its territories with weapons of mass destruction, ballistic missiles, or cruise missiles as of the date of the enactment of this

Act, an estimate of how far in advance the United States is

likely to be warned before such foreign country or non-State organization achieves that capability.

(8) For each foreign country or non-State organization that

has not achieved the capability to target members of the

United States Armed Forces deployed abroad with weapons of

mass destruction, ballistic missiles, or cruise missiles as of the

date of the enactment of this Act, an estimate of how far in advance the United States is likely to be warned before such foreign country or non-State organization achieves that capability.
Sec. 1401 HOMELAND SECURITY 558

(d) CLASSIFICATION.—Each report under subsection (a) shall be

submitted in classified and unclassified form.

g. Defense Against Weapons of Mass Destruction Act of 1996

(Title XIV of Public Law 104–201, approved Sept. 23, 1996)

TITLE XIV—DEFENSE AGAINST WEAPONS OF MASS

DESTRUCTION

SEC. 1401. ø50 U.S.C. 2301 note¿ SHORT TITLE.

This title may be cited as the ‘‘Defense Against Weapons of

Mass Destruction Act of 1996’’.

SEC. 1402. ø50 U.S.C. 2301¿ FINDINGS.

Congress makes the following findings:

(1) Weapons of mass destruction and related materials and

technologies are increasingly available from worldwide sources.

Technical information relating to such weapons is readily

available on the Internet, and raw materials for chemical, biological, and radiological weapons are widely available for legitimate commercial purposes.

(2) The former Soviet Union produced and maintained a

vast array of nuclear, biological, and chemical weapons of mass

destruction.

(3) Many of the states of the former Soviet Union retain

the facilities, materials, and technologies capable of producing

additional quantities of weapons of mass destruction.

(4) The disintegration of the former Soviet Union was accompanied by disruptions of command and control systems, deficiencies in accountability for weapons, weapons-related materials and technologies, economic hardships, and significant

gaps in border control among the states of the former Soviet

Union. The problems of organized crime and corruption in the

states of the former Soviet Union increase the potential for

proliferation of nuclear, radiological, biological, and chemical

weapons and related materials.

(5) The conditions described in paragraph (4) have substantially increased the ability of potentially hostile nations,

terrorist groups, and individuals to acquire weapons of mass

destruction and related materials and technologies from within

the states of the former Soviet Union and from unemployed scientists who worked on those programs.

(6) As a result of such conditions, the capability of potentially hostile nations and terrorist groups to acquire nuclear,

radiological, biological, and chemical weapons is greater than

at any time in history.

(7) The President has identified North Korea, Iraq, Iran,

and Libya as hostile states which already possess some weapons of mass destruction and are developing others.

(8) The acquisition or the development and use of weapons

of mass destruction is well within the capability of many extremist and terrorist movements, acting independently or as

proxies for foreign states.
559 Sec. 1402 HOMELAND SECURITY

(9) Foreign states can transfer weapons to or otherwise aid

extremist and terrorist movements indirectly and with plausible deniability.

(10) Terrorist groups have already conducted chemical attacks against civilian targets in the United States and Japan,

and a radiological attack in Russia.

(11) The potential for the national security of the United

States to be threatened by nuclear, radiological, chemical, or

biological terrorism must be taken seriously.

(12) There is a significant and growing threat of attack by

weapons of mass destruction on targets that are not military

targets in the usual sense of the term.

(13) Concomitantly, the threat posed to the citizens of the

United States by nuclear, radiological, biological, and chemical

weapons delivered by unconventional means is significant and

growing.

(14) Mass terror may result from terrorist incidents involving nuclear, radiological, biological, or chemical materials.

(15) Facilities required for production of radiological, biological, and chemical weapons are much smaller and harder to

detect than nuclear weapons facilities, and biological and

chemical weapons can be deployed by alternative delivery

means other than long-range ballistic missiles.

(16) Covert or unconventional means of delivery of nuclear,

radiological, biological, and chemical weapons include cargo

ships, passenger aircraft, commercial and private vehicles and

vessels, and commercial cargo shipments routed through multiple destinations.

(17) Traditional arms control efforts assume large state efforts with detectable manufacturing programs and weapons

production programs, but are ineffective in monitoring and controlling smaller, though potentially more dangerous, unconventional proliferation efforts.

(18) Conventional counterproliferation efforts would do little to detect or prevent the rapid development of a capability

to suddenly manufacture several hundred chemical or biological weapons with nothing but commercial supplies and equipment.

(19) The United States lacks adequate planning and countermeasures to address the threat of nuclear, radiological, biological, and chemical terrorism.

(20) The Department of Energy has established a Nuclear

Emergency Response Team which is available in case of nuclear or radiological emergencies, but no comparable units exist

to deal with emergencies involving biological or chemical weapons or related materials.

(21) State and local emergency response personnel are not

adequately prepared or trained for incidents involving nuclear,

radiological, biological, or chemical materials.

(22) Exercises of the Federal, State, and local response to

nuclear, radiological, biological, or chemical terrorism have revealed serious deficiencies in preparedness and severe problems of coordination.

(23) The development of, and allocation of responsibilities

for, effective countermeasures to nuclear, radiological, biologi-
Sec. 1403 HOMELAND SECURITY 560

cal, or chemical terrorism in the United States requires wellcoordinated participation of many Federal agencies, and careful planning by the Federal Government and State and local

governments.

(24) Training and exercises can significantly improve the

preparedness of State and local emergency response personnel

for emergencies involving nuclear, radiological, biological, or

chemical weapons or related materials.

(25) Sharing of the expertise and capabilities of the Department of Defense, which traditionally has provided assistance to Federal, State, and local officials in neutralizing, dismantling, and disposing of explosive ordnance, as well as radiological, biological, and chemical materials, can be a vital contribution to the development and deployment of countermeasures against nuclear, biological, and chemical weapons of

mass destruction.

(26) The United States lacks effective policy coordination

regarding the threat posed by the proliferation of weapons of

mass destruction.

SEC. 1403. ø50 U.S.C. 2302¿ DEFINITIONS.

In this title:

(1) The term ‘‘weapon of mass destruction’’ means any

weapon or device that is intended, or has the capability, to

cause death or serious bodily injury to a significant number of

people through the release, dissemination, or impact of—

(A) toxic or poisonous chemicals or their precursors;

(B) a disease organism; or

(C) radiation or radioactivity.

(2) The term ‘‘independent states of the former Soviet

Union’’ has the meaning given that term in section 3 of the

FREEDOM Support Act (22 U.S.C. 5801).

(3) The term ‘‘highly enriched uranium’’ means uranium

enriched to 20 percent or more in the isotope U–235.

Subtitle A—Domestic Preparedness

SEC. 1411. ø50 U.S.C. 2311¿ RESPONSE TO THREATS OF TERRORIST USE

OF WEAPONS OF MASS DESTRUCTION.

(a) ENHANCED RESPONSE CAPABILITY.—In light of the potential

for terrorist use of weapons of mass destruction against the United

States, the President shall take immediate action—

(1) to enhance the capability of the Federal Government to

prevent and respond to terrorist incidents involving weapons of

mass destruction; and

(2) to provide enhanced support to improve the capabilities

of State and local emergency response agencies to prevent and

respond to such incidents at both the national and the local

level.

(b) REPORT REQUIRED.—Not later than January 31, 1997, the

President shall transmit to Congress a report containing—

(1) an assessment of the capabilities of the Federal Government to prevent and respond to terrorist incidents involving

weapons of mass destruction and to support State and local

prevention and response efforts;
561 Sec. 1412 HOMELAND SECURITY

(2) requirements for improvements in those capabilities;

and

(3) the measures that should be taken to achieve such improvements, including additional resources and legislative authorities that would be required.

SEC. 1412. ø50 U.S.C. 2312¿ EMERGENCY RESPONSE ASSISTANCE PROGRAM.

(a) PROGRAM REQUIRED.—(1) The Secretary of Defense shall

carry out a program to provide civilian personnel of Federal, State,

and local agencies with training and expert advice regarding emergency responses to a use or threatened use of a weapon of mass destruction or related materials.

(2) The President may designate the head of an agency other

than the Department of Defense to assume the responsibility for

carrying out the program on or after October 1, 1999, and relieve

the Secretary of Defense of that responsibility upon the assumption

of the responsibility by the designated official.

(3) In this section, the official responsible for carrying out the

program is referred to as the ‘‘lead official’’.

(b) COORDINATION.—In carrying out the program, the lead official shall coordinate with each of the following officials who is not

serving as the lead official:

(1) The Director of the Federal Emergency Management

Agency.

(2) The Secretary of Energy.

(3) The Secretary of Defense.

(4) The heads of any other Federal, State, and local government agencies that have an expertise or responsibilities relevant to emergency responses described in subsection (a)(1).

(c) ELIGIBLE PARTICIPANTS.—The civilian personnel eligible to

receive assistance under the program are civilian personnel of Federal, State, and local agencies who have emergency preparedness

responsibilities.

(d) INVOLVEMENT OF OTHER FEDERAL AGENCIES.—(1) The lead

official may use personnel and capabilities of Federal agencies outside the agency of the lead official to provide training and expert

advice under the program.

(2)(A) Personnel used under paragraph (1) shall be personnel

who have special skills relevant to the particular assistance that

the personnel are to provide.

(B) Capabilities used under paragraph (1) shall be capabilities

that are especially relevant to the particular assistance for which

the capabilities are used.

(3) If the lead official is not the Secretary of Defense, and requests assistance from the Department of Defense that, in the

judgment of the Secretary of Defense would affect military readiness or adversely affect national security, the Secretary of Defense

may appeal the request for Department of Defense assistance by

the lead official to the President.

(e) AVAILABLE ASSISTANCE.—Assistance available under this

program shall include the following:

(1) Training in the use, operation, and maintenance of

equipment for—

(A) detecting a chemical or biological agent or nuclear

radiation;
Sec. 1413 HOMELAND SECURITY 562

(B) monitoring the presence of such an agent or radiation;

(C) protecting emergency personnel and the public;

and

(D) decontamination.

(2) Establishment of a designated telephonic link (commonly referred to as a ‘‘hot line’’) to a designated source of relevant data and expert advice for the use of State or local officials responding to emergencies involving a weapon of mass destruction or related materials.

(3) Use of the National Guard and other reserve components for purposes authorized under this section that are specified by the lead official (with the concurrence of the Secretary

of Defense if the Secretary is not the lead official).

(4) Loan of appropriate equipment.

(5) A conveyance of ownership of United States property to

a State or local government, without cost and without regard

to subsection (f) and title II of the Federal Property and Administrative Services Act of 1949 (or any other provision of law

relating to the disposal of property of the United States), if the

property is equipment, or equipment and related materials,

that is in the possession of the State or local government on

the date of the enactment of the National Defense Authorization Act for Fiscal Year 2002 pursuant to a loan of the property

as assistance under this section.

(f) LIMITATIONS ON DEPARTMENT OF DEFENSE ASSISTANCE TO

LAW ENFORCEMENT AGENCIES.—Assistance provided by the Department of Defense to law enforcement agencies under this section

shall be provided under the authority of, and subject to the restrictions provided in, chapter 18 of title 10, United States Code.

(g) ADMINISTRATION OF DEPARTMENT OF DEFENSE ASSISTANCE.—The Secretary of Defense shall designate an official within

the Department of Defense to serve as the executive agent of the

Secretary for the coordination of the provision of Department of Defense assistance under this section.

(h) FUNDING.—(1) Of the total amount authorized to be appropriated under section 301, $35,000,000 is available for the program

required under this section.

(2) Of the amount available for the program pursuant to paragraph (1), $10,500,000 is available for use by the Secretary of Defense to assist the Secretary of Health and Human Services in the

establishment of metropolitan emergency medical response teams

(commonly referred to as ‘‘Metropolitan Medical Strike Force

Teams’’) to provide medical services that are necessary or potentially necessary by reason of a use or threatened use of a weapon

of mass destruction.

(3) The amount available for the program under paragraph (1)

is in addition to any other amounts authorized to be appropriated

for the program under section 301.

SEC. 1413. ø50 U.S.C. 2313¿ NUCLEAR, CHEMICAL, AND BIOLOGICAL

EMERGENCY RESPONSE.

(a) DEPARTMENT OF DEFENSE.—The Secretary of Defense shall

designate an official within the Department of Defense as the executive agent for—
563 Sec. 1415 HOMELAND SECURITY

(1) the coordination of Department of Defense assistance to

Federal, State, and local officials in responding to threats involving biological or chemical weapons or related materials or

technologies, including assistance in identifying, neutralizing,

dismantling, and disposing of biological and chemical weapons

and related materials and technologies; and

(2) the coordination of Department of Defense assistance to

the Department of Energy in carrying out that department’s

responsibilities under subsection (b).

(b) DEPARTMENT OF ENERGY.—The Secretary of Energy shall

designate an official within the Department of Energy as the executive agent for—

(1) the coordination of Department of Energy assistance to

Federal, State, and local officials in responding to threats involving nuclear, chemical, and biological weapons or related

materials or technologies, including assistance in identifying,

neutralizing, dismantling, and disposing of nuclear weapons

and related materials and technologies; and

(2) the coordination of Department of Energy assistance to

the Department of Defense in carrying out that department’s

responsibilities under subsection (a).

(c) FUNDING.—Of the total amount authorized to be appropriated under section 301, $15,000,000 is available for providing

assistance described in subsection (a).

SEC. 1414. ø50 U.S.C. 2314¿ CHEMICAL-BIOLOGICAL EMERGENCY RESPONSE TEAM.

(a) DEPARTMENT OF DEFENSE RAPID RESPONSE TEAM.—The

Secretary of Defense shall develop and maintain at least one domestic terrorism rapid response team composed of members of the

Armed Forces and employees of the Department of Defense who

are capable of aiding Federal, State, and local officials in the detection, neutralization, containment, dismantlement, and disposal of

weapons of mass destruction containing chemical, biological, or related materials.

(b) ADDITION TO FEDERAL RESPONSE PLAN.—Not later than December 31, 1997, the Director of the Federal Emergency Management Agency shall develop and incorporate into existing Federal

emergency response plans and programs prepared under section

611(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5196(b)) guidance on the use and deployment of the rapid response teams established under this section to

respond to emergencies involving weapons of mass destruction. The

Director shall carry out this subsection in consultation with the

Secretary of Defense and the heads of other Federal agencies involved with the emergency response plans.

SEC. 1415. ø50 U.S.C. 2315¿ TESTING OF PREPAREDNESS FOR EMERGENCIES INVOLVING NUCLEAR, RADIOLOGICAL, CHEMICAL, AND BIOLOGICAL WEAPONS.

(a) EMERGENCIES INVOLVING CHEMICAL OR BIOLOGICAL

WEAPONS.—(1) The Secretary of Defense shall develop and carry

out a program for testing and improving the responses of Federal,

State, and local agencies to emergencies involving biological weapons and related materials and emergencies involving chemical

weapons and related materials.
Sec. 1416 HOMELAND SECURITY 564

(2) The program shall include exercises to be carried out during each of fiscal years 1997 through 2013.

(3) In developing and carrying out the program, the Secretary

shall coordinate with the Director of the Federal Bureau of Investigation, the Director of the Federal Emergency Management Agency, the Secretary of Energy, and the heads of any other Federal,

State, and local government agencies that have an expertise or responsibilities relevant to emergencies described in paragraph (1).

(b) EMERGENCIES INVOLVING NUCLEAR AND RADIOLOGICAL

WEAPONS.—(1) The Secretary of Energy shall develop and carry out

a program for testing and improving the responses of Federal,

State, and local agencies to emergencies involving nuclear and radiological weapons and related materials.

(2) The program shall include exercises to be carried out during each of fiscal years 1997 through 2013.

(3) In developing and carrying out the program, the Secretary

shall coordinate with the Director of the Federal Bureau of Investigation, the Director of the Federal Emergency Management Agency, the Secretary of Defense, and the heads of any other Federal,

State, and local government agencies that have an expertise or responsibilities relevant to emergencies described in paragraph (1).

(c) ANNUAL REVISIONS OF PROGRAMS.—The official responsible

for carrying out a program developed under subsection (a) or (b)

shall revise the program not later than June 1 in each fiscal year

covered by the program. The revisions shall include adjustments

that the official determines necessary or appropriate on the basis

of the lessons learned from the exercise or exercises carried out

under the program in the fiscal year, including lessons learned regarding coordination problems and equipment deficiencies.

(d) OPTION TO TRANSFER RESPONSIBILITY.—(1) The President

may designate the head of an agency outside the Department of

Defense to assume the responsibility for carrying out the program

developed under subsection (a) beginning on or after October 1,

1999, and relieve the Secretary of Defense of that responsibility

upon the assumption of the responsibility by the designated official.

(2) The President may designate the head of an agency outside

the Department of Energy to assume the responsibility for carrying

out the program developed under subsection (b) beginning on or

after October 1, 1999, and relieve the Secretary of Energy of that

responsibility upon the assumption of the responsibility by the designated official.

(e) FUNDING.—Of the total amount authorized to be appropriated under section 301, $15,000,000 is available for the development and execution of the programs required by this section, including the participation of State and local agencies in exercises

carried out under the programs.

SEC. 1416. ø50 U.S.C. 2316¿ MILITARY ASSISTANCE TO CIVILIAN LAW

ENFORCEMENT OFFICIALS IN EMERGENCY SITUATIONS

INVOLVING BIOLOGICAL OR CHEMICAL WEAPONS.

[Subsections (a), (b), and (c) omitted—Amendments]

(d) CIVILIAN EXPERTISE.—The President shall take reasonable

measures to reduce the reliance of civilian law enforcement officials

on Department of Defense resources to counter the threat posed by

the use or potential use of biological and chemical weapons of mass

destruction within the United States. The measures shall include—
565 Sec. 1417 HOMELAND SECURITY

(1) actions to increase civilian law enforcement expertise to

counter such a threat; and

(2) actions to improve coordination between civilian law

enforcement officials and other civilian sources of expertise,

within and outside the Federal Government, to counter such a

threat.

(e) REPORTS.—The President shall submit to Congress the following reports:

(1) Not later than 90 days after the date of the enactment

of this Act, a report describing the respective policy functions

and operational roles of Federal agencies in countering the

threat posed by the use or potential use of biological and chemical weapons of mass destruction within the United States.

(2) Not later than one year after such date, a report

describing—

(A) the actions planned to be taken to carry out subsection (d); and

(B) the costs of such actions.

(3) Not later than three years after such date, a report updating the information provided in the reports submitted pursuant to paragraphs (1) and (2), including the measures taken

pursuant to subsection (d).

SEC. 1417. ø50 U.S.C. 2317¿ RAPID RESPONSE INFORMATION SYSTEM.

(a) INVENTORY OF RAPID RESPONSE ASSETS.—(1) The head of

each Federal Response Plan agency shall develop and maintain an

inventory of physical equipment and assets under the jurisdiction

of that agency that could be made available to aid State and local

officials in search and rescue and other disaster management and

mitigation efforts associated with an emergency involving weapons

of mass destruction. The agency head shall submit a copy of the inventory, and any updates of the inventory, to the Director of the

Federal Emergency Management Agency for inclusion in the master inventory required under subsection (b).

(2) Each inventory shall include a separate listing of any

equipment that is excess to the needs of that agency and could be

considered for disposal as excess or surplus property for use for response and training with regard to emergencies involving weapons

of mass destruction.

(b) MASTER INVENTORY.—The Director of the Federal Emergency Management Agency shall compile and maintain a

comprehensive listing of all inventories prepared under subsection

(a). The first such master list shall be completed not later than December 31, 1997, and shall be updated annually thereafter.

(c) ADDITION TO FEDERAL RESPONSE PLAN.—Not later than December 31, 1997, the Director of the Federal Emergency Management Agency shall develop and incorporate into existing Federal

emergency response plans and programs prepared under section

611(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5196(b)) guidance on accessing and using

the physical equipment and assets included in the master list developed under subsection to respond to emergencies involving

weapons of mass destruction.

(d) DATABASE ON CHEMICAL AND BIOLOGICAL MATERIALS.—The

Director of the Federal Emergency Management Agency, in con-
Sec. 1421 HOMELAND SECURITY 566

sultation with the Secretary of Defense, shall prepare a database

on chemical and biological agents and munitions characteristics

and safety precautions for civilian use. The initial design and compilation of the database shall be completed not later than December 31, 1997.

(e) ACCESS TO INVENTORY AND DATABASE.—The Director of the

Federal Emergency Management Agency shall design and maintain

a system to give Federal, State, and local officials access to the inventory listing and database maintained under this section in the

event of an emergency involving weapons of mass destruction or to

prepare and train to respond to such an emergency. The system

shall include a secure but accessible emergency response hotline to

access information and request assistance.

Subtitle B—Interdiction of Weapons of Mass Destruction

and Related Materials

SEC. 1421. ø50 U.S.C. 2331¿ PROCUREMENT OF DETECTION EQUIPMENT

UNITED STATES BORDER SECURITY.

Of the amount authorized to be appropriated by section 301,

$15,000,000 is available for the procurement of—

(1) equipment capable of detecting the movement of weapons of mass destruction and related materials into the United

States;

(2) equipment capable of interdicting the movement of

weapons of mass destruction and related materials into the

United States; and

(3) materials and technologies related to use of equipment

described in paragraph (1) or (2).

SEC. 1422. EXTENSION OF COVERAGE OF INTERNATIONAL EMERGENCY ECONOMIC POWERS ACT.

[Omitted—Amendment]

SEC. 1423. ø50 U.S.C. 2332¿ SENSE OF CONGRESS CONCERNING CRIMINAL PENALTIES.

(a) SENSE OF CONGRESS CONCERNING INADEQUACY OF SENTENCING GUIDELINES.—It is the sense of Congress that the sentencing guidelines prescribed by the United States Sentencing

Commission for the offenses of importation, attempted importation,

exportation, and attempted exportation of nuclear, biological, and

chemical weapons materials constitute inadequate punishment for

such offenses.

(b) URGING OF REVISON TO GUIDELINES.—Congress urges the

United States Sentencing Commission to revise the relevant sentencing guidelines to provide for increased penalties for offenses relating to importation, attempted importation, exportation, and attempted exportation of nuclear, biological, or chemical weapons or

related materials or technologies under the following provisions of

law:

(1) Section 11 of the Export Administration Act of 1979 (50

U.S.C. App. 2410).

(2) Sections 38 and 40 of the Arms Export Control Act (22

U.S.C. 2778 and 2780).

(3) The International Emergency Economic Powers Act

(50 U.S.C. 1701 et seq.).
567 Sec. 1432 HOMELAND SECURITY

(4) Section 309(c) of the Nuclear Non-Proliferation Act of

1978 (42 U.S.C. 2139a(c))).

SEC. 1424. ø50 U.S.C. 2333¿ INTERNATIONAL BORDER SECURITY.

(a) SECRETARY OF DEFENSE RESPONSIBILITY.—The Secretary of

Defense, in consultation and cooperation with the Commissioner of

Customs, shall carry out programs for assisting customs officials

and border guard officials in the independent states of the former

Soviet Union, the Baltic states, and other countries of Eastern Europe in preventing unauthorized transfer and transportation of nuclear, biological, and chemical weapons and related materials.

Training, expert advice, maintenance of equipment, loan of equipment, and audits may be provided under or in connection with the

programs.

(b) FUNDING.—Of the total amount authorized to be appropriated by section 301, $15,000,000 is available for carrying out the

programs referred to in subsection (a).

(c) ASSISTANCE TO STATES OF THE FORMER SOVIET UNION.—Assistance under programs referred to in subsection (a) may

(notwithstanding any provision of law prohibiting the extension of

foreign assistance to any of the newly independent states of the

former Soviet Union) be extended to include an independent state

of the former Soviet Union if the President certifies to Congress

that it is in the national interest of the United States to extend assistance under this section to that state.

Subtitle C—Control and Disposition of Weapons of Mass Destruction and Related Materials Threatening the United

States

SEC. 1431. COVERAGE OF WEAPONS-USABLE FISSILE MATERIALS IN

COOPERATIVE THREAT REDUCTION PROGRAMS ON

ELIMINATION OR TRANSPORTATION OF NUCLEAR

WEAPONS.

[Omitted—Amendment]

SEC. 1432. ø50 U.S.C. 2341¿ ELIMINATION OF PLUTONIUM PRODUCTION.

(a) REPLACEMENT PROGRAM.—The Secretary of Energy, in consultation with the Secretary of Defense, shall develop a cooperative

program with the Government of Russia to eliminate the production of weapons grade plutonium by modifying or replacing the reactor cores at Tomsk–7 and Krasnoyarsk–26 with reactor cores

that are less suitable for the production of weapons-grade plutonium.

(b) PROGRAM REQUIREMENTS.—(1) The program shall be designed to achieve completion of the modifications or replacements

of the reactor cores within three years after the modification or replacement activities under the program are begun.

(2) The plan for the program shall—

(A) specify—

(i) successive steps for the modification or replacement

of the reactor cores; and

(ii) clearly defined milestones to be achieved; and

(B) include estimates of the costs of the program.

(c) SUBMISSION OF PROGRAM PLAN TO CONGRESS.—Not later

than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to Congress—
Sec. 1441 HOMELAND SECURITY 568

(1) a plan for the program under subsection (a);

(2) an estimate of the United States funding that is necessary for carrying out the activities under the program for

each fiscal year covered by the program; and

(3) a comparison of the benefits of the program with the

benefits of other nonproliferation programs.

Subtitle D—Coordination of Policy and Countermeasures

Against Proliferation of Weapons of Mass Destruction

SEC. 1441. ø50 U.S.C. 2351¿ NATIONAL COORDINATOR ON NONPROLIFERATION.

(a) DESIGNATION OF POSITION.—The President shall designate

an individual to serve in the Executive Office of the President as

the National Coordinator for Nonproliferation Matters.

(b) DUTIES.—The Coordinator, under the direction of the National Security Council, shall advise and assist the

President by—

(1) advising the President on nonproliferation of weapons

of mass destruction, including issues related to terrorism, arms

control, and international organized crime;

(2) chairing the Committee on Nonproliferation of the National Security Council; and

(3) taking such actions as are necessary to ensure that

there is appropriate emphasis in, cooperation on, and coordination of, nonproliferation research efforts of the United States,

including activities of Federal agencies as well as activities of

contractors funded by the Federal Government.

(c) ALLOCATION OF FUNDS.—Of the total amount authorized to

be appropriated under section 301, $2,000,000 is available to the

Department of Defense for carrying out research referred to in subsection (b)(3).

SEC. 1442. ø50 U.S.C. 2352¿ NATIONAL SECURITY COUNCIL COMMITTEE

ON NONPROLIFERATION.

(a) ESTABLISHMENT.—The Committee on Nonproliferation (in

this section referred to as the ‘‘Committee’’) is established as a committee of the National Security Council.

(b) MEMBERSHIP.—(1) The Committee shall be composed of representatives of the following:

(A) The Secretary of State.

(B) The Secretary of Defense.

(C) The Director of Central Intelligence.

(D) The Attorney General.

(E) The Secretary of Energy.

(F) The Administrator of the Federal Emergency Management Agency.

(G) The Secretary of the Treasury.

(H) The Secretary of Commerce.

(I) Such other members as the President may designate.

(2) The National Coordinator for Nonproliferation Matters

shall chair the Committee on Nonproliferation.

(c) RESPONSIBILITIES.—The Committee has the following responsibilities:

(1) To review and coordinate Federal programs, policies,

and directives relating to the proliferation of weapons of mass
569 Sec. 1443 HOMELAND SECURITY

destruction and related materials and technologies, including

matters relating to terrorism and international organized

crime.

(2) To make recommendations through the National Security Council to the President regarding the following:

(A) Integrated national policies for countering the

threats posed by weapons of mass destruction.

(B) Options for integrating Federal agency budgets for

countering such threats.

(C) Means to ensure that Federal, State, and local governments have adequate capabilities to manage crises involving nuclear, radiological, biological, or chemical weapons or related materials or technologies, and to manage

the consequences of a use of such weapon or related materials or technologies, and that use of those capabilities is

coordinated.

(D) Means to ensure appropriate cooperation on, and

coordination of, the following:

(i) Preventing the smuggling of weapons of mass

destruction and related materials and technologies.

(ii) Promoting domestic and international law enforcement efforts against proliferation-related efforts.

(iii) Countering the involvement of organized

crime groups in proliferation-related activities.

(iv) Safeguarding weapons of mass destruction

materials and related technologies.

(v) Improving coordination and cooperation among

intelligence activities, law enforcement, and the Departments of Defense, State, Commerce, and Energy

in support of nonproliferation and counterproliferation

efforts.

(vi) Improving export controls over materials and

technologies that can contribute to the acquisition of

weapons of mass destruction.

(vii) Reducing proliferation of weapons of mass destruction and related materials and technologies.

SEC. 1443. ø50 U.S.C. 2353¿ COMPREHENSIVE PREPAREDNESS PROGRAM.

(a) PROGRAM REQUIRED.—The President, acting through the

Committee on Nonproliferation established under section 1442,

shall develop a comprehensive program for carrying out this title.

(b) CONTENT OF PROGRAM.—The program set forth in the report shall include specific plans as follows:

(1) Plans for countering proliferation of weapons of mass

destruction and related materials and technologies.

(2) Plans for training and equipping Federal, State, and

local officials for managing a crisis involving a use or threatened use of a weapon of mass destruction, including the consequences of the use of such a weapon.

(3) Plans for providing for regular sharing of information

among intelligence, law enforcement, and customs agencies.

(4) Plans for training and equipping law enforcement

units, customs services, and border security personnel to

counter the smuggling of weapons of mass destruction and related materials and technologies.
Sec. 1444 HOMELAND SECURITY 570

(5) Plans for establishing appropriate centers for analyzing

seized nuclear, radiological, biological, and chemical weapons,

and related materials and technologies.

(6) Plans for establishing in the United States appropriate

legal controls and authorities relating to the exporting of nuclear, radiological, biological, and chemical weapons, and related materials and technologies.

(7) Plans for encouraging and assisting governments of foreign countries to implement and enforce laws that set forth appropriate penalties for offenses regarding the smuggling of

weapons of mass destruction and related materials and technologies.

(8) Plans for building the confidence of the United States

and Russia in each other’s controls over United States and

Russian nuclear weapons and fissile materials, including plans

for verifying the dismantlement of nuclear weapons.

(9) Plans for reducing United States and Russian stockpiles of excess plutonium, reflecting—

(A) consideration of the desirability and feasibility of

a United States-Russian agreement governing fissile material disposition and the specific technologies and approaches to be used for disposition of excess plutonium;

and

(B) an assessment of the options for United States cooperation with Russia in the disposition of Russian plutonium.

(10) Plans for studying the merits and costs of establishing

a global network of means for detecting and responding to terroristic or other criminal use of biological agents against people

or other forms of life in the United States or any foreign country.

(c) REPORT.—(1) At the same time that the President submits

the budget for fiscal year 1998 to Congress pursuant to section

1105(a) of title 31, United States Code, the President shall submit

to Congress a report that sets forth the comprehensive program developed under subsection (a).

(2) The report shall include the following:

(A) The specific plans for the program that are required

under subsection (b).

(B) Estimates of the funds necessary, by agency or department, for carrying out such plans in fiscal year 1998 and the

following five fiscal years.

(3) The report shall be in an unclassified form. If there is a

classified version of the report, the President shall submit the classified version at the same time.

SEC. 1444. ø50 U.S.C. 2354¿ TERMINATION.

After September 30, 1999, the President—

(1) is not required to maintain a National Coordinator for

Nonproliferation Matters under section 1441; and

(2) may terminate the Committee on Nonproliferation established under section 1442.
571 Sec. 1454 HOMELAND SECURITY

Subtitle E—Miscellaneous

SEC. 1451. ø50 U.S.C. 2361¿ SENSE OF CONGRESS CONCERNING CONTRACTING POLICY.

It is the sense of Congress that the Secretary of Defense, the

Secretary of Energy, the Secretary of the Treasury, and the Secretary of State, to the extent authorized by law, should—

(1) contract directly with suppliers in independent states of

the former Soviet Union when such action would—

(A) result in significant savings of the programs referred to in subtitle C; and

(B) substantially expedite completion of the programs

referred to in subtitle C; and

(2) seek means to use innovative contracting approaches to

avoid delay and increase the effectiveness of such programs

and of the exercise of such authorities.

SEC. 1452. ø50 U.S.C. 2362¿ TRANSFERS OF ALLOCATIONS AMONG COOPERATIVE THREAT REDUCTION PROGRAMS.

Congress finds that—

(1) the various Cooperative Threat Reduction programs are

being carried out at different rates in the various countries

covered by such programs; and

(2) it is necessary to authorize transfers of funding allocations among the various programs in order to maximize the effectiveness of United States efforts under such programs.

SEC. 1453. ø50 U.S.C. 2363¿ SENSE OF CONGRESS CONCERNING ASSISTANCE TO STATES OF FORMER SOVIET UNION.

It is the sense of Congress that—

(1) the Cooperative Threat Reduction programs and other

United States programs authorized in title XIV of the National

Defense Authorization Act for Fiscal Year 1993 (Public Law

102–484; 22 U.S.C. 5901 et seq.) should be expanded by offering assistance under those programs to other independent

states of the former Soviet Union in addition to Russia,

Ukraine, Kazakstan, and Belarus; and

(2) the President should offer assistance to additional independent states of the former Soviet Union in each case in

which the participation of such states would benefit national

security interests of the United States by improving border

controls and safeguards over materials and technology associated with weapons of mass destruction.

SEC. 1454. ø50 U.S.C. 2364¿ PURCHASE OF LOW-ENRICHED URANIUM

DERIVED FROM RUSSIAN HIGHLY ENRICHED URANIUM.

(a) SENSE OF CONGRESS.—It is the sense of Congress that the

allies of the United States and other nations should participate in

efforts to ensure that stockpiles of weapons-grade nuclear material

are reduced.

(b) ACTIONS BY THE SECRETARY OF STATE.—Congress urges the

Secretary of State to encourage, in consultation with the Secretary

of Energy, other countries to purchase low-enriched uranium that

is derived from highly enriched uranium extracted from Russian

nuclear weapons.
Sec. 1455 HOMELAND SECURITY 572

SEC. 1455. ø50 U.S.C. 2365¿ SENSE OF CONGRESS CONCERNING PURCHASE, PACKAGING, AND TRANSPORTATION OF FISSILE

MATERIALS AT RISK OF THEFT.

It is the sense of Congress that—

(1) the Secretary of Defense, the Secretary of Energy, the

Secretary of the Treasury, and the Secretary of State should

purchase, package, and transport to secure locations weaponsgrade nuclear materials from a stockpile of such materials if

such officials determine that—

(A) there is a significant risk of theft of such materials; and

(B) there is no reasonable and economically feasible alternative for securing such materials; and

(2) if it is necessary to do so in order to secure the materials, the materials should be imported into the United States,

subject to the laws and regulations that are applicable to the

importation of such materials into the United States.

h. Combatting Proliferation of Weapons of Mass Destruction

Act of 1996

(Title VII of Public Law 104–293, approved Oct. 11, 1996)

TITLE VII—COMBATTING PROLIFERATION

SEC. 701. ø50 U.S.C. 2301 note¿ SHORT TITLE.

This title may be cited as the ‘‘Combatting Proliferation of

Weapons of Mass Destruction Act of 1996’’.

Subtitle A—Assessment of Organization and Structure of

Government for Combatting Proliferation

SEC. 711. ø50 U.S.C. 2351 note¿ ESTABLISHMENT OF COMMISSION.

(a) ESTABLISHMENT.—There is established a commission to be

known as the Commission to Assess the Organization of the Federal Government to Combat the Proliferation of Weapons of Mass

Destruction (in this subtitle referred to as the ‘‘Commission’’).

(b) MEMBERSHIP.—The Commission shall be composed of

twelve members, none of whom may, during the period of their

service on the Commission, be an officer or employee of any department, agency, or other establishment of the Executive Branch

(other than the Commission), and of whom—

(1) four shall be appointed by the President;

(2) three shall be appointed by the Majority Leader of the

Senate;

(3) one shall be appointed by the Minority Leader of the

Senate;

(4) three shall be appointed by the Speaker of the House

of Representatives; and

(5) one shall be appointed by the Minority Leader of the

House of Representatives.

(c) QUALIFICATIONS OF MEMBERS.—(1) To the maximum extent

practicable, the individuals appointed as members of the Commission shall be individuals who are nationally recognized for expertise regarding—

(A) the nonproliferation of weapons of mass destruction;
573 Sec. 712 HOMELAND SECURITY

1 In subsection (e), the double commas appear in the law as a result of an amendment made

by section 708 of title VII of the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 1999 (as contained in section 101(f) of division

A of Public Law 105–277, enacted October 21, 1998).

(B) the efficient and effective implementation of United

States nonproliferation policy; or

(C) the implementation, funding, or oversight of the national security policies of the United States.

(2) An official who appoints members of the Commission may

not appoint an individual as a member if, in the judgment of the

official, the individual possesses any personal or financial interest

in the discharge of any of the duties of the Commission.

(d) PERIOD OF APPOINTMENT; VACANCIES.—Members shall be

appointed for the life of the Commission. Any vacancy in the Commission shall not affect its powers, but shall be filled in the same

manner as the original appointment.

(e) INITIAL MEETING.—Not later than 30 days after the date of

enactment of an Act making appropriations for the Departments of

Labor, Health and Human Services, and Education, and related

agencies, for the fiscal year ending September 30, 1999, regardless

of whether all the members of the Commission have been appointed as of that date,, 1 the Commission shall hold its first meeting.

(f) QUORUM.—A majority of the members of the Commission

shall constitute a quorum, but a lesser number of members may

hold hearings.

(g) CHAIRMAN AND VICE CHAIRMAN.—The Commission shall select a Chairman and Vice Chairman from among its members.

(h) MEETINGS.—The Commission shall meet at the call of the

Chairman.

SEC. 712. ø50 U.S.C. 2351 note¿ DUTIES OF COMMISSION.

(a) STUDY.—

(1) IN GENERAL.—The Commission shall carry out a

thorough study of the organization of the Federal Government,

including the elements of the intelligence community, with respect to combatting the proliferation of weapons of mass destruction.

(2) SPECIFIC REQUIREMENTS.—In carrying out the study,

the Commission shall—

(A) assess the current structure and organization of

the departments and agencies of the Federal Government

having responsibilities for combatting the proliferation of

weapons of mass destruction; and

(B) assess the effectiveness of United States

cooperation with foreign governments with respect to nonproliferation activities, including cooperation—

(i) between elements of the intelligence community and elements of the intelligence-gathering services of foreign governments;

(ii) between other departments and agencies of the

Federal Government and the counterparts to such departments and agencies in foreign governments; and

(iii) between the Federal Government and international organizations.
Sec. 712 HOMELAND SECURITY 574

(3) ASSESSMENTS.—In making the assessments under paragraph (2), the Commission should address—

(A) the organization of the export control activities (including licensing and enforcement activities) of the Federal

Government relating to the proliferation of weapons of

mass destruction;

(B) arrangements for coordinating the funding of

United States nonproliferation activities;

(C) existing arrangements governing the flow of information among departments and agencies of the

Federal Government responsible for nonproliferation activities;

(D) the effectiveness of the organization and function

of interagency groups in ensuring implementation of

United States treaty obligations, laws, and policies with

respect to nonproliferation;

(E) the administration of sanctions for purposes of

nonproliferation, including the measures taken by departments and agencies of the Federal Government to

implement, assess, and enhance the effectiveness of such

sanctions;

(F) the organization, management, and oversight of

United States counterproliferation activities;

(G) the recruitment, training, morale, expertise, retention, and advancement of Federal Government personnel

responsible for the nonproliferation functions of the Federal Government, including any problems in such activities;

(H) the role in United States nonproliferation activities of the National Security Council, the Office of Management and Budget, the Office of Science and Technology

Policy, and other offices in the Executive Office of the

President having responsibilities for such activities;

(I) the organization of the activities of the Federal

Government to verify government-to-government assurances and commitments with respect to nonproliferation,

including assurances regarding the future use of commodities exported from the United States; and

(J) the costs and benefits to the United States of increased centralization and of decreased centralization in

the administration of the nonproliferation activities of the

Federal Government.

(4) RESTRICTIONS.—In carrying out the study under paragraph (1), making the assessments under paragraph (2), and

addressing the matters identified in paragraph (3), the Commission shall not review, evaluate, or report on—

(A) United States domestic response capabilities with

respect to weapons of mass destruction; or

(B) the adequacy or usefulness of United States laws

that provide for the imposition of sanctions on countries or

entities that engage in the proliferation of weapons of

mass destruction.

(b) RECOMMENDATIONS.—In conducting the study, the Commission shall develop recommendations on means of improving the effectiveness of the organization of the departments and agencies of
575 Sec. 714 HOMELAND SECURITY

the Federal Government in meeting the national security interests

of the United States with respect to the proliferation of weapons

of mass destruction. Such recommendations shall include specific

recommendations to eliminate duplications of effort, and other inefficiencies, in and among such departments and

agencies.

(c) REPORT.—(1) Not later than 18 months after January 18,

1998, the Commission shall submit to Congress a report containing

a detailed statement of the findings and conclusions of the Commission, together with its recommendations for such legislation and

administrative actions as it considers appropriate.

(2) The report shall be submitted in unclassified form, but may

include a classified annex.

SEC. 713. ø50 U.S.C. 2351 note¿ POWERS OF COMMISSION.

(a) HEARINGS.—The Commission may hold such hearings, sit

and act at such times and places, take such testimony, and receive

such evidence as the Commission considers advisable to carry out

the purposes of this subtitle.

(b) INFORMATION FROM FEDERAL AGENCIES.—

(1) IN GENERAL.—The Commission may secure directly

from any Federal department or agency such information as

the Commission considers necessary to carry out the provisions

of this subtitle. Upon request of the Chairman of the Commission, the head of such department or agency shall furnish such

information to the Commission.

(2) CLASSIFIED INFORMATION.—A department or agency

may furnish the Commission classified information under this

subsection. The Commission shall take appropriate actions to

safeguard classified information furnished to the Commission

under this paragraph.

(c) POSTAL SERVICES.—The Commission may use the United

States mails in the same manner and under the same conditions

as other departments and agencies of the Federal Government.

(d) GIFTS.—The Commission may accept, use, and dispose of

gifts or donations of services or property.

SEC. 714. ø50 U.S.C. 2351 note¿ COMMISSION PERSONNEL MATTERS.

(a) COMPENSATION OF MEMBERS.—Each member of the Commission who is not an officer or employee of the Federal Government shall be compensated at a rate equal to the daily equivalent

of the annual rate of basic pay prescribed for level IV of the Executive Schedule under section 5315 of title 5, United States Code, for

each day (including travel time) during which such member is engaged in the performance of the duties of the Commission. All

members of the Commission who are officers or employees of the

United States shall serve without compensation in addition to that

received for their services as officers or employees of the United

States.

(b) TRAVEL EXPENSES.—The members of the Commission shall

be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away

from their homes or regular places of business in the performance

of services for the Commission.

(c) STAFF.—
Sec. 715 HOMELAND SECURITY 576

(1) IN GENERAL.—The Chairman of the Commission may,

without regard to the civil service laws and regulations, appoint and terminate an executive director and such other additional personnel as may be necessary to enable the Commission to perform its duties. The employment of an executive director shall be subject to confirmation by the Commission.

(2) COMPENSATION.—The Chairman of the Commission

may fix the compensation of the executive director and other

personnel without regard to the provisions of chapter 51 and

subchapter III of chapter 53 of title 5, United States Code, relating to classification of positions and General Schedule pay

rates, except that the rate of pay for the executive director and

other personnel may not exceed the rate payable for level V of

the Executive Schedule under section 5316 of such title.

(d) DETAIL OF GOVERNMENT EMPLOYEES.—Any Federal Government employee may be detailed to the Commission without reimbursement, and such detail shall be without interruption or loss

of civil service status or privilege.

(e) PROCUREMENT OF TEMPORARY AND INTERMITTENT

SERVICES.—The Chairman of the Commission may procure temporary and intermittent services under section 3109(b) of title 5,

United States Code, at rates for individuals which do not exceed

the daily equivalent of the annual rate of basic pay prescribed for

level V of the Executive Schedule under section 5316 of such title.

SEC. 715. ø50 U.S.C. 2351 note¿ TERMINATION OF COMMISSION.

The Commission shall terminate 60 days after the date on

which the Commission submits its report under section 712(c).

SEC. 716. ø50 U.S.C. 2351 note¿ DEFINITION.

For purposes of this subtitle, the term ‘‘intelligence community’’ shall have the meaning given such term in section 3(4) of the

National Security Act of 1947 (50 U.S.C. 401a(4)).

SEC. 717. ø50 U.S.C. 2351 note¿ PAYMENT OF COMMISSION EXPENSES.

The compensation, travel expenses, per diem allowances of

members and employees of the Commission, and other expenses of

the Commission shall not exceed $1,000,000, and shall be paid out

of funds available to the Director of Central Intelligence for the

payment of compensation, travel allowances, and per diem allowances, respectively, of employees of the Central Intelligence

Agency.

Subtitle B—Other Matters

SEC. 721. ø50 U.S.C. 2366¿ REPORTS ON ACQUISITION OF TECHNOLOGY

RELATING TO WEAPONS OF MASS DESTRUCTION AND ADVANCED CONVENTIONAL MUNITIONS.

(a) REPORTS.—The Director of Central Intelligence shall submit

to Congress a report on—

(1) the acquisition by foreign countries during the preceding 6 months of dual-use and other technology useful for

the development or production of weapons of mass destruction

(including nuclear weapons, chemical weapons, and biological

weapons) and advanced conventional munitions; and

(2) trends in the acquisition of such technology by such

countries.
577 Sec. 717 HOMELAND SECURITY

(b) SUBMITTAL DATES.—(1) The report required by subsection

(a) shall be submitted each year to the congressional intelligence

committees and the congressional leadership on an annual basis on

the dates provided in section 507 of the National Security Act of

1947.

(2) In this subsection:

(A) The term ‘‘congressional intelligence committees’’ has

the meaning given that term in section 3 of the National Security Act of 1947 (50 U.S.C. 401a).

(B) The term ‘‘congressional leadership’’ means the Speaker and the minority leader of the House of Representatives and

the majority leader and the minority leader of the Senate.

(c) FORM OF REPORTS.—Each report submitted under subsection (a) shall be submitted in unclassified form, but may include

a classified annex.

SEC. 722. ø50 U.S.C. 2369¿ SEMIANNUAL REPORT ON CONTRIBUTIONS

OF FOREIGN PERSONS TO WEAPONS OF MASS DESTRUCTION AND DELIVERY SYSTEMS EFFORTS OF COUNTRIES

OF PROLIFERATION CONCERN.

(a) REPORTS.—The Director of Central Intelligence shall submit

to Congress a semiannual report identifying each foreign person

that, during the period covered by the report, made a material contribution to the research, development, production, or acquisition

by a country of proliferation concern of—

(1) weapons of mass destruction (including nuclear weapons, chemical weapons, or biological weapons); or

(2) ballistic or cruise missile systems.

(b) PERIOD OF SEMIANNUAL REPORTS.—Semiannual reports

under subsection (a) shall be submitted as follows:

(1) One semiannual report shall cover the first six months

of the calendar year and shall be submitted not later than January 1 of the following year.

(2) The other semiannual report shall cover the second six

months of the calendar year and shall be submitted not later

than July 1 of the following year.

(c) FORM OF REPORTS.—(1) A report under subsection (a) may

be submitted in classified form, in whole or in part, if the Director

of Central Intelligence determines that submittal in that form is

advisable.

(2) Any portion of a report under subsection (a) that is submitted in classified form shall be accompanied by an unclassified

summary of such portion.

(d) DEFINITIONS.—In this section:

(1) The term ‘‘foreign person’’ means any of the following:

(A) A natural person who is not a citizen of the United

States.

(B) A corporation, business association, partnership,

society, trust, or other nongovernmental entity, organization, or group that is organized under the laws of a foreign

country or has its principal place of business in a foreign

country.

(C) Any foreign government or foreign governmental

entity operating as a business enterprise or in any other

capacity.
Sec. 717 HOMELAND SECURITY 578

(D) Any successor, subunit, or subsidiary of any entity

described in subparagraph (B) or (C).

(2) The term ‘‘country of proliferation concern’’ means any

country identified by the Director of Central Intelligence as

having engaged in the acquisition of dual-use and other technology useful for the development or production of weapons of

mass destruction (including nuclear weapons, chemical weapons, and biological weapons) or advanced conventional

munitions—

(A) in the most recent report under section 721; or

(B) in any successor report on the acquisition by foreign countries of dual-use and other technology useful for

the development or production of weapons of mass destruction.
579

6. NATIONAL DEFENSE STOCKPILE AND NAVAL

PETROLEUM RESERVE

a. Strategic and Critical Materials Stock Piling Act

SHORT TITLE

SECTION 1. ø50 U.S.C. 98¿ This Act may be cited as the ‘‘Strategic and Critical Materials Stock Piling Act’’.

FINDINGS AND PURPOSE

SEC. 2. ø50 U.S.C. 98a¿ (a) The Congress finds that the natural resources of the United States in certain strategic and critical

materials are deficient or insufficiently developed to supply the

military, industrial, and essential civilian needs of the United

States for national defense.

(b) It is the purpose of this Act to provide for the acquisition

and retention of stocks of certain strategic and critical materials

and to encourage the conservation and development of sources of

such materials within the United States and thereby to decrease

and to preclude, when possible, a dangerous and costly dependence

by the United States upon foreign sources for supplies of such materials in times of national emergency.

(c) The purpose of the National Defense Stockpile is to serve

the interest of national defense only. The National Defense Stockpile is not to be used for economic or budgetary purposes.

MATERIALS TO BE ACQUIRED: PRESIDENTIAL AUTHORITY AND

GUIDELINES

SEC. 3. ø50 U.S.C. 98b¿ (a) Subject to subsection (c), the President shall determine from time to time (1) which materials are

strategic and critical materials for the purposes of this Act, and (2)

the quality and quantity of each such material to be acquired for

the purposes of this Act and the form in which each such material

shall be acquired and stored. Such materials when acquired, together with the other materials described in section 4 of this Act,

shall constitute and be collectively known as the National Defense

Stockpile (hereinafter in this Act referred to as the ‘‘stockpile’’).

(b) The President shall make the determinations required to be

made under subsection (a) on the basis of the principles stated in

section 2(c).

(c)(1) The quantity of any material to be stockpiled under this

Act, as in effect on September 30, 1987, may be changed only as

provided in this subsection or as otherwise provided by law enacted

after December 4, 1987.

(2) The President shall notify Congress in writing of any

change proposed to be made in the quantity of any material to be
Sec. 4 NATIONAL DEFENSE STOCKPILE 580

stockpiled. The President may make the change after the end of

the 45-day period beginning on the date of the notification. The

President shall include a full explanation and justification for the

proposed change with the notification.

MATERIALS CONSTITUTING THE NATIONAL DEFENSE STOCKPILE

SEC. 4. ø50 U.S.C. 98c¿ (a) The stockpile consists of the following materials:

(1) Materials acquired under this Act and contained in the

national stockpile on July 29, 1979.

(2) Materials acquired under this Act after July 29, 1979.

(3) Materials in the supplemental stockpile established by

section 104(b) of the Agricultural Trade Development and Assistance Act of 1954 (as in efffect from September 21, 1959,

through December 31, 1966) on July 29, 1979.

(4) Materials acquired by the United States under the provisions of section 303 of the Defense Production Act of 1950 (50

U.S.C. App. 2093) and transferred to the stockpile by the President pursuant to subsection (f) of such section.

(5) Materials transferred to the United States under section 663 of the Foreign Assistance Act of 1961 (22 U.S.C. 2423)

that have been determined to be strategic and critical materials for the purposes of this Act and that are allocated by the

President under subsection (b) of such section for stockpiling in

the stockpile.

(6) Materials acquired by the Commodity Credit Corporation and transferred to the stockpile under section 4(h) of the

Commodity Credit Corporation Charter Act (15 U.S.C.

714b(h)).

(7) Materials acquired by the Commodity Credit Corporation under paragraph (2) of section 103(a) of the Act entitled

‘‘An Act to provide for greater stability in agriculture; to augment the marketing and disposal of agricultural products; and

for other purposes’’, approved August 28, 1954 (7 U.S.C.

1743(a)), and transferred to the stockpile under the third sentence of such section.

(8) Materials transferred to the stockpile by the President

under paragraph (4) of section 103(a) of such Act of August 28,

1954.

(9) Materials transferred to the stockpile under subsection

(b).

(10) Materials transferred to the stockpile under subsection (c).

(b) Notwithstanding any other provision of law, any material

that (1) is under the control of any department or agency of the

United States, (2) is determined by the head of such department

or agency to be excess to its needs and responsibilities, and (3) is

required for the stockpile shall be transferred to the stockpile. Any

such transfer shall be made without reimbursement to such department or agency, but all costs required to effect such transfer shall

be paid or reimbursed from funds appropriated to carry out this

Act.

(c)(1) The Secretary of Energy, in consultation with the Secretary of Defense, shall transfer to the stockpile for disposal in ac-
581 Sec. 6 NATIONAL DEFENSE STOCKPILE

cordance with this Act uncontaminated materials that are in the

Department of Energy inventory of materials for the production of

defense-related items, are excess to the requirements of the Department for that purpose, and are suitable for transfer to the

stockpile and disposal through the stockpile.

(2) The Secretary of Defense shall determine whether materials are suitable for transfer to the stockpile under this subsection,

are suitable for disposal through the stockpile, and are

uncontaminated.

AUTHORITY FOR STOCKPILE OPERATIONS

SEC. 5. ø50 U.S.C. 98d¿ (a)(1) Except for acquisitions made

under the authority of paragraph (3) or (4) of section 6(a), no funds

may be obligated or appropriated for acquisition of any material

under this Act unless funds for such acquisition have been authorized by law. Funds appropriated for such acquisition (and for transportation and other incidental expenses related to such acquisition)

shall remain available until expended, unless otherwise provided in

appropriation Acts.

(2) If for any fiscal year the President proposes certain stockpile transactions in the annual materials plan submitted to Congress for that year under section 11(b) and after that plan is submitted the President proposes (or Congress requires) a significant

change in any such transaction, or a significant transaction not included in such plan, no amount may be obligated or expended for

such transaction during such year until the President has submitted a full statement of the proposed transaction to the appropriate committees of Congress and a period of 45 days has passed

from the date of the receipt of such statement by such committees.

(b) Except for disposals made under the authority of paragraph

(3), (4), or (5) of section 6(a) or under section 7(a), no disposal may

be made from the stockpile unless such disposal, including the

quantity of the material to be disposed of, has been specifically authorized by law.

(c) There is authorized to be appropriated such sums as may

be necessary to provide for the transportation, processing, refining,

storage, security, maintenance, rotation, and disposal of materials

contained in or acquired for the stockpile. Funds appropriated for

such purposes shall remain available to carry out the purposes for

which appropriated for a period of two fiscal years, if so provided

in appropriation Acts.

STOCKPILE MANAGEMENT

SEC. 6. ø50 U.S.C. 98e¿ (a) The President shall—

(1) acquire the materials determined under section 3(a) to

be strategic and critical materials;

(2) provide for the proper storage, security, and maintenance of materials in the stockpile;

(3) provide for the upgrading, refining, or processing of any

material in the stockpile (notwithstanding any intermediate

stockpile quantity established for such material) when necessary to convert such material into a form more suitable for
Sec. 6 NATIONAL DEFENSE STOCKPILE 582

storage, subsequent disposition, and immediate use in a national emergency;

(4) provide for the rotation of any material in the stockpile

when necessary to prevent deterioration or technological obsolescence of such material by replacement of such material with

an equivalent quantity of substantially the same material or

better material;

(5) subject to the notification required by subsection (d)(2),

provide for the timely disposal of materials in the stockpile

that (A) are excess to stockpile requirements, and (B) may

cause a loss to the Government if allowed to deteriorate; and

(6) subject to the provisions of section 5(b), dispose of materials in the stockpile the disposal of which is specifically authorized by law.

(b) Except as provided in subsections (c) and (d), acquisition of

strategic and critical materials under this Act shall be made in accordance with established Federal procurement practices, and, except as provided in subsections (c) and (d) and in section 7(a), disposal of strategic and critical materials from the stockpile shall be

made in accordance with the next sentence. To the maximum extent feasible—

(1) competitive procedures shall be used in the acquisition

and disposal of such materials; and

(2) efforts shall be made in the acquisition and disposal of

such materials to avoid undue disruption of the usual markets

of producers, processors, and consumers of such materials and

to protect the United States against avoidable loss.

(c)(1) The President shall encourage the use of barter in the acquisition under subsection (a)(1) of strategic and critical materials

for, and the disposal under subsection (a)(5) or (a)(6) of materials

from, the stockpile when acquisition or disposal by barter is authorized by law and is practical and in the best interest of the

United States.

(2) Materials in the stockpile (the disposition of which is authorized by paragraph (3) to finance the upgrading, refining, or

processing of a material in the stockpile, or is otherwise authorized

by law) shall be available for transfer at fair market value as payment for expenses (including transportation and other incidential

expenses) of acquisition of materials, or of upgrading, refining,

processing, or rotating materials, under this Act.

(3) Notwithstanding section 3(c) or any other provision of law,

whenever the President provides under subsection (a)(3) for the upgrading, refining, or processing of a material in the stockpile to

convert that material into a form more suitable for storage, subsequent disposition, and immediate use in a national emergency, the

President may barter a portion of the same material (or any other

material in the stockpile that is authorized for disposal) to finance

that upgrading, refining, or processing.

(4) To the extent otherwise authorized by law, property owned

by the United States may be bartered for materials needed for the

stockpile.

(d)(1) The President may waive the applicability of any provision of the first sentence of subsection (b) to any acquisition of material for, or disposal of material from, the stockpile. Whenever the
583 Sec. 8 NATIONAL DEFENSE STOCKPILE

President waives any such provision with respect to any such acquisition or disposal, or whenever the President determines that

the application of paragraph (1) or (2) of such subsection to a particular acquisition or disposal is not feasible, the President shall

notify the Committee on Armed Services of the Senate and the

Committee on Armed Services of the House of Representatives in

writing of the proposed acquisition or disposal at least 45 days before any obligation of the United States is incurred in connection

with such acquisition or disposal and shall include in such notification the reasons for not complying with any provision of such subsection.

(2) Materials in the stockpile may be disposed of under subsection (a)(5) only if such congressional committees are notified in

writing of the proposed disposal at least 45 days before any obligation of the United States is incurred in connection with such disposal.

(e) The President may acquire leasehold interests in property,

for periods not in excess of twenty years, for storage, security, and

maintenance of materials in the stockpile.

SPECIAL DISPOSAL AUTHORITY OF THE PRESIDENT

SEC. 7. ø50 U.S.C. 98f ¿ (a) Materials in the stockpile may be

released for use, sale, or other disposition—

(1) on the order of the President, at any time the President

determines the release of such materials is required for purposes of the national defense; and

(2) in time of war declared by the Congress or during a national emergency, on the order of any officer or employee of the

United States designated by the President to have authority to

issue disposal orders under this subsection, if such officer or

employee determines that the release of such materials is required for purposes of the national defense.

(b) Any order issued under subsection (a) shall be promptly reported by the President, or by the officer or employee issuing such

order, in writing, to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives.

MATERIALS DEVELOPMENT AND RESEARCH

SEC. 8. ø50 U.S.C. 98g¿ (a)(1) The President shall make scientific, technologic, and economic investigations concerning the development, mining, preparation, treatment, and utilization of ores

and other mineral substances that (A) are found in the United

States, or in its territories or possessions, (B) are essential to the

national defense, industrial, and essential civilian needs of the

United States, and (C) are found in known domestic sources in inadequate quantities or grades.

(2) Such investigations shall be carried out in order to—

(A) determine and develop new domestic sources of supply

of such ores and mineral substances;

(B) devise new methods for the treatment and utilization

of lower grade reserves of such ores and mineral substances;

and
Sec. 9 NATIONAL DEFENSE STOCKPILE 584

(C) develop substitutes for such essential ores and mineral

products.

(3) Investigations under paragraph (1) may be carried out on

public lands and, with the consent of the owner, on privately owned

lands for the purpose of exploring and determining the extent and

quality of deposits of such minerals, the most suitable methods of

mining and beneficiating such minerals, and the cost at which the

minerals or metals may be produced.

(b) The President shall make scientific, technologic, and economic investigations of the feasibility of developing domestic

sources of supplies of any agricultural material or for using agricultural commodities for the manufacture of any material determined

pursuant to section 3(a) of this Act to be a strategic and critical

material or substitutes therefor.

(c) The President shall make scientific, technologic, and economic investigations concerning the feasibility of—

(1) developing domestic sources of supply of materials

(other than materials referred to in subsections (a) and (b)) determined pursuant to section 3(a) to be strategic and critical

materials; and

(2) developing or using alternative methods for the refining

or processing of a material in the stockpile so as to convert

such material into a form more suitable for use during an

emergency or for storage.

(d) The President shall encourage the conservation of domestic

sources of any material determined pursuant to section 3(a) to be

a strategic and critical material by making grants or awarding contracts for research regarding the development of—

(1) substitutes for such material; or

(2) more efficient methods of production or use of such material.

NATIONAL DEFENSE STOCKPILE TRANSACTION FUND

SEC. 9. ø50 U.S.C. 98h¿ (a) There is established in the Treasury of the United States a separate fund to be known as the National Defense Stockpile Transaction Fund (hereinafter in this section referred to as the ‘‘fund’’).

(b)(1) All moneys received from the sale of materials in the

stockpile under paragraphs (5) and (6) of section 6(a) shall be covered into the fund.

(2) Subject to section 5(a)(1), moneys covered into the fund

under paragraph (1) are hereby made available (subject to such

limitations as may be provided in appropriation Acts) for the following purposes:

(A) The acquisition, maintenance, and disposal of strategic

and critical materials under section 6(a).

(B) Transportation, storage, and other incidental expenses

related to such acquisition, maintenance, and disposal.

(C) Development of current specifications of stockpile materials and the upgrading of existing stockpile materials to

meet current specifications (including transportation, when economical, related to such upgrading).

(D) Testing and quality studies of stockpile materials.
585 Sec. 10 NATIONAL DEFENSE STOCKPILE

(E) Studying future material and mobilization requirements for the stockpile.

(F) Activities authorized under section 15.

(G) Contracting under competitive procedures for materials

development and research to—

(i) improve the quality and availability of materials

stockpiled from time to time in the stockpile; and

(ii) develop new materials for the stockpile.

(H) Improvement or rehabilitation of facilities, structures,

and infrastructure needed to maintain the integrity of stockpile

materials.

(I) Disposal of hazardous materials that are stored in the

stockpile and authorized for disposal by law.

(J) Performance of environmental remediation, restoration,

waste management, or compliance activities at locations of the

stockpile that are required under a Federal law or are undertaken by the Government under an administrative decision or

negotiated agreement.

(K) Pay of employees of the National Defense Stockpile

program.

(L) Other expenses of the National Defense Stockpile program.

(3) Moneys in the fund shall remain available until expended.

(c) All moneys received from the sale of materials being rotated

under the provisions of section 6(a)(4) or disposed of under section

7(a) shall be covered into the fund and shall be available only for

the acquisition of replacement materials.

(d) If, during a fiscal year, the National Defense Stockpile

Manager barters materials in the stockpile for the purpose of acquiring, upgrading, refining, or processing other materials (or for

services directly related to that purpose), the contract value of the

materials so bartered shall—

(1) be applied toward the total value of materials that are

authorized to be disposed of from the stockpile during that fiscal year;

(2) be treated as an acquisition for purposes of satisfying

any requirement imposed on the National Defense Stockpile

Manager to enter into obligations during that fiscal year under

subsection (b)(2); and

(3) not increase or decrease the balance in the fund.

ADVISORY COMMITTEES

SEC. 10. ø50 U.S.C. 98h–1¿ (a) The President may appoint advisory committees composed of individuals with expertise relating

to materials in the stockpile or with expertise in stockpile management to advise the President with respect to the acquisition, transportation, processing, refining, storage, security, maintenance, rotation, and disposal of such materials under this Act.

(b) Each member of an advisory committee established under

subsection (a) while serving on the business of the advisory committee away from such member’s home or regular place of business

shall be allowed travel expenses, including per diem in lieu of substance, as authorized by section 5703 of title 5, United States Code,

for persons intermittently employed in the Government service.
Sec. 11 NATIONAL DEFENSE STOCKPILE 586

(c)(1) The President shall appoint a Market Impact Committee

composed of representatives from the Department of Agriculture,

the Department of Commerce, the Department of Defense, the Department of Energy, the Department of the Interior, the Department of State, the Department of the Treasury, and the Federal

Emergency Management Agency, and such other persons as the

President considers appropriate. The representatives from the Department of Commerce and the Department of State shall be Cochairmen of the Committee.

(2) The Committee shall advise the National Defense Stockpile

Manager on the projected domestic and foreign economic effects of

all acquisitions and disposals of materials from the stockpile that

are proposed to be included in the annual materials plan submitted

to Congress under section 11(b), or in any revision of such plan,

and shall submit to the manager the Committee’s recommendations

regarding those acquisitions and disposals.

(3) The annual materials plan or the revision of such plan, as

the case may be, shall contain—

(A) the views of the Committee on the projected domestic

and foreign economic effects of all acquisitions and disposals of

materials from the stockpile;

(B) the recommendations submitted by the Committee

under paragraph (2); and

(C) for each acquisition or disposal provided for in the plan

or revision that is inconsistent with a recommendation of the

Committee, a justification for the acquisition or disposal.

(4) In developing recommendations for the National Defense

Stockpile Manager under paragraph (2), the Committee shall consult from time to time with representatives of producers, processors, and consumers of the types of materials stored in the stockpile.

REPORTS TO CONGRESS

SEC. 11. ø50 U.S.C. 98h–2¿ (a) Not later than January 15 of

each year, the President shall submit to the Congress an annual

written report detailing operations under this Act. Each such report shall include—

(1) information with respect to foreign and domestic purchases of materials during the preceding fiscal year;

(2) information with respect to the acquisition and disposal

of materials under this Act by barter, as provided for in section

6(c) of this Act, during such fiscal year;

(3) information with respect to the activities by the Stockpile Manager to encourage the conservation, substitution, and

development of strategic materials within the United States;

(4) information with respect to the research and development activities conducted under sections 2 and 8;

(5) a statement and explanation of the financial status of

the National Defense Stockpile Transaction Fund and the anticipated appropriations to be made to the fund, and obligations to be made from the fund, during the current fiscal year;

and

(6) such other pertinent information on the administration

of this Act as will enable the Congress to evaluate the effec-
587 Sec. 13 NATIONAL DEFENSE STOCKPILE

tiveness of the program provided for under this Act and to determine the need for additional legislation.

(b)(1) Not later than February 15 of each year, the President

shall submit to the appropriate committees of the Congress a report containing an annual materials plan for the operation of the

stockpile during the next fiscal year and the succeeding four fiscal

years.

(2) Each such report shall include details of all planned expenditures from the National Defense Stockpile Transaction Fund

during such period (including expenditures to be made from appropriations from the general fund of the Treasury) and of anticipated

receipts from proposed disposal of stockpile materials during such

period. Each such report shall also contain details regarding the

materials development and research projects to be conducted under

section 9(b)(2)(G) during the fiscal years covered by the report.

With respect to each development and research project, the report

shall specify the amount planned to be expended from the fund, the

material intended to be developed, the potential military or defense

industrial applications for that material, and the development and

research methodologies to be used.

(3) Any proposed expenditure or disposal detailed in the annual materials plan for any such fiscal year, and any expenditure

or disposal proposed in connection with any transaction submitted

for such fiscal year to the appropriate committees of Congress pursuant to section 5(a)(2), that is not obligated or executed in that fiscal year may not be obligated or executed until such proposed expenditure or disposal is resubmitted in a subsequent annual materials plan or is resubmitted to the appropriate committees of Congress in accordance with section 5(a)(2), as appropriate.

DEFINITIONS

SEC. 12. ø50 U.S.C. 98h–3¿ For the purposes of this Act:

(1) The term ‘‘strategic and critical materials’’ means materials that (A) would be needed to supply the military, industrial, and essential civilian needs of the United States during

a national emergency, and (B) are not found or produced in the

United States in sufficient quantities to meet such need.

(2) The term ‘‘national emergency’’ means a general declaration of emergency with respect to the national defense

made by the President or by the Congress.

IMPORTATION OF STRATEGIC AND CRITICAL MATERIALS

SEC. 13. ø50 U.S.C. 98h–4¿ The President may not prohibit or

regulate the importation into the United States of any material determined to be strategic and critical pursuant to the provisions of

this Act, if such material is the product of any foreign country or

area not listed in general note 3(b) of the Harmonized Tariff Schedule of the United States (19 U.S.C. 1202), for so long as the importation into the United States of material of that kind which is the

product of a country or area listed in such general note is not prohibited by any provision of law.
Sec. 14 NATIONAL DEFENSE STOCKPILE 588

BIENNIAL REPORT ON STOCKPILE REQUIREMENTS

SEC. 14. ø50 U.S.C. 98h–5¿ (a) Not later than January 15 of

every other year, the Secretary of Defense shall submit to Congress

a report on stockpile requirements. Each such report shall

include—

(1) the Secretary’s recommendations with respect to stockpile requirements; and

(2) the matters required under subsection (b).

(b) Each report under this section shall set forth the national

emergency planning assumptions used by the Secretary in making

the Secretary’s recommendations under subsection (a)(1) with respect to stockpile requirements. The Secretary shall base the national emergency planning assumptions on a military conflict scenario consistent with the scenario used by the Secretary in budgeting and defense planning purposes. The assumptions to be set

forth include assumptions relating to each of the following:

(1) The length and intensity of the assumed military

conflict.

(2) The military force structure to be mobilized.

(3) The losses anticipated from enemy action.

(4) The military, industrial, and essential civilian requirements to support the national emergency.

(5) The availability of supplies of strategic and critical materials from foreign sources during the mobilization period, the

military conflict, and the subsequent period of replenishment,

taking into consideration possible shipping losses.

(6) The domestic production of strategic and critical materials during the mobilization period, the military conflict, and

the subsequent period of replenishment, taking into consideration possible shipping losses.

(7) Civilian austerity measures required during the mobilization period and military conflict.

(c) The stockpile requirements shall be based on those strategic

and critical materials necessary for the United States to replenish

or replace, within three years of the end of the military conflict scenario required under subsection (b), all munitions, combat support

items, and weapons systems that would be required after such a

military conflict.

(d) The Secretary shall also include in each report under this

section an examination of the effect that alternative mobilization

periods under the military conflict scenario required under subsection (b), as well as a range of other military conflict scenarios

addressing potentially more serious threats to national security,

would have on the Secretary’s recommendations under subsection

(a)(1) with respect to stockpile requirements.

(e) The President shall submit with each report under this section a statement of the plans of the President for meeting the recommendations of the Secretary set forth in the report.

DEVELOPMENT OF DOMESTIC SOURCES

SEC. 15. ø50 U.S.C. 98h–6¿ (a) Subject to subsection (c) and to

the extent the President determines such action is required for the

national defense, the President shall encourage the development of
589 Sec. 16 NATIONAL DEFENSE STOCKPILE

domestic sources for materials determined pursuant to section 3(a)

to be strategic and critical materials—

(1) by purchasing, or making a commitment to purchase,

strategic and critical materials of domestic origin when such

materials are needed for the stockpile; and

(2) by contracting with domestic facilities, or making a

commitment to contract with domestic facilities, for the processing or refining of strategic and critical materials in the

stockpile when processing or refining is necessary to convert

such materials into a form more suitable for storage and subsequent disposition.

(b) A contract or commitment made under subsection (a) may

not exceed five years from the date of the contract or commitment.

Such purchases and commitments to purchase may be made for

such quantities and on such terms and conditions, including advance payments, as the President considers to be necessary.

(c)(1) Descriptions of proposed transactions under subsection

(a) shall be included in the appropriate annual materials plan submitted to Congress under section 11(b). Changes to any such transaction, or the addition of a transaction not included in such plan,

shall be made in the manner provided by section 5(a)(2).

(2) The authority of the President to enter into obligations

under this section is effective for any fiscal year only to the extent

that funds in the National Defense Stockpile Transaction Fund are

adequate to meet such obligations. Payments required to be as a

result of obligations incurred under this section shall be made from

amounts in the fund.

(d) The authority of the President under subsection (a) includes

the authority to pay—

(1) the expenses of transporting materials; and

(2) other incidental expenses related to carrying out such

subsection.

(e) The President shall include in the reports required under

section 11(a) information with respect to activities conducted under

this section.

NATIONAL DEFENSE STOCKPILE MANAGER

SEC. 16. ø50 U.S.C. 98e–1¿ (a) The President shall designate

a single Federal office to have responsibility for performing the

functions of the President under this Act, other than under sections

7 and 13. The office designated shall be one to which appointment

is made by the President, by and with the advice and consent of

the Senate.

(b) The individual holding the office designated by the President under subsection (a) shall be known for purposes of functions

under this Act as the ‘‘National Defense Stockpile Manager’’.

(c) The President may delegate functions of the President

under this Act (other than under sections 7 and 13) only to the National Defense Stockpile Manager. Any such delegation made by

the President shall remain in effect until specifically revoked by

law or Executive order. The President may not delegate functions

of the President under sections 7 and 13.
590

b. Executive Order 12626—National Defense Stockpile

Manager

By the authority vested in me as President by the Constitution

and laws of the United States of America, including the Strategic

and Critical Materials Stock Piling Act (50 U.S.C. 98 et seq.), as

amended, section 3203 of the National Defense Authorization Act

for Fiscal Year 1988 (Public Law 100–180), and section 301 of Title

3 of the United States Code, it is hereby ordered as follows:

Section 1. The Secretary of Defense is designated National Defense Stockpile Manager. The functions vested in the President by

the Strategic and Critical Materials Stock Piling Act, except the

functions vested in the President by sections 7, 8, and 13 of the

Act, are delegated to the Secretary of Defense. The functions vested

in the President by section 8(a) of the Act are delegated to the Secretary of the Interior. The functions vested in the President by section 8(b) of the Act are delegated to the Secretary of Agriculture.

Sec. 2. The functions vested in the President by section 4(h) of

the Commodity Credit Corporation Charter Act, as amended (15

U.S.C. 714b(h)), are delegated to the Secretary of Defense.

Sec. 3. The functions vested in the President by section 204(f)

of the Federal Property and Administrative Services Act of 1949,

as amended (40 U.S.C. 485(f)), are delegated to the Secretary of Defense.

Sec. 4. In executing the functions delegated to him by this

Order, the Secretary of Defense may delegate such functions as he

may deem appropriate, subject to his direction. The Secretary shall

consult with the heads of affected agencies in performing the functions delegated to him by this Order.

RONALD REAGAN.

The WHITE HOUSE, February 25, 1988.
591

c. Annual Defense Authorization and Appropriations Acts

National Defense Authorization Act for Fiscal Year 2004

(Public Law 108–136, approved Nov. 24, 2003)

TITLE XXXIII—NATIONAL DEFENSE STOCKPILE

SEC. 3301. AUTHORIZED USES OF NATIONAL DEFENSE STOCKPILE

FUNDS.

(a) OBLIGATION OF STOCKPILE FUNDS.—During fiscal year

2004, the National Defense Stockpile Manager may obligate up to

$69,701,000 of the funds in the National Defense Stockpile Transaction Fund established under subsection (a) of section 9 of the

Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98h)

for the authorized uses of such funds under subsection (b)(2) of

such section, including the disposal of hazardous materials that are

environmentally sensitive.

(b) ADDITIONAL OBLIGATIONS.—The National Defense Stockpile

Manager may obligate amounts in excess of the amount specified

in subsection (a) if the National Defense Stockpile Manager notifies

Congress that extraordinary or emergency conditions necessitate

the additional obligations. The National Defense Stockpile Manager

may make the additional obligations described in the notification

after the end of the 45-day period beginning on the date on which

Congress receives the notification.

(c) LIMITATIONS.—The authorities provided by this section shall

be subject to such limitations as may be provided in appropriations

Acts.

National Defense Authorization Act for Fiscal Year 2002

(Public Law 107–107, approved Dec. 28, 2001)

TITLE XXXIII—NATIONAL DEFENSE STOCKPILE

SEC. 3301. ø50 U.S.C. 98d note¿ DEFINITIONS.

In this title:

(1) The term ‘‘National Defense Stockpile’’ means the

stockpile provided for in section 4 of the Strategic and Critical

Materials Stock Piling Act (50 U.S.C. 98c).

(2) The term ‘‘National Defense Stockpile Transaction

Fund’’ means the fund established under section 9(a) of the

Strategic and Critical Materials Stock Piling Act (50 U.S.C.

98h(a)).

(3) The term ‘‘Market Impact Committee’’ means the Market Impact Committee appointed under section 10(c) of the
FY02 NATIONAL DEFENSE STOCKPILE 592

Strategic and Critical Materials Stock Piling Act (50 U.S.C.

98h–1(c)).

* * * * * * *

SEC. 3303. ø50 U.S.C. 98d note¿ AUTHORITY TO DISPOSE OF CERTAIN

MATERIALS IN NATIONAL DEFENSE STOCKPILE.

(a) DISPOSAL AUTHORIZED.—Subject to the conditions specified

in subsection (b), the President may dispose of obsolete and excess

materials contained in the National Defense Stockpile. The materials subject to disposal under this subsection and the quantity of

each material authorized to be disposed of by the President are set

forth in the following table:

Authorized Stockpile Disposals

Material for disposal Quantity

Bauxite ................................................................................ 40,000 short tons

Chromium Metal ................................................................. 3,512 short tons

Iridium ................................................................................. 25,140 troy ounces

Jewel Bearings .................................................................... 30,273,221 pieces

Manganese Ferro HC ......................................................... 209,074 short tons

Palladium ............................................................................ 11 troy ounces

Quartz Crystal .................................................................... 216,648 pounds

Tantalum Metal Ingot ........................................................ 120,228 pounds contained

Tantalum Metal Powder .................................................... 36,020 pounds contained

Thorium Nitrate ................................................................. 600,000 pounds.

(b) MINIMIZATION OF DISRUPTION AND LOSS.—The President

may not dispose of materials under subsection (a) to the extent

that the disposal will result in—

(1) undue disruption of the usual markets of producers,

processors, and consumers of the materials proposed for disposal; or

(2) avoidable loss to the United States.

(c) RELATIONSHIP TO OTHER DISPOSAL AUTHORITY.—The disposal authority provided in subsection (a) is new disposal authority

and is in addition to, and shall not affect, any other disposal authority provided by law regarding the materials specified in such

subsection.

SEC. 3304. REVISION OF LIMITATIONS ON REQUIRED DISPOSALS OF

CERTAIN MATERIALS IN NATIONAL DEFENSE STOCKPILE.

[Omitted-Amendments]

SEC. 3305. ACCELERATION OF REQUIRED DISPOSAL OF COBALT IN NATIONAL DEFENSE STOCKPILE.

[Omitted-Amendments]

SEC. 3306. ø50 U.S.C. 98d note¿ RESTRICTION ON DISPOSAL OF MANGANESE FERRO.

(a) TEMPORARY QUANTITY RESTRICTIONS.—During fiscal years

2002 through 2005, the disposal of manganese ferro in the National

Defense Stockpile may not exceed the following quantities:

(1) During fiscal year 2002, 25,000 short tons of all grades

of manganese ferro.

(2) During fiscal year 2003, 25,000 short tons of high carbon manganese ferro of the highest grade.

(3) During each of the fiscal years 2004 and 2005, 50,000

short tons of high carbon manganese ferro of the highest grade.
593 FY00 NATIONAL DEFENSE STOCKPILE

(b) CONFORMING AMENDMENT.—Section 3304 of the National

Defense Authorization Act for Fiscal Year 1996 (Public Law 104–

106; 110 Stat. 629) is repealed.

Floyd D. Spence National Defense Authorization Act for

Fiscal Year 2001

(as enacted into law by section 1 of Public Law 106–398, approved Oct. 30, 2000)

TITLE XXXIII—NATIONAL DEFENSE STOCKPILE

* * * * * * *

SEC. 3303. ø50 U.S.C. 98d note¿ DISPOSAL OF TITANIUM.

(a) DISPOSAL REQUIRED.—Notwithstanding any other provision

of law, the President shall, by September 30, 2010, dispose of

30,000 short tons of titanium contained in the National Defense

Stockpile.

(b) TREATMENT OF RECEIPTS.—Notwithstanding section 9 of the

Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98h),

of the funds received as a result of the disposal of titanium under

subsection (a), $6,000,000 shall be transferred to the American Battle Monuments Commission for deposit in the fund established

under section 2113 of title 36, United States Code, for the World

War II memorial authorized by section 1 of Public Law 103–32 (107

Stat. 90), and the remainder shall be deposited into the Treasury

as miscellaneous receipts.

(c) WORLD WAR II MEMORIAL.—(1) The amount transferred to

the American Battle Monuments Commission under subsection (b)

shall be used to complete all necessary requirements for the design

of, ground breaking for, construction of, maintenance of, and dedication of the World War II memorial. The Commission shall determine how the amount shall be apportioned among such purposes.

(2) Any funds not necessary for the purposes set forth in paragraph (1) shall be transferred to and deposited in the general fund

of the Treasury.

(d) RELATIONSHIP TO OTHER DISPOSAL AUTHORITY.—The disposal authority provided in subsection (a) is new disposal authority

and is in addition to, and shall not affect, any other disposal authority provided by law regarding materials in the National Defense Stockpile.

National Defense Authorization Act for Fiscal Year 2000

(Public Law 106–65, approved Oct. 5, 1999)

TITLE XXXIV—NATIONAL DEFENSE STOCKPILE

* * * * * * *

SEC. 3402. ø50 U.S.C. 98d note¿ DISPOSAL OF CERTAIN MATERIALS IN

NATIONAL DEFENSE STOCKPILE.

(a) DISPOSAL REQUIRED.—Subject to subsection (c), the President shall make disposals from the National Defense Stockpile of

materials in quantities as follows:

(1) Beryllium metal, 250 short tons.

(2) Chromium ferro alloy, 496,204 short tons.
FY99 NATIONAL DEFENSE STOCKPILE 594

(3) Chromium metal, 5,000 short tons.

(4) Palladium, 497,271 troy ounces.

(b) MANAGEMENT OF DISPOSAL TO ACHIEVE OBJECTIVES FOR

RECEIPTS.—The President shall manage the disposal of materials

under subsection (a) so as to result in receipts to the United States

in amounts equal to— (1) $10,000,000 during fiscal year 2000;

(2) $100,000,000 during the 5-fiscal year period ending

September 30, 2004; (3) $340,000,000 before the end of fiscal year 2005; and

(4) $450,000,000 before the end of fiscal year 2013.

(c) MINIMIZATION OF DISRUPTION AND LOSS.—The President

may not dispose of the material under subsection (a) to the extent

that the disposal will result in—

(1) undue disruption of the usual markets of producers,

processors, and consumers of the materials proposed for disposal; or

(2) avoidable loss to the United States.

(d) DISPOSITION OF RECEIPTS.—Notwithstanding section 9 of

the Strategic and Critical Materials Stock Piling Act (50 U.S.C.

98h), funds received as a result of the disposal of materials under

subsection (a) shall be deposited into the general fund of the Treasury.

(e) RELATIONSHIP TO OTHER DISPOSAL AUTHORITY.—The disposal authority provided in subsection (a) is new disposal authority

and is in addition to, and shall not affect, any other disposal authority provided by law regarding the materials specified in such

subsection. The disposal of materials under this section to achieve

the receipt levels specified in subsection (b), within the time periods specified in subsection, shall be in addition to any routine and

on-going disposals used to fund operations of the National Defense

Stockpile.

(f) INCREASED RECEIPTS UNDER PRIOR DISPOSAL AUTHORITY.— [Omitted-Amendment]

(g) ELIMINATION OF DISPOSAL RESTRICTIONS ON EARLIER DIS- POSAL AUTHORITY.— [Omitted-Amendment]

Strom Thurmond National Defense Authorization Act for

Fiscal Year 1999

(Public Law 105–261, approved Oct. 17, 1998)

TITLE XXXIII—NATIONAL DEFENSE STOCKPILE

SEC. 3301. ø50 U.S.C. 98d note¿ DEFINITIONS.

In this title:

(1) The term ‘‘National Defense Stockpile’’ means the

stockpile provided for in section 4 of the Strategic and Critical

Materials Stock Piling Act (50 U.S.C. 98c).

(2) The term ‘‘National Defense Stockpile Transaction

Fund’’ means the fund in the Treasury of the United States established under section 9(a) of the Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98h(a)).

* * * * * * *
595 FY99 NATIONAL DEFENSE STOCKPILE

SEC. 3303. ø50 U.S.C. 98d note¿ AUTHORITY TO DISPOSE OF CERTAIN

MATERIALS IN NATIONAL DEFENSE STOCKPILE.

(a) DISPOSAL REQUIRED.—Subject to subsection (c), the President shall dispose of materials contained in the National Defense

Stockpile and specified in the table in subsection (b) so as to result

in receipts to the United States in total amounts not less than—

(1) $105,000,000 by the end of fiscal year 1999;

(2) $460,000,000 by the end of fiscal year 2002;

(3) $555,000,000 by the end of fiscal year 2003;

(4) $760,000,000 by the end of fiscal year 2005; and

(5) $770,000,000 by the end of fiscal year 2011.

(b) LIMITATIONS ON DISPOSAL AUTHORITY.—(1) The total quantities of materials authorized for disposal by the President under

subsection (a) may not exceed the amounts set forth in the following table:

Authorized Stockpile Disposals

Material for disposal Quantity

Bauxite Refractory .............................................................. 29,000 long calcined ton

Beryllium Metal .................................................................. 100 short tons

Chromite Chemical ............................................................. 34,000 short dry tons

Chromite Refractory ........................................................... 159,000 short dry tons

Chromium Ferroalloy ......................................................... 125,000 short tons

Columbium Carbide Powder .............................................. 21,372 pounds of contained Columbium

Columbium Concentrates ................................................... 1,733,454 pounds of contained Columbium

Columbium Ferro ................................................................ 249,396 pounds of contained Columbium

Columbium Metal—Ingots ................................................. 161,123 pounds of contained Columbium

Diamond, Stones ................................................................. 3,000,000 carats

Germanium Metal .............................................................. 28,198 kilograms

Graphite Natural Ceylon Lump ........................................ 5,492 short tons

Indium ................................................................................. 14,248 troy ounces

Mica Muscovite Block ......................................................... 301,000 pounds

Mica Phlogopite Block ........................................................ 130,745 pounds

Platinum .............................................................................. 439,887 troy ounces

Platinum—Iridium ............................................................. 4,450 troy ounces

Platinum—Palladium ......................................................... 750,000 troy ounces

Tantalum Carbide Powder ................................................. 22,688 pounds of contained Tantalum

Tantalum Metal Ingots ...................................................... 125,000 pounds of contained Tantalum

Tantalum Metal Powder .................................................... 125,000 pounds of contained Tantalum

Tantalum Minerals ............................................................. 1,751,364 pounds of contained Tantalum

Tantalum Oxide .................................................................. 122,730 pounds of contained Tantalum

Tungsten Carbide Powder .................................................. 2,032,896 pounds of contained Tungsten

Tungsten Ferro ................................................................... 2,024,143 pounds of contained Tungsten

Tungsten Metal Powder ..................................................... 1,898,009 pounds of contained Tungsten
FY99 NATIONAL DEFENSE STOCKPILE 596

Authorized Stockpile Disposals—Continued

Material for disposal Quantity

Tungsten Ores & Concentrates ......................................... 76,358,235 pounds of contained Tungsten

(2) The President may not dispose of materials under this section in excess of the disposals necessary to result in receipts in the

total amount specified in subsection (a)(5).

(c) MINIMIZATION OF DISRUPTION AND LOSS.—The President

may not dispose of materials under subsection (a) to the extent

that the disposal will result in—

(1) undue disruption of the usual markets of producers,

processors, and consumers of the materials proposed for disposal; or

(2) avoidable loss to the United States.

(d) TREATMENT OF RECEIPTS.—Notwithstanding section 9 of the

Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98h),

funds received as a result of the disposal of materials authorized

for disposal under subsection (a) shall be treated as follows:

(1) The following amounts shall be transferred to the Secretary of Health and Human Services, to be credited in the

manner determined by the Secretary to the Federal Hospital

Insurance Trust Fund and the Federal Supplementary Medical

Insurance Trust Fund:

(A) $3,000,000 during fiscal year 1999.

(B) $22,000,000 during fiscal year 2000.

(C) $28,000,000 during fiscal year 2001.

(D) $31,000,000 during fiscal year 2002.

(E) $8,000,000 during fiscal year 2003.

(2) The balance of the funds received shall be deposited

into the general fund of the Treasury.

(e) RELATIONSHIP TO OTHER DISPOSAL AUTHORITY.—The disposal authority provided in subsection (a) is new disposal authority

and is in addition to, and shall not affect, any other disposal authority provided by law regarding the materials specified in such

subsection.

(f ) AUTHORIZATION OF SALE.—The authority provided by this

section to dispose of materials contained in the National Defense

Stockpile so as to result in receipts of $100,000,000 of the amount

specified for fiscal year 1999 in subsection (a) by the end of that

fiscal year shall be effective only to the extent provided in advance

in appropriation Acts.

Department of Defense Appropriations Act, 1999

(Public Law 104–262, approved Oct. 17, 1998)

TITLE VIII

GENERAL PROVISIONS

* * * * * * *

SEC. 8109. ø50 U.S.C. 98d note¿ (a) DISPOSAL OF CERTAIN MATERIALS IN NATIONAL DEFENSE STOCKPILE.—Subject to subsection
597 FY99 NATIONAL DEFENSE STOCKPILE

(c), the President shall dispose of materials contained in the National Defense Stockpile and specified in the table in subsection (b)

so as to result in receipts to the United States in the amount of

$100,000,000 by the end of fiscal year 1999.

(b) DISPOSAL QUANTITIES.—The total quantities of materials

authorized for disposal by the President under subsection (a) may

not exceed the amounts set forth in the following table:

Authorized Stockpile Disposals

Material for disposal Quantity

Beryllium Metal .................................................................. 20 short tons

Chromium Ferroalloy ......................................................... 25,000 short tons

Columbium Carbide Powder .............................................. 21,372 pounds of contained Columbium

Diamond, Stones ................................................................. 600,000 carats

Platinum .............................................................................. 100,000 troy ounces

Platinum—Palladium ......................................................... 150,000 troy ounces

Tantalum Carbide Powder ................................................. 22,688 pounds of contained Tantalum

Tantalum Metal Ingots ...................................................... 25,000 pounds of contained Tantalum

Tantalum Metal Powder .................................................... 25,000 pounds of contained Tantalum

(c) MINIMIZATION OF DISRUPTION AND LOSS.—The President

may not dispose of materials under subsection (a) to the extent

that the disposal will result in—

(1) undue disruption of the usual markets of producers,

processors, and consumers of the materials proposed for disposal; or

(2) avoidable loss to the United States.

(d) TREATMENT OF RECEIPTS.—Notwithstanding section 9 of the

Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98h),

funds received as a result of the disposal of materials authorized

for disposal under subsection (a) shall be deposited into the general

fund of the Treasury.

(e) RELATIONSHIP TO OTHER DISPOSAL AUTHORITY.—(1) The

disposal authority provided in subsection (a) is new disposal authority and is in addition to, and shall not affect, any other disposal authority provided by law regarding the materials specified

in such subsection.

(2) The disposal authority provided in subsection (a) is referred

to in section 3303 of the National Defense Authorization Act for

Fiscal Year 1999, and the quantities of the materials specified in

the table in subsection (b) are included in the quantities specified

in the table in subsection (b) of such section 3303.

(f) DEFINITION.—In this section, the term ‘‘National Defense

Stockpile’’ means the stockpile provided for in section 4 of the Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98c).
FY98 NATIONAL DEFENSE STOCKPILE 598

National Defense Authorization Act for Fiscal Year 1998

(Public Law 105–85, approved Nov. 18, 1997)

TITLE XXXIII—NATIONAL DEFENSE STOCKPILE

SEC. 3301. ø50 U.S.C. 98d note¿ DEFINITIONS.

In this title:

(1) The term ‘‘National Defense Stockpile’’ means the

stockpile provided for in section 4 of the Strategic and Critical

Materials Stock Piling Act (50 U.S.C. 98c).

(2) The term ‘‘National Defense Stockpile Transaction

Fund’’ means the fund in the Treasury of the United States established under section 9(a) of the Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98h(a)).

(3) The term ‘‘Market Impact Committee’’ means the Market Impact Committee established under section 10(c) of the

Strategic and Critical Materials Stock Piling Act (50 U.S.C.

98h–1(c)).

* * * * * * *

SEC. 3303. ø50 U.S.C. 98d note¿ DISPOSAL OF BERYLLIUM COPPER MASTER ALLOY IN NATIONAL DEFENSE STOCKPILE.

(a) DISPOSAL AUTHORIZATION.—Pursuant to section 5(b) of the

Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98d(b)),

the National Defense Stockpile Manager may dispose of all beryllium copper master alloy from the National Defense Stockpile as

part of continued efforts to modernize the stockpile.

(b) PRECONDITION FOR DISPOSAL.—Before beginning the disposal of beryllium copper master alloy under subsection (a), the

National Defense Stockpile Manager shall certify to Congress that

the disposal of beryllium copper master alloy will not adversely affect the capability of the National Defense Stockpile to supply the

strategic and critical material needs of the United States.

(c) CONSULTATION WITH MARKET IMPACT COMMITTEE.—In disposing of beryllium copper master alloy under subsection (a), the

National Defense Stockpile Manager shall consult with the Market

Impact Committee to ensure that the disposal of beryllium copper

master alloy does not disrupt the domestic beryllium industry.

(d) EXTENDED SALES CONTRACTS.—The National Defense

Stockpile Manager shall provide for the use of long-term sales contracts for the disposal of beryllium copper master alloy under subsection (a) so that the domestic beryllium industry can re-absorb

this material into the market in a gradual and nondisruptive manner. However, no such contract shall provide for the disposal of beryllium copper master alloy over a period longer than eight years,

beginning on the date of the commencement of the first contract

under this section.

(e) RELATIONSHIP TO OTHER DISPOSAL AUTHORITY.—The disposal authority provided in subsection (a) is new disposal authority

and is in addition to, and shall not affect, any other disposal authority provided by law regarding materials in the National Defense Stockpile.

(f) BERYLLIUM COPPER MASTER ALLOY DEFINED.—For purposes

of this section, the term ‘‘beryllium copper master alloy’’ means an

alloy of nominally four percent beryllium in copper.
599 FY98 NATIONAL DEFENSE STOCKPILE

SEC. 3304. ø50 U.S.C. 98d note¿ DISPOSAL OF TITANIUM SPONGE IN NATIONAL DEFENSE STOCKPILE.

(a) DISPOSAL REQUIRED.—Subject to subsection (b), the National Defense Stockpile Manager shall dispose of 34,800 short tons

of titanium sponge contained in the National Defense Stockpile

provided for in section 4 of the Strategic and Critical Materials

Stock Piling Act (50 U.S.C. 98c) and excess to stockpile requirements.

(b) CONSULTATION WITH MARKET IMPACT COMMITTEE.—In disposing of titanium sponge under subsection (a), the National Defense Stockpile Manager shall consult with the Market Impact

Committee to ensure that the disposal of titanium sponge does not

disrupt the domestic titanium industry.

(c) RELATIONSHIP TO OTHER DISPOSAL AUTHORITY.—The disposal authority provided in subsection (a) is new disposal authority

and is in addition to, and shall not affect, any other disposal authority provided by law regarding materials in the National Defense Stockpile.

SEC. 3305. ø50 U.S.C. 98d note¿ DISPOSAL OF COBALT IN NATIONAL DEFENSE STOCKPILE.

(a) DISPOSAL REQUIRED.—Subject to subsections (b) and (c), the

President shall dispose of cobalt contained in the National Defense

Stockpile so as to result in receipts to the United States in total

amounts not less than—

(1) $20,000,000 during fiscal year 2002;

(2) $50,000,000 during fiscal year 2003;

(3) $64,000,000 during fiscal year 2004;

(4) $67,000,000 during fiscal year 2005; and

(5) $34,000,000 during fiscal year 2006.

(b) LIMITATIONS ON DISPOSAL AUTHORITY.—(1) The total quantity of cobalt authorized for disposal by the President under subsection (a) may not exceed 14,058,014 pounds.

(2) The President may not dispose of cobalt under this section

in fiscal year 2006 in excess of the disposals necessary to result in

receipts during that fiscal year in the total amount specified in subsection (a)(5).

(c) MINIMIZATION OF DISRUPTION AND LOSS.—The President

may not dispose of cobalt under subsection (a) to the extent that

the disposal will result in—

(1) undue disruption of the usual markets of producers,

processors, and consumers of cobalt; or

(2) avoidable loss to the United States.

(d) TREATMENT OF RECEIPTS.—Notwithstanding section 9 of the

Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98h),

funds received as a result of the disposal of cobalt under subsection

(a) shall be deposited into the general fund of the Treasury.

(e) RELATIONSHIP TO OTHER DISPOSAL AUTHORITY.—The disposal authority provided in subsection (a) is new disposal authority

and is in addition to, and shall not affect, any other disposal authority provided by law regarding materials in the National Defense Stockpile.

* * * * * * *
FY97 NATIONAL DEFENSE STOCKPILE 600

SEC. 3307. RETURN OF SURPLUS PLATINUM FROM THE DEPARTMENT

OF THE TREASURY.

(a) RETURN OF PLATINUM TO STOCKPILE.—Subject to subsection

(b), the Secretary of the Treasury, upon the request of the Secretary of Defense, shall return to the Secretary of Defense for sale

or other disposition platinum of the National Defense Stockpile

that has been loaned to the Department of the Treasury by the

Secretary of Defense, acting as the stockpile manager. The quantity

requested and required to be returned shall be any quantity that

the Secretary of Defense determines appropriate for sale or other

disposition.

(b) ALTERNATIVE TRANSFER OF FUNDS.—The Secretary of the

Treasury, with the concurrence of the Secretary of Defense, may

transfer to the Secretary of Defense funds in a total amount that

is equal to the fair market value of any platinum requested under

subsection (a) and not returned. A transfer of funds under this subsection shall be a substitute for a return of platinum under subsection (a). Upon a transfer of funds as a substitute for a return

of platinum, the platinum shall cease to be part of the National Defense Stockpile. A transfer of funds under this subsection shall be

charged to any appropriation for the Department of the Treasury

and shall be credited to the National Defense Stockpile Transaction

Fund.

(c) RESPONSIBILITY FOR COSTS.—The return of platinum under

subsection (a) by the Secretary of the Treasury shall be made without the expenditure of any funds available to the Department of

Defense. The Secretary of the Treasury shall be responsible for all

costs incurred in connection with the return, such as transportation, storage, testing, refining, or casting costs.

National Defense Authorization Act for Fiscal Year 1997

(Public Law 104–201, approved Sept. 23, 1996)

TITLE XXXIII—NATIONAL DEFENSE STOCKPILE

Subtitle A—Authorization of Disposals and Use of Funds

SEC. 3301. ø50 U.S.C. 98d note¿ DEFINITIONS.

In this title:

(1) The term ‘‘National Defense Stockpile’’ means the

stockpile provided for in section 4 of the Strategic and Critical

Materials Stock Piling Act (50 U.S.C. 98c).

(2) The term ‘‘National Defense Stockpile Transaction

Fund’’ means the fund in the Treasury of the United States established under section 9(a) of the Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98h(a)).

* * * * * * *

SEC. 3303. ø50 U.S.C. 98d note¿ DISPOSAL OF CERTAIN MATERIALS IN

NATIONAL DEFENSE STOCKPILE.

(a) DISPOSAL REQUIRED.—Subject to subsection (c), the President shall dispose of materials contained in the National Defense

Stockpile and specified in the table in subsection (b) so as to result

in receipts to the United States in total amounts not less than—

(1) $81,000,000 during fiscal year 1997; and
601 FY97 NATIONAL DEFENSE STOCKPILE

(2) $720,000,000 during the ten-fiscal year period ending

September 30, 2006.

(b) LIMITATIONS ON DISPOSAL AUTHORITY.—(1) The total quantities of materials authorized for disposal by the President under

subsection (a) may not exceed the amounts set forth in the following table:

Authorized Stockpile Disposals

Material for disposal Quantity

Aluminum ................................................................. 62,881 short tons

Cobalt ....................................................................... 26,000,000 pounds

contained

Columbium Ferro ..................................................... 930,911 pounds contained

Germanium Metal ................................................... 40,000 kilograms

Indium ...................................................................... 35,000 troy ounces

Palladium ................................................................. 15,000 troy ounces

Platinum ................................................................... 10,000 troy ounces

Rubber, Natural ....................................................... 125,138 long tons

Tantalum, Carbide Powder ..................................... 6,000 pounds contained

Tantalum, Minerals ................................................. 750,000 pounds contained

Tantalum, Oxide ...................................................... 40,000 pounds contained

(2) The President may not dispose of materials under this section during the 10-fiscal year period referred to in subsection (a)(2)

in excess of the disposals necessary to result in receipts during that

period in the total amount specified in such subsection.

(c) MINIMIZATION OF DISRUPTION AND LOSS.—The President

may not dispose of materials under subsection (a) to the extent

that the disposal will result in—

(1) undue disruption of the usual markets of producers,

processors, and consumers of the materials proposed for disposal; or

(2) avoidable loss to the United States.

(d) TREATMENT OF RECEIPTS.—Notwithstanding section 9 of the

Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98h),

funds received as a result of the disposal of materials under subsection (a) shall be—

(1) deposited into the general fund of the Treasury; and

(2) to the extent necessary, used to offset the revenues that

will be lost as a result of execution of the amendments made

by section 4303(a) of the National Defense Authorization Act

for Fiscal Year 1996 (Public Law 104–106; 110 Stat. 658).

(e) QUALIFYING OFFSETTING LEGISLATION.—This section is specifically enacted as qualifying offsetting legislation for the purpose

of offsetting fully the estimated revenues lost as a result of the

amendments made by subsection (a) of section 4303 of the National

Defense Authorization Act for Fiscal Year 1996 (Public Law 104–

106; 110 Stat. 658), and as such is deemed to satisfy the conditions

in subsection (b) of such section.
FY95 NATIONAL DEFENSE STOCKPILE 602

(f) RELATIONSHIP TO OTHER DISPOSAL AUTHORITY.—The disposal authority provided in subsection (a) is new disposal authority

and is in addition to, and shall not affect, any other disposal authority provided by law regarding the materials specified in such

subsection.

National Defense Authorization Act for Fiscal Year 1995

(Public Law 103–337, approved Oct. 5, 1994)

TITLE XXXIII—NATIONAL DEFENSE STOCKPILE

* * * * * * *

SEC. 3305. LIMITATIONS ON DISPOSAL OF CHROMITE AND MANGANESE ORES.

(a) PREFERENCE FOR DOMESTIC UPGRADING.—In offering to

enter into agreements pursuant to any provision of law for the disposal of chromite and manganese ores of metallurgical grade from

the National Defense Stockpile provided for in section 4 of the

Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98c),

the President shall give a right of first refusal on all such offers

to domestic ferroalloy upgraders.

(b) DOMESTIC FERROALLOY UPGRADER DEFINED.—For purposes

of this section, the term ‘‘domestic ferroalloy upgrader’’ means a

company or other business entity that, as determined by the

President—

(1) is engaged in operations to upgrade chromite or manganese ores of metallurgical grade or is capable of engaging in

such operations; and

(2) conducts a significant level of its research, development, engineering, and upgrading operations in the United

States.

(c) APPLICATION OF SECTION.—The requirements specified in

subsection (a) shall apply during fiscal year 1995.

National Defense Authorization Act for Fiscal Year 1994

(Public Law 103–160, approved Nov. 30, 1993)

TITLE XXXIII—NATIONAL DEFENSE STOCKPILE

Subtitle A—Authorizations of Disposals and Use of Funds

SEC. 3301. ø50 U.S.C. 98d note¿ DISPOSAL OF OBSOLETE AND EXCESS

MATERIALS CONTAINED IN THE NATIONAL DEFENSE

STOCKPILE.

(a) DISPOSAL AUTHORIZED.—Subject to the conditions specified

in subsection (b), the President may dispose of obsolete and excess

materials currently contained in the National Defense Stockpile

provided for in section 4 of the Strategic and Critical Materials

Stock Piling Act (50 U.S.C. 98c) in order to modernize the stockpile.

The materials subject to disposal under this subsection and the

quantity of each material authorized to be disposed of by the President are set forth in the following table:
603 FY94 NATIONAL DEFENSE STOCKPILE

Authorized Stockpile Disposals

Material for disposal Quantity

Analgesics ................................................................. 53,525 pounds of anhydrous morphine

alkaloid

Antimony .................................................................. 32,140 short tons

Diamond Dies, Small ............................................... 25,473 pieces

Manganese, Electrolytic .......................................... 14,172 short tons

Mica, Muscovite Block, Stained and Better .......... 1,866,166 pounds

Mica, Muscovite Film, 1st & 2d quality ................ 158,440 pounds

Mica, Muscovite Splittings ...................................... 12,540,382 pounds

Quinidine .................................................................. 2,471,287 avoirdupois

ounces

Quinidine, Non-Stockpile Grade ............................. 1,691 avoirdupois

ounces

Quinine ..................................................................... 2,770,091 avoirdupois

ounces

Quinine, Non-Stockpile Grade ................................ 475,950 avoirdupois

ounces

Rare Earths .............................................................. 504 short dry tons

Vanadium Pentoxide ............................................... 718 short tons of contained vanadium

(b) CONDITIONS ON DISPOSAL.—The authority of the President

under subsection (a) to dispose of materials stored in the National

Defense Stockpile may not be used unless and until the Secretary

of Defense certifies to Congress that the disposal of such materials

will not adversely affect the capability of the stockpile to supply the

strategic and critical materials necessary to meet the needs of the

United States during a period of national emergency that requires

a significant level of mobilization of the economy of the United

States, including any reconstitution of the military and industrial

capabilities necessary to meet the planning assumptions used by

the Secretary of Defense under section 14(b) of the Strategic and

Critical Materials Stock Piling Act (50 U.S.C. 98h–5(b)).

* * * * * * *

SEC. 3304. CONVERSION OF CHROMIUM ORE TO HIGH PURITY CHROMIUM METAL.

(a) UPGRADE PROGRAM AUTHORIZED.—Subject to subsection (b),

the National Defense Stockpile Manager may carry out a program

to upgrade to high purity chromium metal any stocks of chromium

ore held in the National Defense Stockpile provided for in section

4 of the Strategic and Critical Materials Stock Piling Act (50 U.S.C.

98c) if the National Defense Stockpile Manager determines that additional quantities of high purity chromium metal are needed in

the stockpile.

(b) INCLUSION IN ANNUAL MATERIALS PLAN.—Before entering

into any contract in connection with the upgrade program authorized under subsection (a), the National Defense Stockpile Manager

shall include a description of the upgrade program in the report

containing the annual materials plan for the operation of the Na-
FY93 NATIONAL DEFENSE STOCKPILE 604

tional Defense Stockpile required to be submitted to Congress

under section 11(b) of the Strategic and Critical Materials Stock

Piling Act (50 U.S.C. 98h–2(b)) or in a revision of the report made

in the manner provided by section 5(a)(2) of such Act (50 U.S.C.

98d(a)(2)).

National Defense Authorization Act for Fiscal Year 1993

(Public Law 102–484, approved Oct. 23, 1992)

TITLE XXXIII—NATIONAL DEFENSE STOCKPILE

Subtitle A—Modernization Program

SEC. 3301. DEFINITIONS.

For purposes of this subtitle:

(1) The terms ‘‘National Defense Stockpile’’ and ‘‘stockpile’’

mean the stockpile provided for in section 4 of the Strategic

and Critical Materials Stock Piling Act (50 U.S.C. 98c).

(2) The term ‘‘National Defense Stockpile Transaction

Fund’’ means the fund in the Treasury of the United States established under section 9(a) of the Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98h(a)).

SEC. 3302. DISPOSAL OF OBSOLETE AND EXCESS MATERIALS CONTAINED IN THE NATIONAL DEFENSE STOCKPILE.

(a) DISPOSAL AUTHORIZED.—Subject to the conditions specified

in subsection (b), the President may dispose of obsolete and excess

materials currently contained in the National Defense Stockpile in

order to modernize the stockpile. The materials subject to disposal

under this subsection and the quantity of each material authorized

to be disposed of by the President are set forth in the following

table:

Authorized Stockpile Disposals

Material for disposal Quantity

Aluminum Oxide, Abrasive Grain .......................... 51,022 short tons

Aluminum Oxide, Fused Crude .............................. 249,867 short tons

Antimony .................................................................. 2,007 short tons

Asbestos, Chrysotile ................................................ 3,004 short tons

Bauxite, Metal Grade, Jamaican ............................ 12,457,740 long tons

Bauxite, Metal Grade, Surinam ............................. 5,299,597 long tons

Bauxite, Refractory .................................................. 207,067 long tons

Beryl Ore .................................................................. 17,729 short tons

Bismuth .................................................................... 1,825,955 pounds

Cadmium .................................................................. 6,328,570 pounds

Chromite, Chemical Grade Ore .............................. 208,414 short dry tons

Chromite, Metallurgical Grade Ore ....................... 1,511,356 short dry

tons

Chromite, Refractory Grade Ore ............................ 232,414 short dry tons

Chromium, Ferro ..................................................... 576,526 short tons

Cobalt ....................................................................... 13,000,000 pounds of

contained cobalt

Copper ....................................................................... 29,641 short tons

Diamond, Bort .......................................................... 4,001,334 carats
605 FY93 NATIONAL DEFENSE STOCKPILE

Authorized Stockpile Disposals—Continued

Material for disposal Quantity

Diamond Stones ....................................................... 2,422,075 carats

Fluorspar, Acid Grade ............................................. 892,856 short dry tons

Fluorspar, Metallurgical Grade .............................. 410,822 short dry tons

Germanium .............................................................. 713 kilograms

Graphite, Natural, Malagasy, Crystalline ............. 10,573 short tons

Graphite, Natural, Other than Ceylon & Malagasy.2,803 short tons

Iodine ........................................................................ 5,835,022 pounds

Jewel bearings ......................................................... 51,778,337 pieces

Lead .......................................................................... 610,053 short tons

Manganese, Ferro .................................................... 938,285 short tons

Manganese Ore, Metallurgical Grade .................... 1,627,425 short dry

tons

Manganese, Battery Grade, Natural Ore .............. 68,226 short dry tons

Manganese, Battery Grade, Synthetic Dioxide ..... 3,011 short dry tons

Mercury .................................................................... 128,026 flasks (76-

pounds)

Mica, Phlogopite Splittings ..................................... 963,251 pounds

Nickel ........................................................................ 37,214 short tons

Quartz Crystals, Natural ........................................ 800,000 pounds

Rutile ........................................................................ 39,200 short tons

Sapphire & Ruby ..................................................... 16,305,502 carats

Sebacic Acid ............................................................. 5,009,697 pounds

Silicon Carbide ......................................................... 28,774 short tons

Silver ......................................................................... 83,951,492 troy ounces

Tin ............................................................................. 141,278 metric tons

Vegetable Tannin, Chestnut ................................... 4,976 long tons

Vegetable Tannin, Quebracho ................................ 28,832 long tons

Vegetable Tannin, Wattle ....................................... 15,000 long tons

Zinc ........................................................................... 378,768 short tons

(b) CONDITIONS ON DISPOSAL.—The authority of the President

under subsection (a) to dispose of materials stored in the stockpile

may not be used unless and until the President submits to Congress a revised annual materials plan under section 11(b) of the

Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98h–

2(b)) that—

(1) complies with the requirements of section 10(c) of such

Act (50 U.S.C. 98h–1), as added by section 3314; and

(2) contains the certification of the Secretary of Defense

that the disposal of such materials will not adversely affect the

capability of the National Defense Stockpile to supply the strategic and critical materials necessary to meet the needs of the

United States during a period of national emergency that requires a significant level of mobilization of the economy of the

United States, including any reconstitution of the military and

industrial capabilities necessary to meet the planning assumptions used by the Secretary of Defense under section 14(b) of

such Act (50 U.S.C. 98h–5(b)).
FY93 NATIONAL DEFENSE STOCKPILE 606

(c) REQUIRED USE OF PREVIOUS DISPOSAL AUTHORITIES.—(1)

The President shall complete the disposal of all quantities of materials in the National Defense Stockpile that—

(A) have been previously authorized for disposal by law;

and

(B) have not been disposed of before the date of the enactment of this Act.

(2) The disposal of materials required by this subsection shall

be completed before the end of the five-year period beginning on

October 1, 1992, unless the President notifies Congress that the

Market Impact Committee established under section 10(c) of the

Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98h–

1(c)), as added by section 3314, determines that completion of the

disposal of such materials during such period would result in the

undue disruption of the usual markets of such materials. The notification shall also indicate the date on which the disposal of such

materials will be completed.

(d) SPECIAL LIMITATION REGARDING SILVER.—(1) The disposal

of silver under this section may only occur in the form of coins or,

subject to paragraph (2), as material furnished by the Federal Government to a contractor for the use of the contractor in the performance of a Federal Government contract.

(2) A contractor receiving silver as Government furnished material shall pay the Federal Government the amount equal to the

fair market value of the silver, as determined by the National Defense Stockpile Manager. The amount paid by the contractor for

the silver shall be deposited in the National Defense Stockpile

Transaction Fund.

(e) SPECIAL LIMITATION REGARDING CHROMITE AND MANGANESE ORES.—During fiscal year 1993, the disposal of chromite

and manganese ores of metallurgical grade under subsection (a)

may be made only for processing within the United States and the

territories and possessions of the United States.

(f) SPECIAL LIMITATION REGARDING CHROMIUM AND MANGANESE FERRO.—The disposal of chromium ferro and manganese

ferro under subsection (a) may not commence before October 1,

1995.

(g) RELATIONSHIP TO OTHER DISPOSAL AUTHORITY.—The disposal authority provided in subsection (a) is in addition to any

other disposal authority provided by law.

SEC. 3303. USE OF BARTER ARRANGEMENTS IN MODERNIZATION

PROGRAM.

The President may enter into barter arrangements to dispose

of materials under section 3302 in order to acquire strategic and

critical materials for, or upgrade strategic and critical materials in,

the National Defense Stockpile.

SEC. 3304. DEPOSIT OF PROCEEDS FROM DISPOSALS IN THE NATIONAL DEFENSE STOCKPILE FUND.

All moneys received from the sale of materials under section

3302 shall be deposited in the National Defense Stockpile Transaction Fund.

* * * * * * *
607 FY93 NATIONAL DEFENSE STOCKPILE

SEC. 3306. ø50 U.S.C. 98h–1 note¿ ADVISORY COMMITTEE REGARDING

OPERATION AND MODERNIZATION OF THE STOCKPILE.

(a) APPOINTMENT.—Not later than March 15, 1993, the President shall appoint an advisory committee under section 10(a) of the

Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98h–

1(a)) to make recommendations to the President concerning the operation and modernization of the National Defense Stockpile.

(b) MEMBERSHIP.—The committee shall consist of members

who have expertise regarding strategic and critical materials,

including—

(1) employees of Federal agencies (including the Department of Defense, the Department of State, the Department of

Commerce, the Department of Energy, the Department of the

Treasury, the Department of the Interior, and the Federal

Emergency Management Agency);

(2) representatives of mining, processing, and fabricating

industries and consumers that would be affected by the acquisition of materials for the stockpile or the disposal of materials

from the stockpile; and

(3) other interested persons or representatives of interested organizations.

* * * * * * *

Subtitle B—Programmatic Changes

* * * * * * *

SEC. 3315. CLARIFICATION OF THE STOCKPILE STATUS OF CERTAIN

MATERIALS.

All materials purchased under section 303 of the Defense Production Act of 1950 (50 U.S.C. App. 2093) and held in the Defense

Production Act inventory as of June 30, 1992, are hereby transferred to the National Defense Stockpile and shall be managed,

controlled, and subject to disposal by the National Defense Stockpile Manager as provided in the Strategic and Critical Materials

Stock Piling Act (50 U.S.C. 98a et seq.).
608

d. Sale of Naval Petroleum Reserve Numbered 1

National Defense Authorization Act for Fiscal Year 1996

(Public Law 104–106, approved Feb. 10, 1996)

TITLE XXXIV—NAVAL PETROLEUM RESERVES

* * * * * * *

Subtitle B—Sale of Naval Petroleum Reserve

SEC. 3411. ø10 U.S.C. 7420 note¿ DEFINITIONS.

For purposes of this subtitle:

(1) The terms ‘‘Naval Petroleum Reserve Numbered 1’’ and

‘‘reserve’’ mean Naval Petroleum Reserve Numbered 1, commonly referred to as the Elk Hills Unit, located in Kern County, California, and established by Executive order of the President, dated September 2, 1912.

(2) The term ‘‘naval petroleum reserves’’ has the meaning

given that term in section 7420(2) of title 10, United States

Code, except that the term does not include Naval Petroleum

Reserve Numbered 1.

(3) The term ‘‘unit plan contract’’ means the unit plan contract between equity owners of the lands within the boundaries

of Naval Petroleum Reserve Numbered 1 entered into on June

19, 1944.

(4) The term ‘‘effective date’’ means the date of the enactment of this Act.

(5) The term ‘‘Secretary’’ means the Secretary of Energy.

(6) The term ‘‘appropriate congressional committees’’

means the Committee on Armed Services of the Senate and the

Committee on Armed Services and the Committee on Commerce of the House of Representatives.

SEC. 3412. ø10 U.S.C. 7420 note¿ SALE OF NAVAL PETROLEUM RESERVE

NUMBERED 1.

(a) SALE OF RESERVE REQUIRED.—Subject to section 3414, not

later than two years after the effective date, the Secretary of Energy shall enter into one or more contracts for the sale of all right,

title, and interest of the United States in and to all lands owned

or controlled by the United States inside Naval Petroleum Reserve

Numbered 1. Chapter 641 of title 10, United States Code, shall not

apply to the sale of the reserve.

(b) EQUITY FINALIZATION.—(1) Not later than eight months

after the effective date, the Secretary shall finalize equity interests

of the known oil and gas zones in Naval Petroleum Reserve Numbered 1 in the manner provided by this subsection.
609 Sec. 3412 SALE OF NAVAL PETROLEUM RESERVE

(2) The Secretary shall retain the services of an independent

petroleum engineer, mutually acceptable to the equity owners, who

shall prepare a recommendation on final equity figures. The Secretary may accept the recommendation of the independent petroleum engineer for final equity in each known oil and gas zone and

establish final equity interest in Naval Petroleum Reserve Numbered 1 in accordance with the recommendation, or the Secretary

may use such other method to establish final equity interest in the

reserve as the Secretary considers appropriate.

(3) If, on the effective date, there is an ongoing equity redetermination dispute between the equity owners under section 9(b) of

the unit plan contract, the dispute shall be resolved in the manner

provided in the unit plan contract within eight months after the effective date. The resolution shall be considered final for all purposes under this section.

(c) NOTICE OF SALE.—Not later than two months after the effective date, the Secretary shall publish a notice of intent to sell

Naval Petroleum Reserve Numbered 1. The Secretary shall make

all technical, geological, and financial information relevant to the

sale of the reserve available to all interested and qualified buyers

upon request. The Secretary, in consultation with the Administrator of General Services, shall ensure that the sale process is fair

and open to all interested and qualified parties.

(d) ESTABLISHMENT OF MINIMUM SALE PRICE.—(1) Not later

than seven months after the effective date, the Secretary shall retain the services of five independent experts in the valuation of oil

and gas fields to conduct separate assessments, in a manner consistent with commercial practices, of the value of the interest of the

United States in Naval Petroleum Reserve Numbered 1. The independent experts shall complete their assessments within 11 months

after the effective date. In making their assessments, the independent experts shall consider (among other factors)—

(A) all equipment and facilities to be included in the sale;

(B) the estimated quantity of petroleum and natural gas in

the reserve; and

(C) the net present value of the anticipated revenue

stream that the Secretary and the Director of the Office of

Management and Budget jointly determine the Treasury would

receive from the reserve if the reserve were not sold, adjusted

for any anticipated increases in tax revenues that would result

if the reserve were sold.

(2) The independent experts retained under paragraph (1) shall

also determine and submit to the Secretary the estimated total

amount of the cost of any environmental restoration and remediation necessary at the reserve. The Secretary shall report the estimate to the Director of the Office of Management and Budget, the

Secretary of the Treasury, and Congress.

(3) The Secretary, in consultation with the Director of the Office of Management and Budget, shall set the minimum acceptable

price for the reserve. The Secretary may not set the minimum acceptable price below the higher of—

(A) the average of the five assessments prepared under

paragraph (1); and
Sec. 3412 SALE OF NAVAL PETROLEUM RESERVE 610

(B) the average of three assessments after excluding the

high and low assessments.

(e) ADMINISTRATION OF SALE; DRAFT CONTRACT.—(1) Not later

than two months after the effective date, the Secretary shall retain

the services of an investment banker or an appropriate equivalent

financial adviser to independently administer, in a manner consistent with commercial practices and in a manner that maximizes

sale proceeds to the Government, the sale of Naval Petroleum Reserve Numbered 1 under this section. Costs and fees of retaining

the investment banker or financial adviser may be paid out of the

proceeds of the sale of the reserve.

(2) Not later than 11 months after the effective date, the investment banker or financial adviser retained under paragraph (1)

shall complete a draft contract or contracts for the sale of Naval

Petroleum Reserve Numbered 1, which shall accompany the solicitation of offers and describe the terms and provisions of the sale

of the interest of the United States in the reserve.

(3) The draft contract or contracts shall identify—

(A) all equipment and facilities to be included in the sale;

and

(B) any potential claim or liability (including liability for

environmental restoration and remediation), and the extent of

any such claim or liability, for which the United States is responsible under subsection (g).

(4) The draft contract or contracts, including the terms and

provisions of the sale of the interest of the United States in the reserve, shall be subject to review and approval by the Secretary, the

Secretary of the Treasury, and the Director of the Office of Management and Budget. Each of those officials shall complete the review of, and approve or disapprove, the draft contract or contracts

not later than 12 months after the effective date.

(f) SOLICITATION OF OFFERS.—(1) Not later than 13 months

after the effective date, the Secretary shall publish the solicitation

of offers for Naval Petroleum Reserve Numbered 1.

(2) Not later than 18 months after the effective date, the Secretary shall identify the highest responsible offer or offers for purchase of the interest of the United States in Naval Petroleum Reserve Numbered 1 that, in total, meet or exceed the minimum acceptable price determined under subsection (d)(3).

(3) The Secretary shall take such action immediately after the

effective date as is necessary to obtain from an independent petroleum engineer within 10 months after that date a reserve report

prepared in a manner consistent with commercial practices. The

Secretary shall use the reserve report in support of the preparation

of the solicitation of offers for the reserve.

(g) FUTURE LIABILITIES.—To effectuate the sale of the interest

of the United States in Naval Petroleum Reserve Numbered 1, the

Secretary may extend such indemnities and warranties as the Secretary considers reasonable and necessary to protect the purchaser

from claims arising from the ownership in the reserve by the

United States.

(h) MAINTAINING PRODUCTION.—Until the sale of Naval Petroleum Reserve Numbered 1 is completed under this section, the Secretary shall continue to produce the reserve at the maximum daily
611 Sec. 3413 SALE OF NAVAL PETROLEUM RESERVE

oil or gas rate from a reservoir, which will permit maximum economic development of the reservoir consistent with sound oil field

engineering practices in accordance with section 3 of the unit plan

contract.

(i) NONCOMPLIANCE WITH DEADLINES.—At any time during the

two-year period beginning on the effective date, if the Secretary determines that the actions necessary to complete the sale of the reserve within that period are not being taken or timely completed,

the Secretary shall transmit to the appropriate congressional committees a written notification of that determination together with

a plan setting forth the actions that will be taken to ensure that

the sale of the reserve will be completed within that period. The

Secretary shall consult with the Director of the Office of Management and Budget in preparing the plan for submission to the committees.

(j) OVERSIGHT.—The Comptroller General shall monitor the actions of the Secretary relating to the sale of the reserve and report

to the appropriate congressional committees any findings on such

actions that the Comptroller General considers appropriate to report to the committees.

(k) ACQUISITION OF SERVICES.—The Secretary may enter into

contracts for the acquisition of services required under this section

under the authority of paragraph (7) of section 303(c) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C.

253(c)), except that the notification required under subparagraph

(B) of such paragraph for each contract shall be submitted to Congress not less than 7 days before the award of the contract.

SEC. 3413. ø10 U.S.C. 7420 note¿ EFFECT OF SALE OF RESERVE.

(a) EFFECT ON EXISTING CONTRACTS.—(1) In the case of any

contract, in effect on the effective date, for the purchase of production from any part of the United States’ share of Naval Petroleum

Reserve Numbered 1, the sale of the interest of the United States

in the reserve shall be subject to the contract for a period of three

months after the closing date of the sale or until termination of the

contract, whichever occurs first. The term of any contract entered

into after the effective date for the purchase of the production shall

not exceed the anticipated closing date for the sale of the reserve.

(2) The Secretary shall exercise the termination procedures

provided in the contract between the United States and Bechtel Petroleum Operation, Inc., Contract Number DE–ACO1–85FE60520

so that the contract terminates not later than the date of closing

of the sale of Naval Petroleum Reserve Numbered 1 under section

3412.

(3) The Secretary shall exercise the termination procedures

provided in the unit plan contract so that the unit plan contract

terminates not later than the date of closing of the sale of reserve.

(b) EFFECT ON ANTITRUST LAWS.—Nothing in this subtitle shall

be construed to alter the application of the antitrust laws of the

United States to the purchaser or purchasers (as the case may be)

of Naval Petroleum Reserve Numbered 1 or to the lands in the reserve subject to sale under section 3412 upon the completion of the

sale.
Sec. 3414 SALE OF NAVAL PETROLEUM RESERVE 612

(c) PRESERVATION OF PRIVATE RIGHT, TITLE, AND INTEREST.—

Nothing in this subtitle shall be construed to adversely affect the

ownership interest of any other entity having any right, title, and

interest in and to lands within the boundaries of Naval Petroleum

Reserve Numbered 1 and which are subject to the unit plan contract.

(d) TRANSFER OF OTHERWISE NONTRANSFERABLE PERMIT.—The

Secretary may transfer to the purchaser or purchasers (as the case

may be) of Naval Petroleum Reserve Numbered 1 the incidental

take permit regarding the reserve issued to the Secretary by the

United States Fish and Wildlife Service and in effect on the effective date if the Secretary determines that transfer of the permit is

necessary to expedite the sale of the reserve in a manner that

maximizes the value of the sale to the United States. The transferred permit shall cover the identical activities, and shall be subject to the same terms and conditions, as apply to the permit at the

time of the transfer.

SEC. 3414. ø10 U.S.C. 7420 note¿ CONDITIONS ON SALE PROCESS.

(a) NOTICE REGARDING SALE CONDITIONS.—The Secretary may

not enter into any contract for the sale of Naval Petroleum Reserve

Numbered 1 under section 3412 until the end of the 31-day period

beginning on the date on which the Secretary submits to the appropriate congressional committees a written notification—

(1) describing the conditions of the proposed sale; and

(2) containing an assessment by the Secretary of whether

it is in the best interests of the United States to sell the reserve under such conditions.

(b) AUTHORITY TO SUSPEND SALE.—(1) The Secretary may suspend the sale of Naval Petroleum Reserve Numbered 1 under section 3412 if the Secretary and the Director of the Office of Management and Budget jointly determine that—

(A) the sale is proceeding in a manner inconsistent with

achievement of a sale price that reflects the full value of the

reserve; or

(B) a course of action other than the immediate sale of the

reserve is in the best interests of the United States.

(2) Immediately after making a determination under paragraph (1) to suspend the sale of Naval Petroleum Reserve Numbered 1, the Secretary shall submit to the appropriate congressional committees a written notification describing the basis for the

determination and requesting a reconsideration of the merits of the

sale of the reserve.

(c) EFFECT OF RECONSIDERATION NOTICE.—After the Secretary

submits a notification under subsection (b), the Secretary may not

complete the sale of Naval Petroleum Reserve Numbered 1 under

section 3412 or any other provision of law unless the sale of the

reserve is authorized in an Act of Congress enacted after the date

of the submission of the notification.

SEC. 3415. ø10 U.S.C. 7420 note¿ TREATMENT OF STATE OF CALIFORNIA

CLAIM REGARDING RESERVE.

(a) RESERVATION OF FUNDS.—After the costs incurred in the

conduct of the sale of Naval Petroleum Reserve Numbered 1 under

section 3412 are deducted, nine percent of the remaining proceeds
613 Sec. 3416 SALE OF NAVAL PETROLEUM RESERVE

from the sale of the reserve shall be reserved in a contingent fund

in the Treasury for payment to the State of California for the

Teachers’ Retirement Fund of the State in the event that, and to

the extent that, the claims of the State against the United States

regarding production and proceeds of sale from Naval Petroleum

Reserve Numbered 1 are—

(1) settled by agreement with the United States under subsection (c); or

(2) finally resolved in favor of the State by a court of competent jurisdiction, if a settlement agreement is not reached.

(b) DISPOSITION OF FUNDS.—In such amounts as may be provided in appropriation Acts, amounts in the contingent fund shall

be available for paying a claim described in subsection (a). After

final disposition of the claims, any unobligated balance in the contingent fund shall be credited to the general fund of the Treasury.

If no payment is made from the contingent fund within 10 years

after the effective date, amounts in the contingent fund shall be

credited to the general fund of the Treasury.

(c) SETTLEMENT OFFER.—Not later than 30 days after the date

of the sale of Naval Petroleum Reserve Numbered 1 under section

3412, the Secretary shall offer to settle all claims of the State of

California against the United States with respect to lands in the

reserve located in sections 16 and 36 of township 30 south, range

23 east, Mount Diablo Principal Meridian, California, and production or proceeds of sale from the reserve, in order to provide proper

compensation for the State’s claims. The Secretary shall base the

amount of the offered settlement payment from the contingent fund

on the fair value for the State’s claims, including the mineral estate, not to exceed the amount reserved in the contingent fund.

(d) RELEASE OF CLAIMS.—Acceptance of the settlement offer

made under subsection (c) shall be subject to the condition that all

claims against the United States by the State of California for the

Teachers’ Retirement Fund of the State be released with respect to

lands in Naval Petroleum Reserve Numbered 1, including sections

16 and 36 of township 30 south, range 23 east, Mount Diablo Principal Meridian, California, or production or proceeds of sale from

the reserve.

SEC. 3416. ø10 U.S.C. 7420 note¿ STUDY OF FUTURE OF OTHER NAVAL

PETROLEUM RESERVES.

(a) STUDY REQUIRED.—The Secretary of Energy shall conduct

a study to determine which of the following options, or combinations of options, regarding the naval petroleum reserves (other

than Naval Petroleum Reserve Numbered 1) would maximize the

value of the reserves to the United States:

(1) Retention and operation of the naval petroleum reserves by the Secretary under chapter 641 of title 10, United

States Code.

(2) Transfer of all or a part of the naval petroleum reserves to the jurisdiction of another Federal agency for administration under chapter 641 of title 10, United States Code.

(3) Transfer of all or a part of the naval petroleum reserves to the Department of the Interior for leasing in accordance with the Mineral Leasing Act (30 U.S.C. 181 et seq.) and
Sec. 3416 SALE OF NAVAL PETROLEUM RESERVE 614

surface management in accordance with the Federal Land Policy and Management Act (43 U.S.C. 1701 et seq.).

(4) Sale of the interest of the United States in the naval

petroleum reserves.

(b) CONDUCT OF STUDY.—The Secretary shall retain an independent petroleum consultant to conduct the study.

(c) CONSIDERATIONS UNDER STUDY.—An examination of the

value to be derived by the United States from the transfer or sale

of the naval petroleum reserves shall include an assessment and

estimate of the fair market value of the interest of the United

States in the naval petroleum reserves. The assessment and estimate shall be made in a manner consistent with customary property valuation practices in the oil and gas industry.

(d) REPORT AND RECOMMENDATIONS REGARDING STUDY.—Not

later than June 1, 1996, the Secretary shall submit to Congress a

report describing the results of the study and containing such recommendations (including proposed legislation) as the Secretary

considers necessary to implement the option, or combination of options, identified in the study that would maximize the value of the

naval petroleum reserves to the United States.
615

e. Disposal of Other Naval Petroleum Reserves

Strom Thurmond National Defense Authorization Act for

Fiscal Year 1999

(Public Law 105–261, approved Oct. 17, 1998)

TITLE XXXIV—NAVAL PETROLEUM RESERVES

SEC. 3401. ø10 U.S.C. 7420 note¿ DEFINITIONS.

In this title:

(1) The term ‘‘naval petroleum reserves’’ has the meaning

given the term in section 7420(2) of title 10, United States

Code.

(2) The term ‘‘Naval Petroleum Reserve Numbered 2’’

means the naval petroleum reserve, commonly referred to as

the Buena Vista unit, that is located in Kern County, California, and was established by Executive order of the President, dated December 13, 1912.

(3) The term ‘‘Naval Petroleum Reserve Numbered 3’’

means the naval petroleum reserve, commonly referred to as

the Teapot Dome unit, that is located in the State of Wyoming

and was established by Executive order of the President, dated

April 30, 1915.

(4) The term ‘‘Oil Shale Reserve Numbered 2’’ means the

naval petroleum reserve that is located in the State of Utah

and was established by Executive order of the President, dated

December 6, 1916.

(5) The term ‘‘antitrust laws’’ has the meaning given the

term in section 1(a) of the Clayton Act (15 U.S.C. 12(a)), except

that the term also includes—

(A) the Act of June 19, 1936 (15 U.S.C. 13 et seq.;

commonly known as the Robinson-Patman Act); and

(B) section 5 of the Federal Trade Commission Act (15

U.S.C. 45), to the extent that such section applies to unfair

methods of competition.

(6) The term ‘‘petroleum’’ has the meaning given the term

in section 7420(3) of title 10, United States Code.

SEC. 3402. ø10 U.S.C. 7420 note¿ AUTHORIZATION OF APPROPRIATIONS.

(a) AMOUNT.—There are hereby authorized to be appropriated to the Secretary of Energy $22,500,000 for fiscal year 1999 for the

purpose of carrying out—

(1) activities under chapter 641 of title 10, United States

Code, relating to the naval petroleum reserves;

(2) closeout activities at Naval Petroleum Reserve Numbered 1 upon the sale of that reserve under subtitle B of title
Sec. 3403 DISPOAL OF OTHER PETROLEUM RESERVES 616

XXXIV of the National Defense Authorization Act for Fiscal

Year 1996 (Public Law 104–106; 10 U.S.C. 7420 note); and

(3) activities under this title relating to the disposition of

Naval Petroleum Reserve Numbered 2, Naval Petroleum Reserve Numbered 3, and Oil Shale Reserve Numbered 2.

(b) PERIOD OF AVAILABILITY.—Funds appropriated pursuant to

the authorization of appropriations in subsection (a) shall remain

available until expended.

SEC. 3403. ø10 U.S.C. 7420 note¿ DISPOSAL OF NAVAL PETROLEUM RESERVE NUMBERED 2.

(a) DISPOSAL OF FORD CITY LOTS AUTHORIZED.—(1) Subject to

section 3406, the Secretary of Energy may dispose of the portion

of Naval Petroleum Reserve Numbered 2 that is located within the

town lots in Ford City, California, which are identified as ‘‘Drill

Sites Numbered 3A, 4, 6, 9A, 20, 22, 24, and 26’’ and described in

the document entitled ‘‘Ford City Drill Site Locations—NPR–2,’’

and accompanying maps on file in the office of the Deputy Assistant Secretary for Naval Petroleum and Oil Shale Reserves of the

Department of Energy.

(2) The Secretary of Energy shall carry out the disposal authorized by paragraph (1) by competitive sale or lease consistent

with commercial practices, by transfer to another Federal agency

or a public or private entity, or by such other means as the Secretary considers appropriate. Any competitive sale or lease under

this subsection shall provide for the disposal of all right, title, and

interest of the United States in the property to be conveyed. The

Secretary of Energy may use the authority provided by the Act of

June 14, 1926 (43 U.S.C. 869 et seq.; commonly known as the

Recreation and Public Purposes Act), in the same manner and to

the same extent as the Secretary of the Interior, to dispose of the

portion of Naval Petroleum Reserve Numbered 2 described in paragraph (1).

(3) Section 2696(a) of title 10, United States Code, regarding

the screening of real property for further Federal use before disposal, shall apply to the disposal authorized by paragraph (1).

(b) TRANSFER OF ADMINISTRATIVE JURISDICTION AUTHORIZED.—

(1) The Secretary of Energy shall continue to administer Naval Petroleum Reserve Numbered 2 (other than the portion of the reserve

authorized for disposal under subsection (a)) in accordance with

chapter 641 of title 10, United States Code, until such time as the

Secretary makes a determination to abandon oil and gas operations

in Naval Petroleum Reserve Numbered 2 in accordance with commercial operating practices.

(2) After oil and gas operations are abandoned in Naval Petroleum Reserve Numbered 2, the Secretary of Energy may transfer

to the Secretary of the Interior administrative jurisdiction and control over all public domain lands included within Naval Petroleum

Reserve Numbered 2 (other than the portion of the reserve authorized for disposal under subsection (a)) for management in accordance with the general land laws.

(c) RELATIONSHIP TO ANTITRUST LAWS.—This section does not

modify, impair, or supersede the operation of the antitrust laws.
617 Sec. 3405 DISPOAL OF OTHER PETROLEUM RESERVES

SEC. 3404. ø10 U.S.C. 7420 note¿ DISPOSAL OF NAVAL PETROLEUM RESERVE NUMBERED 3.

(a) ADMINISTRATION PENDING TERMINATION OF OPERATIONS.— The Secretary of Energy shall continue to administer Naval Petroleum Reserve Numbered 3 in accordance with chapter 641 of title

10, United States Code, until such time as the Secretary makes a

determination to abandon oil and gas operations in Naval Petroleum Reserve Numbered 3 in accordance with commercial operating practices.

(b) DISPOSAL AUTHORIZED.—After oil and gas operations are

abandoned in Naval Petroleum Reserve Numbered 3, the Secretary

of Energy may dispose of the reserve as provided in this subsection.

Subject to section 3406, the Secretary shall carry out any such disposal of the reserve by sale or lease or by transfer to another Federal agency. Any sale or lease shall provide for the disposal of all

right, title, and interest of the United States in the property to be

conveyed and shall be conducted in accordance with competitive

procedures consistent with commercial practices, as established by

the Secretary.

(c) RELATIONSHIP TO ANTITRUST LAWS.—This section does not

modify, impair, or supersede the operation of the antitrust laws.

SEC. 3405. ø10 U.S.C. 7420 note¿ DISPOSAL OF OIL SHALE RESERVE

NUMBERED 2.

(a) DEFINITIONS.—In this section:

(1) NOSR–2.—The term ‘‘NOSR–2’’ means Oil Shale Reserve Numbered 2, as identified on a map on file in the Office

of the Secretary of the Interior.

(2) MOAB SITE.—The term ‘‘Moab site’’ means the Moab

uranium milling site located approximately three miles northwest of Moab, Utah, and identified in the Final Environmental

Impact Statement issued by the Nuclear Regulatory Commission in March 1996 in conjunction with Source Materials License No. SUA–917.

(3) MAP.—The term ‘‘map’’ means the map depicting the

boundaries of NOSR–2, to be kept on file and available for public inspection in the offices of the Department of the Interior.

(4) TRIBE.—The term ‘‘Tribe’’ means the Ute Indian Tribe

of the Uintah and Ouray Indian Reservation.

(5) TRUSTEE.—The term ‘‘Trustee’’ means the Trustee of

the Moab Mill Reclamation Trust.

(b) CONVEYANCE.—(1) Except as provided in paragraph (2) and

subsection (e), all right, title, and interest of the United States in

and to all Federal lands within the exterior boundaries of NOSR–

2 (including surface and mineral rights) are hereby conveyed to the

Tribe in fee simple. The Secretary of Energy shall execute and file

in the appropriate office a deed or other instrument effectuating

the conveyance made by this section.

(2) The conveyance under paragraph (1) does not include the

following:

(A) The portion of the bed of Green River contained entirely within NOSR–2, as depicted on the map.

(B) The land (including surface and mineral rights) to the

west of the Green River within NOSR–2, as depicted on the

map.
Sec. 3405 DISPOAL OF OTHER PETROLEUM RESERVES 618

(C) A 1⁄4 mile scenic easement on the east side of the

Green River within NOSR–2.

(c) CONDITIONS ON CONVEYANCE.—(1) The conveyance under

subsection (b) is subject to valid existing rights in effect on the day

before the date of the enactment of the Floyd D. Spence National

Defense Authorization Act for Fiscal Year 2001.

(2) On completion of the conveyance under subsection (b), the

United States relinquishes all management authority over the conveyed land, including tribal activities conducted on the land.

(3) The land conveyed to the Tribe under subsection (b) shall

not revert to the United States for management in trust status.

(4) The reservation of the easement under subsection (b)(2)(C)

shall not affect the right of the Tribe to use and maintain access

to the Green River through the use of the road within the easement, as depicted on the map.

(5) Each withdrawal that applies to NOSR–2 and that is in effect on the date of the enactment of the Floyd D. Spence National

Defense Authorization Act for Fiscal Year 2001 is revoked to the

extent that the withdrawal applies to NOSR–2.

(6) Notwithstanding that the land conveyed to the Tribe under

subsection (b) shall not be part of the reservation of the Tribe, such

land shall be deemed to be part of the reservation of the Tribe for

the purposes of criminal and civil jurisdiction.

(d) ADMINISTRATION OF UNCONVEYED LAND AND INTERESTS IN

LAND.—(1) The land and interests in land excluded by subparagraphs (A) and (B) of subsection (b)(2) from conveyance under subsection (b) shall be administered by the Secretary of the Interior

in accordance with the Federal Land Policy and Management Act

of 1976 (43 U.S.C. 1701 et seq.).

(2) Not later than three years after the date of the enactment

of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, the Secretary of the Interior shall submit to Congress a land use plan for the management of the land and interests

in land referred to in paragraph (1).

(3) There are authorized to be appropriated to the Secretary of

the Interior such sums as are necessary to carry out this subsection.

(e) ROYALTY.—(1) Notwithstanding the conveyance under subsection (b), the United States retains a nine percent royalty interest in the value of any oil, gas, other hydrocarbons, and all other

minerals that are produced, saved, and sold from the conveyed land

during the period beginning on the date of the conveyance and ending on the date the Secretary of Energy releases the royalty interest under subsection (i).

(2) The royalty payments shall be made by the Tribe or its designee to the Secretary of Energy during the period that the oil, gas,

hydrocarbons, or minerals are being produced, saved, sold, or extracted. The Secretary of Energy shall retain and use the payments

in the manner provided in subsection (i)(3).

(3) The royalty interest retained by the United States under

this subsection does not include any development, production, marketing, and operating expenses.

(4) The Tribe shall submit to the Secretary of Energy and to

Congress an annual report on resource development and other ac-
619 Sec. 3405 DISPOAL OF OTHER PETROLEUM RESERVES

tivities of the Tribe concerning the conveyance under subsection

(b).

(5) Not later than five years after the date of the enactment

of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, and every five years thereafter, the Tribe shall obtain an audit of all resource development activities of the Tribe

concerning the conveyance under subsection (b), as provided under

chapter 75 of title 31, United States Code. The results of each audit

under this paragraph shall be included in the next annual report

submitted under paragraph (4).

(f ) RIVER MANAGEMENT.—(1) The Tribe shall manage, under

Tribal jurisdiction and in accordance with ordinances adopted by

the Tribe, land of the Tribe that is adjacent to, and within 1⁄4 mile

of, the Green River in a manner that—

(A) maintains the protected status of the land; and

(B) is consistent with the government-to-government

agreement and in the memorandum of understanding dated

February 11, 2000, as agreed to by the Tribe and the Secretary

of the Interior.

(2) An ordinance referred to in paragraph (1) shall not impair,

limit, or otherwise restrict the management and use of any land

that is not owned, controlled, or subject to the jurisdiction of the

Tribe.

(3) An ordinance adopted by the Tribe and referenced in the

government-to-government agreement may not be repealed or

amended without the written approval of both the Tribe and the

Secretary of the Interior.

(g) PLANT SPECIES.—(1) In accordance with a government-togovernment agreement between the Tribe and the Secretary of the

Interior, in a manner consistent with levels of legal protection in

effect on the date of the enactment of the Floyd D. Spence National

Defense Authorization Act for Fiscal Year 2001, the Tribe shall

protect, under ordinances adopted by the Tribe, any plant species

that is—

(A) listed as an endangered species or threatened species

under section 4 of the Endangered Species Act of 1973 (16

U.S.C. 1533); and

(B) located or found on the NOSR–2 land conveyed to the

Tribe.

(2) The protection described in paragraph (1) shall be performed solely under tribal jurisdiction.

(h) HORSES.—(1) The Tribe shall manage, protect, and assert

control over any horse not owned by the Tribe or tribal members

that is located or found on the NOSR–2 land conveyed to the Tribe

in a manner that is consistent with Federal law governing the

management, protection, and control of horses in effect on the date

of the enactment of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001.

(2) The management, control, and protection of horses described in paragraph (1) shall be performed solely—

(A) under tribal jurisdiction; and

(B) in accordance with a government-to-government agreement between the Tribe and the Secretary of the Interior.
Sec. 3405 DISPOAL OF OTHER PETROLEUM RESERVES 620

(i) REMEDIAL ACTION AT MOAB SITE.—(1)(A) The Secretary of

Energy shall prepare a plan for remediation, including ground

water restoration, of the Moab site in accordance with title I of the

Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C.

7911 et seq.). The Secretary of Energy shall enter into arrangements with the National Academy of Sciences to obtain the technical advice, assistance, and recommendations of the National

Academy of Sciences in objectively evaluating the costs, benefits,

and risks associated with various remediation alternatives, including removal or treatment of radioactive or other hazardous materials at the site, ground water restoration, and long-term management of residual contaminants. If the Secretary prepares a remediation plan that is not consistent with the recommendations of the

National Academy of Sciences, the Secretary shall submit to Congress a report explaining the reasons for deviation from the National Academy of Sciences’ recommendations.

(B) The remediation plan required by subparagraph (A) shall

be completed not later than one year after the date of the enactment of the Floyd D. Spence National Defense Authorization Act

for Fiscal Year 2001, and the Secretary of Energy shall commence

remedial action at the Moab site as soon as practicable after the

completion of the plan.

(C) The license for the materials at the Moab site issued by the

Nuclear Regulatory Commission shall terminate one year after the

date of the enactment of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, unless the Secretary of Energy

determines that the license may be terminated earlier. Until the license is terminated, the Trustee, subject to the availability of funds

appropriated specifically for a purpose described in clauses (i)

through (iii) or made available by the Trustee from the Moab Mill

Reclamation Trust, may carry out—

(i) interim measures to reduce or eliminate localized high

ammonia concentrations in the Colorado River, identified by

the United States Geological Survey in a report dated March

27, 2000;

(ii) activities to dewater the mill tailings at the Moab site;

and

(iii) other activities related to the Moab site, subject to the

authority of the Nuclear Regulatory Commission and in consultation with the Secretary of Energy.

(D) As part of the remediation plan for the Moab site required

by subparagraph (A), the Secretary of Energy shall develop, in consultation with the Trustee, the Nuclear Regulatory Commission,

and the State of Utah, an efficient and legal means for transferring

all responsibilities and title to the Moab site and all the materials

therein from the Trustee to the Department of Energy.

(2) The Secretary of Energy shall limit the amounts expended

in carrying out the remedial action under paragraph (1) to—

(A) amounts specifically appropriated for the remedial action in an appropriation Act; and

(B) other amounts made available for the remedial action

under this subsection.

(3)(A) The royalty payments received by the Secretary of Energy under subsection (e) shall be available to the Secretary, with-
621 Sec. 3406 DISPOAL OF OTHER PETROLEUM RESERVES

out further appropriation, to carry out the remedial action under

paragraph (1) until such time as the Secretary determines that all

costs incurred by the United States to carry out the remedial action

(other than costs associated with long-term monitoring) have been

paid.

(B) Upon making the determination referred to in subparagraph (A), the Secretary of Energy shall transfer all remaining royalty amounts to the general fund of the Treasury and release to the

Tribe the royalty interest retained by the United States under subsection (e).

(4)(A) Funds made available to the Department of Energy for

national security activities shall not be used to carry out the remedial action under paragraph (1), except that the Secretary of Energy may use such funds for program direction directly related to

the remedial action.

(B) There are authorized to be appropriated to the Secretary

of Energy to carry out the remedial action under paragraph (1)

such sums as are necessary.

(5) If the Moab site is sold after the date on which the Secretary of Energy completes the remedial action under paragraph

(1), the seller shall pay to the Secretary of Energy, for deposit in

the general fund of the Treasury, the portion of the sale price that

the Secretary determines resulted from the enhancement of the

value of the Moab site as a result of the remedial action. The enhanced value of the Moab site shall be equal to the difference

between—

(A) the fair market value of the Moab site on the date of

the enactment of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, based on information

available on that date; and

(B) the fair market value of the Moab site, as appraised on

completion of the remedial action.

SEC. 3406. ø10 U.S.C. 7420 note¿ ADMINISTRATION.

(a) PROTECTION OF EXISTING RIGHTS.—At the discretion of the

Secretary of Energy, the disposal of property under this title shall

be subject to any contract related to the United States ownership

interest in the property in effect at the time of disposal, including

any lease agreement pertaining to the United States interest in

Naval Petroleum Reserve Numbered 2.

(b) DEPOSIT OF RECEIPTS.—Notwithstanding any other law, all

monies received by the United States from the disposal of property

under this title, including any monies received from a lease entered

into under this title, shall be deposited in the general fund of the

Treasury.

(c) TREATMENT OF ROYALTIES.—Any petroleum accruing to the

United States as royalty from any lease of lands transferred under

this title shall be delivered to the United States, or shall be paid

for in money, as the Secretary of the Interior may elect.

(d) ELEMENTS OF LEASE.—A lease under this title may provide

for the exploration for, and development and production of, petroleum, other than petroleum in the form of oil shale.
Sec. 3406 DISPOAL OF OTHER PETROLEUM RESERVES 622

(e) WAIVER OF REQUIREMENTS REGARDING CONSULTATION AND

APPROVAL.—Section 7431 of title 10, United States Code, shall not

apply to the disposal of property under this title.

(f ) OIL SHALE RESERVE NUMBERED 2.—This section does not

apply to the transfer of Oil Shale Reserve Numbered 2 under section 3405.
623

7. RELATIONS WITH NATO COUNTRIES AND OTHER

NATIONS

(Including Provisions Relating to Cooperative Threat Reduction with

States of the Former Soviet Union)

a. Annual Report on NATO Prague Capabilities

Commitment and NATO Response Force

(Section 1231 of the National Defense Authorization for Fiscal Year 2004 (Public

Law 108–136, approved Nov. 24, 2003))

SEC. 1231. ø22 U.S.C. 1928 note¿ ANNUAL REPORT ON THE NATO

PRAGUE CAPABILITIES COMMITMENT AND THE NATO RESPONSE FORCE.

(a) FINDINGS.—Congress makes the following findings:

(1) At the meeting of the North Atlantic Council held in

Prague in November 2002, the heads of states and governments of the North Atlantic Treaty Organization (NATO)

launched a Prague Capabilities Commitment and decided to

create a NATO Response Force.

(2) The Prague Capabilities Commitment is part of the

continuing NATO effort to improve and develop new military

capabilities for modern warfare in a high-threat environment.

As part of this commitment, individual NATO allies have made

firm and specific political commitments to improve their capabilities in the areas of—

(A) chemical, biological, radiological, and nuclear defense;

(B) intelligence, surveillance, and target acquisition;

(C) air-to-ground surveillance;

(D) command, control, and communications;

(E) combat effectiveness, including precision guided

munitions and suppression of enemy air defenses;

(F) strategic air and sea lift;

(G) air-to-air refueling; and

(H) deployable combat support and combat service

support units.

(3) The NATO Response Force is envisioned to be a technologically advanced, flexible, deployable, interoperable, and sustainable force that includes land, sea, and air elements ready

to move quickly to wherever needed, as determined by the

North Atlantic Council. The NATO Response Force is also intended to be a catalyst for focusing and promoting improvements in NATO’s military capabilities. It is expected to have

initial operational capability by October 2004, and full operational capability by October 2006.

(b) ANNUAL REPORT.—(1) Not later than January 31 of each

year through 2008, the Secretary of Defense shall submit to the
Sec. 1231 RELATIONS WITH FOREIGN COUNTRIES 624

congressional committees specified in paragraph (5) a report, to be

prepared in consultation with the Secretary of State, on implementation of the Prague Capabilities Commitment and development of

the NATO Response Force by the member nations of the North Atlantic Treaty Organization (NATO).

(2) The annual report under this subsection shall include the

following matters:

(A) A description of the actions taken by NATO as a whole

and by each member nation of NATO other than the United

States to further the Prague Capabilities Commitment, including any actions taken to improve capability shortfalls in the

areas identified for improvement.

(B) A description of the actions taken by NATO as a whole

and by each member nation of NATO, including the United

States, to create the NATO Response Force.

(C) A discussion of the relationship between NATO’s efforts to improve capabilities through the Prague Capabilities

Commitment and those of the European Union to enhance European capabilities through the European Capabilities Action

Plan, including the extent to which they are mutually reinforcing.

(D) A discussion of NATO decisionmaking on the implementation of the Prague Capabilities Commitment and the development of the NATO Response Force, including—

(i) an assessment of whether the Prague Capabilities

Commitment and the NATO Response Force are the sole

jurisdiction of the Defense Planning Committee, the North

Atlantic Council, or the Military Committee;

(ii) a description of the circumstances which led to the

defense, military, security, and nuclear decisions of NATO

on matters such as the Prague Capabilities Commitment

and the NATO Response Force being made in bodies other

than the Defense Planning Committee;

(iii) a description of the extent to which any member

that does not participate in the integrated military structure of NATO contributes to each of the component committees of NATO, including any and all committees relevant to the Prague Capabilities Commitment and the

NATO Response Force;

(iv) a description of the extent to which any member

that does not participate in the integrated military structure of NATO participates in deliberations and decisions of

NATO on resource policy, contribution ceilings, infrastructure, force structure, modernization, threat assessments,

training, exercises, deployments, and other issues related

to the Prague Capabilities Commitment or the NATO Response Force;

(v) a description and assessment of the impediments,

if any, that would preclude or limit NATO from conducting

deliberations and making decisions on matters such as the

Prague Capabilities Commitment or the NATO Response

Force solely in the Defense Planning Committee; and

(vi) the recommendations of the Secretary of Defense

on streamlining defense, military, and security decision-
625 FY04 COOPERATIVE THREAT REDUCTION

making within NATO relating to the Prague Capabilities

Commitment, the NATO Response Force, and other matters, including an assessment of the feasibility and advisability of the greater utilization of the Defense Planning

Committee for such purposes.

(3) In the case of a report under this subsection after the first

such report, the information submitted in such report under any of

clauses (i) through (vi) of subparagraph (D) of paragraph (2) may

consist solely of an update of any information previously submitted

under that clause in a preceding report under this subsection.

(4) Each report under this subsection shall be submitted in unclassified form, but may also be submitted in classified form if necessary.

(5) The committees specified in this paragraph are—

(A) the Committee on Armed Services and the Committee

on Foreign Relations of the Senate; and

(B) the Committee on Armed Services and the Committee

on International Relations of the House of Representatives.

b. Title XIII of the National Defense Authorization for Fiscal

Year 2004

(Public Law 108–136, approved Nov. 24, 2003)

TITLE XIII—COOPERATIVE THREAT REDUCTION WITH

STATES OF THE FORMER SOVIET UNION

SEC. 1301. ø22 U.S.C. 5960 note¿ SPECIFICATION OF COOPERATIVE

THREAT REDUCTION PROGRAMS AND FUNDS.

(a) SPECIFICATION OF CTR PROGRAMS.—For purposes of section

301 and other provisions of this Act, Cooperative Threat Reduction

programs are the programs specified in section 1501(b) of the National Defense Authorization Act for Fiscal Year 1997 (Public Law

104–201; 110 Stat. 2731; 50 U.S.C. 2362 note).

(b) FISCAL YEAR 2004 COOPERATIVE THREAT REDUCTION FUNDS

DEFINED.—As used in this title, the term ‘‘fiscal year 2004 Cooperative Threat Reduction funds’’ means the funds appropriated pursuant to the authorization of appropriations in section 301 for Cooperative Threat Reduction programs.

(c) AVAILABILITY OF FUNDS.—Funds appropriated pursuant to

the authorization of appropriations in section 301 for Cooperative

Threat Reduction programs shall be available for obligation for

three fiscal years.

SEC. 1302. FUNDING ALLOCATIONS.

(a) FUNDING FOR SPECIFIC PURPOSES.—Of the $450,800,000 authorized to be appropriated to the Department of Defense for fiscal

year 2004 in section 301(19) for Cooperative Threat Reduction programs, the following amounts may be obligated for the purposes

specified:

(1) For strategic offensive arms elimination in Russia,

$57,600,000.

(2) For strategic nuclear arms elimination in Ukraine,

$3,900,000.
FY04 COOPERATIVE THREAT REDUCTION 626

(3) For nuclear weapons transportation security in Russia, $23,200,000.

(4) For nuclear weapons storage security in Russia, $48,000,000.

(5) For activities designated as Other Assessments/Admin- istrative Support, $13,100,000. (6) For defense and military contacts, $11,100,000.

(7) For chemical weapons destruction in Russia, $200,300,000.

(8) For biological weapons proliferation prevention in the former Soviet Union, $54,200,000.

(9) For weapons of mass destruction proliferation preven- tion in the states of the former Soviet Union, $39,400,000.

(b) REPORT ON OBLIGATION OR EXPENDITURE OF FUNDS FOR

OTHER PURPOSES.—No fiscal year 2004 Cooperative Threat Reduction funds may be obligated or expended for a purpose other than

a purpose listed in paragraphs (1) through (9) of subsection (a)

until 30 days after the date that the Secretary of Defense submits

to Congress a report on the purpose for which the funds will be obligated or expended and the amount of funds to be obligated or expended. Nothing in the preceding sentence shall be construed as

authorizing the obligation or expenditure of fiscal year 2004 Cooperative Threat Reduction funds for a purpose for which the obligation or expenditure of such funds is specifically prohibited under

this title or any other provision of law.

(c) LIMITED AUTHORITY TO VARY INDIVIDUAL AMOUNTS.—(1)

Subject to paragraphs (2) and (3), in any case in which the Secretary of Defense determines that it is necessary to do so in the national interest, the Secretary may obligate amounts appropriated

for fiscal year 2004 for a purpose listed in any of the paragraphs

in subsection (a) in excess of the specific amount authorized for

that purpose.

(2) An obligation of funds for a purpose stated in any of the

paragraphs in subsection (a) in excess of the specific amount authorized for such purpose may be made using the authority provided in paragraph (1) only after—

(A) the Secretary submits to Congress notification of the

intent to do so together with a complete discussion of the justification for doing so; and

(B) 15 days have elapsed following the date of the notification.

(3) The Secretary may not, under the authority provided in

paragraph (1), obligate amounts for a purpose stated in any of

paragraphs (5) through (8) of subsection (a) in excess of 125 percent

of the specific amount authorized for such purpose.

SEC. 1303. ø22 U.S.C. 5960¿ LIMITATION ON USE OF FUNDS UNTIL CERTAIN PERMITS OBTAINED.

(a) IN GENERAL.—The Secretary of Defense shall seek to obtain

all the permits required to complete each phase of construction of

a project under Cooperative Threat Reduction programs before obligating significant amounts of funding for that phase of the project.

(b) USE OF FUNDS FOR NEW CONSTRUCTION PROJECTS.—Except

as provided in subsection (e), with respect to a new construction

project to be carried out by the Department of Defense under Coop-
627 FY04 COOPERATIVE THREAT REDUCTION

erative Threat Reduction programs, not more than 40 percent of

the total costs of the project may be obligated from Cooperative

Threat Reduction funds for any fiscal year until the Secretary of

Defense—

(1) determines the number and type of permits that may

be required for the lifetime of the project in the proposed location or locations of the project; and

(2) obtains from the State in which the project is to be located any permits that may be required to begin construction.

(c) IDENTIFICATION OF REQUIRED PERMITS FOR ONGOING INCOMPLETE CONSTRUCTION PROJECTS.—With respect to an incomplete construction project carried out by the Department of Defense

under Cooperative Threat Reduction programs, the Secretary shall

identify all the permits that are required for the lifetime of the

project not later than 120 days after the date of the enactment of

this Act.

(d) USE OF FUNDS FOR CERTAIN INCOMPLETE CONSTRUCTION

PROJECTS.—Except as provided in subsection (e), with respect to an

incomplete construction project carried out by the Department of

Defense under Cooperative Threat Reduction programs for which

construction has not yet commenced as of the date of the enactment of this Act, not more than 40 percent of the total costs of the

project may be obligated from Cooperative Threat Reduction funds

for any fiscal year until the Secretary obtains from the State in

which the project is located the permits required to commence construction on the project.

(e) EXCEPTION TO LIMITATIONS ON USE OF FUNDS.—The limitation in subsection (b) or (d) on the obligation of funds for a construction project otherwise covered by such subsection shall not

apply with respect to the obligation of funds for a particular project

if the Secretary—

(1) determines that it is necessary in the national interest

to obligate funds for such project; and

(2) submits to the congressional defense committees a notification of the intent to obligate funds for such project, together

with a complete discussion of the justification for doing so.

(f) DEFINITIONS.—In this section, with respect to a project

under Cooperative Threat Reduction programs:

(1) INCOMPLETE CONSTRUCTION PROJECT.—The term ‘‘incomplete construction project’’ means a construction project for

which funds have been obligated or expended before the date

of the enactment of this Act and which is not completed as of

such date.

(2) NEW CONSTRUCTION PROJECT.—The term ‘‘new construction project’’ means a construction project for which no

funds have been obligated or expended as of the date of the enactment of this Act.

(3) PERMIT.—The term ‘‘permit’’ means any local or national permit for development, general construction, environmental, land use, or other purposes that is required for purposes of major construction in a state of the former Soviet

Union in which the construction project is being or is proposed

to be carried out.
FY04 COOPERATIVE THREAT REDUCTION 628

SEC. 1304. LIMITATION ON USE OF FUNDS FOR BIOLOGICAL RESEARCH IN THE FORMER SOVIET UNION.

(a) LIMITATION ON USE OF FUNDS.—Except as provided in subsection (b), none of the funds authorized to be appropriated pursuant to section 1302 for biological weapons proliferation prevention

may be obligated to begin any collaborative biodefense research or

bioattack early warning and preparedness project under a Cooperative Threat Reduction program at a facility in a state of the former

Soviet Union until the Secretary of Defense notifies Congress that

the Secretary—

(1) has determined, through access to the facility, that no

offensive biological weapons research prohibited by international law is being conducted at the facility; and

(2) has determined that appropriate security measures

have begun to be, or will be, put in place at the facility to prevent theft of dangerous pathogens from the facility.

(b) AVAILABILITY OF FUNDS FOR DETERMINATIONS.—Of the

funds referred to in subsection (a) that are available for projects referred to in that subsection, up to 25 percent of such funds may be

obligated and expended for purposes of making determinations referred to in that subsection.

(c) FACILITY DEFINED.—In this section, the term ‘‘facility’’

means the buildings and areas at a location in which Cooperative

Threat Reduction program work is actually being conducted.

SEC. 1305. ø22 U.S.C. 5961¿ REQUIREMENT FOR ON-SITE MANAGERS.

(a) ON-SITE MANAGER REQUIREMENT.—Before obligating any

Cooperative Threat Reduction funds for a project described in subsection (b), the Secretary of Defense shall appoint one on-site manager for that project. The manager shall be appointed from among

employees of the Federal Government.

(b) PROJECTS COVERED.—Subsection (a) applies to a project—

(1) to be located in a state of the former Soviet Union;

(2) which involves dismantlement, destruction, or storage

facilities, or construction of a facility; and

(3) with respect to which the total contribution by the Department of Defense is expected to exceed $50,000,000.

(c) DUTIES OF ON-SITE MANAGER.—The on-site manager appointed under subsection (a) shall—

(1) develop, in cooperation with representatives from governments of countries participating in the project, a list of

those steps or activities critical to achieving the project’s disarmament or nonproliferation goals;

(2) establish a schedule for completing those steps or activities;

(3) meet with all participants to seek assurances that

those steps or activities are being completed on schedule; and

(4) suspend United States participation in a project when

a non-United States participant fails to complete a scheduled

step or activity on time, unless directed by the Secretary of Defense to resume United States participation.

(d) AUTHORITY TO MANAGE MORE THAN ONE PROJECT.—(1)

Subject to paragraph (2), an employee of the Federal Government

may serve as on-site manager for more than one project, including

projects at different locations.
629 FY04 COOPERATIVE THREAT REDUCTION

(2) If such an employee serves as on-site manager for more

than one project in a fiscal year, the total cost of the projects for

that fiscal year may not exceed $150,000,000.

(e) STEPS OR ACTIVITIES.—Steps or activities referred to in subsection (c)(1) are those activities that, if not completed, will prevent

a project from achieving its disarmament or nonproliferation goals,

including, at a minimum, the following:

(1) Identification and acquisition of permits (as defined in

section 1303).

(2) Verification that the items, substances, or capabilities

to be dismantled, secured, or otherwise modified are available

for dismantlement, securing, or modification.

(3) Timely provision of financial, personnel, management,

transportation, and other resources.

(f) NOTIFICATION TO CONGRESS.—In any case in which the Secretary of Defense directs an on-site manager to resume United

States participation in a project under subsection (c)(4), the Secretary shall concurrently notify Congress of such direction.

(g) EFFECTIVE DATE.—This section shall take effect six months

after the date of the enactment of this Act.

SEC. 1306. TEMPORARY AUTHORITY TO WAIVE LIMITATION ON FUNDING FOR CHEMICAL WEAPONS DESTRUCTION FACILITY IN

RUSSIA.

(a) TEMPORARY AUTHORITY.—The conditions described in section 1305 of the National Defense Authorization Act for Fiscal Year

2000 (Public Law 106–65; 22 U.S.C. 5952 note) shall not apply to

the obligation and expenditure of funds available for obligation

during fiscal year 2004 for the planning, design, or construction of

a chemical weapons destruction facility in Russia if the President

submits to Congress a written certification that includes—

(1) a statement as to why the waiver of the conditions is

important to the national security interests of the United

States;

(2) a full and complete justification for the waiver of the

conditions; and

(3) a plan to promote a full and accurate disclosure by

Russia regarding the size, content, status, and location of its

chemical weapons stockpile.

(b) EXPIRATION.—The authority in subsection (a) shall expire

on September 30, 2004.

SEC. 1307. ø22 U.S.C. 5962¿ ANNUAL CERTIFICATIONS ON USE OF FACILITIES BEING CONSTRUCTED FOR COOPERATIVE

THREAT REDUCTION PROJECTS OR ACTIVITIES.

(a) CERTIFICATION ON USE OF FACILITIES BEING CONSTRUCTED.—Not later than the first Monday of February each year,

the Secretary of Defense shall submit to the congressional defense

committees a certification for each facility for a Cooperative Threat

Reduction project or activity for which construction occurred during

the preceding fiscal year on matters as follows:

(1) Whether or not such facility will be used for its intended purpose by the government of the state of the former

Soviet Union in which the facility is constructed.

(2) Whether or not the government of such state remains

committed to the use of such facility for its intended purpose.
FY04 COOPERATIVE THREAT REDUCTION 630

(3) Whether those actions needed to ensure security at the

facility, including secure transportation of any materials, substances, or weapons to, from, or within the facility, have been

taken.

(b) APPLICABILITY.—Subsection (a) shall apply to—

(1) any facility the construction of which commences on or

after the date of the enactment of this Act; and

(2) any facility the construction of which is ongoing as of

that date.

SEC. 1308. ø22 U.S.C. 5963¿ AUTHORITY TO USE COOPERATIVE THREAT

REDUCTION FUNDS OUTSIDE THE FORMER SOVIET

UNION.

(a) AUTHORITY.—Subject to the provisions of this section, the

President may obligate and expend Cooperative Threat Reduction

funds for a fiscal year, and any Cooperative Threat Reduction

funds for a fiscal year before such fiscal year that remain available

for obligation, for a proliferation threat reduction project or activity

outside the states of the former Soviet Union if the President determines each of the following:

(1) That such project or activity will—

(A)(i) assist the United States in the resolution of a

critical emerging proliferation threat; or

(ii) permit the United States to take advantage of opportunities to achieve long-standing nonproliferation goals;

and

(B) be completed in a short period of time.

(2) That the Department of Defense is the entity of the

Federal Government that is most capable of carrying out such

project or activity.

(b) SCOPE OF AUTHORITY.—The authority in subsection (a) to

obligate and expend funds for a project or activity includes authority to provide equipment, goods, and services for such project or activity utilizing such funds, but does not include authority to provide cash directly to such project or activity.

(c) LIMITATION ON TOTAL AMOUNT OF OBLIGATION.—The

amount that may be obligated in a fiscal year under the authority

in subsection (a) may not exceed $50,000,000.

(d) LIMITATION ON AVAILABILITY OF FUNDS.—(1) The President

may not obligate funds for a project or activity under the authority

in subsection (a) until the President makes each determination

specified in that subsection with respect to such project or activity.

(2) Not later than 10 days after obligating funds under the authority in subsection (a) for a project or activity, the President shall

notify Congress in writing of the determinations made under paragraph (1) with respect to such project or activity, together with—

(A) a justification for such determinations; and

(B) a description of the scope and duration of such project

or activity.

(e) ADDITIONAL LIMITATIONS AND REQUIREMENTS.—Except as

otherwise provided in subsections (a) and (b), the exercise of the

authority in subsection (a) shall be subject to any requirement or

limitation under another provision of law as follows:
631 FY03 COOPERATIVE THREAT REDUCTION

(1) Any requirement for prior notice or other reports to

Congress on the use of Cooperative Threat Reduction funds or

on Cooperative Threat Reduction projects or activities.

(2) Any limitation on the obligation or expenditure of Cooperative Threat Reduction funds.

(3) Any limitation on Cooperative Threat Reduction

projects or activities.

c. Title XIII of the Bob Stump National Defense

Authorization for Fiscal Year 2003

(Public Law 107–314, approved Dec. 2, 2002)

TITLE XIII—COOPERATIVE THREAT REDUCTION WITH

STATES OF THE FORMER SOVIET UNION

* * * * * * *

SEC. 1305. ø22 U.S.C. 5952 note¿ PROHIBITION AGAINST USE OF FUNDS

FOR SECOND WING OF FISSILE MATERIAL STORAGE FACILITY.

No funds authorized to be appropriated for Cooperative Threat

Reduction programs for any fiscal year may be used for the design,

planning, or construction of a second wing for a storage facility for

Russian fissile material.

SEC. 1306. ø22 U.S.C. 5952 note¿ LIMITED WAIVER OF RESTRICTIONS ON

USE OF FUNDS FOR THREAT REDUCTION IN STATES OF

THE FORMER SOVIET UNION.

(a) AUTHORITY TO WAIVE RESTRICTIONS AND ELIGIBILITY REQUIREMENTS.—If the President submits the certification and report

described in subsection (b) with respect to an independent state of

the former Soviet Union for a fiscal year—

(1) the restrictions in subsection (d) of section 1203 of the

Cooperative Threat Reduction Act of 1993 (22 U.S.C. 5952)

shall cease to apply, and funds may be obligated and expended

under that section for assistance, to that state during that fiscal year; and

(2) funds may be obligated and expended during that fiscal

year under section 502 of the FREEDOM Support Act (22

U.S.C. 5852) for assistance or other programs and activities for

that state even if that state has not met one or more of the

requirements for eligibility under paragraphs (1) through (4) of

that section.

(b) CERTIFICATION AND REPORT.—(1) The certification and report referred to in subsection (a) are a written certification submitted by the President to Congress that the waiver of the restrictions and requirements described in paragraphs (1) and (2) of that

subsection during such fiscal year is important to the national security interests of the United States, together with a report containing the following:

(A) A description of the activity or activities that prevent

the President from certifying that the state is committed to the

matters set forth in the provisions of law specified in paragraphs (1) and (2) of subsection (a) in such fiscal year.
Sec. 3151 COOPERATIVE THREAT REDUCTION 632

(B) An explanation of why the waiver is important to the

national security interests of the United States.

(C) A description of the strategy, plan, or policy of the

President for promoting the commitment of the state to, and

compliance by the state with, such matters, notwithstanding

the waiver.

(2) The matter included in the report under paragraph (1) shall

be submitted in unclassified form, but may include a classified

annex.

(c) FISCAL YEARS COVERED.—The authority under subsection

(a) shall apply only with respect to fiscal years 2003, 2004, and

2005.

(d) EXPIRATION OF AUTHORITY.—The authority under subsection (a) shall expire on September 30, 2005.

(e) øOmitted-Amendment¿

d. Transfer of Department of Defense’s Cooperative Threat

Reduction Program

(Section 3151 of the Bob Stump National Defense Authorization for Fiscal Year 2003

(Public Law 107–314, approved Dec. 2, 2002))

SEC. 3151. ø22 U.S.C. 5952 note¿ TRANSFER TO NATIONAL NUCLEAR SECURITY ADMINISTRATION OF DEPARTMENT OF DEFENSE’S COOPERATIVE THREAT REDUCTION PROGRAM

RELATING TO ELIMINATION OF WEAPONS GRADE PLUTONIUM PRODUCTION IN RUSSIA.

(a) TRANSFER OF PROGRAM.—There are hereby transferred to

the Administrator for Nuclear Security the following:

(1) The program, within the Cooperative Threat Reduction

program of the Department of Defense, relating to the elimination of weapons grade plutonium production in Russia.

(2) All functions, powers, duties, and activities of that program performed before the date of the enactment of this Act

by the Department of Defense.

(b) TRANSFER OF ASSETS.—(1) Notwithstanding any restriction

or limitation in law on the availability of Cooperative Threat Reduction funds specified in paragraph (2), so much of the property,

records, and unexpended balances of appropriations, allocations,

and other funds employed, used, held, available, or to be made

available in connection with the program transferred by subsection

(a) are transferred to the Administrator for use in connection with

the program transferred.

(2) The Cooperative Threat Reduction funds specified in this

paragraph are the following:

(A) Fiscal year 2002 Cooperative Threat Reduction funds,

as specified in section 1301(b) of the National Defense Authorization Act for Fiscal Year 2002 (Public Law 107–107; 115

Stat. 1254; 22 U.S.C. 5952 note).

(B) Fiscal year 2001 Cooperative Threat Reduction funds,

as specified in section 1301(b) of the Floyd D. Spence National

Defense Authorization Act for Fiscal Year 2001 (as enacted

into law by Public Law 106–398; 114 Stat. 1654A–339; 22

U.S.C. 5959 note).
633 Sec. 3151 COOPERATIVE THREAT REDUCTION

(C) Fiscal year 2000 Cooperative Threat Reduction funds,

as specified in section 1301(b) of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106–65; 113 Stat.

792; 22 U.S.C. 5952 note).

(c) AVAILABILITY OF TRANSFERRED FUNDS.—(1) Notwithstanding any restriction or limitation in law on the availability of

Cooperative Threat Reduction funds specified in subsection (b)(2),

the Cooperative Threat Reduction funds transferred under subsection (b) for the program referred to in subsection (a) shall be

available for activities as follows:

(A) To design and construct, refurbish, or both, fossil fuel

energy plants in Russia that provide alternative sources of energy to the energy plants in Russia that produce weapons

grade plutonium.

(B) To carry out limited safety upgrades of not more than

three energy plants in Russia that produce weapons grade plutonium, provided that such upgrades do not extend the life of

those plants.

(2) Amounts available under paragraph (1) for activities referred to in that paragraph shall remain available for obligation for

three fiscal years.

(d) LIMITATION.—(1) Of the amounts authorized to be appropriated by this title or any other Act for the program referred to

in subsection (a), the Administrator for Nuclear Security may not

obligate any funds for construction, or obligate or expend more

than $100,000,000 for that program, until 30 days after the later

of—

(A) the date on which the Administrator submits to the

congressional defense committees, the Committee on International Relations of the House of Representatives, and the

Committee on Foreign Relations of the Senate, a copy of an

agreement or agreements entered into between the United

States Government and the Government of the Russian Federation to shut down the three plutonium-producing reactors in

Russia as specified under paragraph (2); and

(B) the date on which the Administrator submits to the

committees specified in subparagraph (A) a report on a plan to

achieve international participation in the program referred to

in subsection (a), including cost sharing.

(2) The agreement (or agreements) under paragraph (1)(A)

shall contain—

(A) a commitment to shut down the three plutonium-producing reactors;

(B) the date on which each such reactor will be shut down;

(C) a schedule and milestones for each such reactor to complete the shutdown of such reactor by the date specified under

subparagraph (B);

(D) a schedule and milestones for refurbishment or construction of fossil fuel energy plants to be undertaken by the

Government of the Russian Federation in support of the program;

(E) an arrangement for access to sites and facilities necessary to meet such schedules and milestones;
FY01 RELATIONS WITH FOREIGN COUNTRIES 634

1Section 1213 was enacted without a subsection (c).

(F) an arrangement for audit and examination procedures

in order to evaluate progress in meeting such schedules and

milestones; and

(G) any cost sharing arrangements between the United

States Government and the Government of the Russian Federation in undertaking activities under such agreement (or

agreements).

e. Floyd D. Spence National Defense Authorization Act for

Fiscal Year 2001

(as enacted by Public Law 106–398, approved Oct. 30, 2000)

TITLE XII—MATTERS RELATING TO OTHER NATIONS

* * * * * * *

Subtitle B—Matters Relating to the Balkans

* * * * * * *

SEC. 1213. SEMIANNUAL REPORT ON KOSOVO PEACEKEEPING.

(a) REQUIREMENT FOR PERIODIC REPORT.—The President shall

submit to the specified congressional committees a semiannual report on the contributions of European nations and organizations to

the peacekeeping operations in Kosovo. The first such report shall

be submitted not later than December 1, 2000.

(b) CONTENT OF REPORT.—Each report shall contain detailed

information on the following:

(1) The commitments and pledges made by the European

Commission, the member nations of the European Union, and

the European member nations of the North Atlantic Treaty Organization for—

(A) reconstruction assistance in Kosovo;

(B) humanitarian assistance in Kosovo;

(C) the Kosovo Consolidated Budget;

(D) police (including special police) for the United Nations international police force for Kosovo; and

(E) military personnel for peacekeeping operations in

Kosovo.

(2) The amount of the assistance that has been provided

in each category, and the number of police and military personnel that have been deployed to Kosovo, by each organization or nation referred to in paragraph (1).

(3) The full range of commitments and responsibilities that

have been undertaken for Kosovo by the United Nations, the

European Union, and the Organization for Security and Cooperation in Europe (OSCE), the progress made by those organizations in fulfilling those commitments and responsibilities,

an assessment of the tasks that remain to be accomplished,

and an anticipated schedule for completing those tasks.

(d) 1 SPECIFIED CONGRESSIONAL COMMITTEES.—In the section,

the term ‘‘specified congressional committees’’ means—
635 FY01 RELATIONS WITH FOREIGN COUNTRIES

(1) the Committee on Armed Services, the Committee on

Foreign Relations, and the Committee on Appropriations of the

Senate; and

(2) the Committee on Armed Services, the Committee on

International Relations, and the Committee on Appropriations

of the House of Representatives.

Subtitle C—North Atlantic Treaty Organization and United

States Forces in Europe

SEC. 1221. ø22 U.S.C. 1928 note¿ NATO FAIR BURDENSHARING.

(a) REPORT ON COSTS OF OPERATION ALLIED FORCE.—The Secretary of Defense shall submit to the Committee on Armed Services

of the Senate and the Committee on Armed Services of the House

of Representatives a report on the costs to the United States of the

78-day air campaign known as Operation Allied Force conducted

against the Federal Republic of Yugoslavia during the period from

March 24 through June 9, 1999. The report shall include the following:

(1) The costs of ordnance expended, fuel consumed, and

personnel.

(2) The estimated cost of the reduced service life of United

States aircraft and other systems participating in the operation.

(b) REPORT ON BURDENSHARING OF FUTURE NATO OPERATIONS.—Whenever the North Atlantic Treaty Organization undertakes a military operation, the Secretary of Defense shall submit

to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report

describing—

(1) the contributions to that operation made by each of the

member nations of the North Atlantic Treaty Organization

during that operation; and

(2) the contributions that each of the member nations of

the North Atlantic Treaty Organization are making or have

pledged to make during any follow-on operation.

(c) TIME FOR SUBMISSION OF REPORT.—A report under subsection (b) shall be submitted not later than 90 days after the completion of the military operation.

(d) APPLICABILITY.—Subsection (b) shall apply only with respect to military operations begun after the date of the enactment

of this Act.

* * * * * * *

Subtitle D—Other Matters

SEC. 1231. JOINT DATA EXCHANGE CENTER WITH RUSSIAN FEDERATION ON EARLY WARNING SYSTEMS AND NOTIFICATION

OF BALLISTIC MISSILE LAUNCHES.

(a) AUTHORITY.—The Secretary of Defense is authorized to establish, in conjunction with the Government of the Russian Federation, a United States-Russian Federation joint center for the exchange of data from systems to provide early warning of launches

of ballistic missiles and for notification of launches of such missiles.
FY01 RELATIONS WITH FOREIGN COUNTRIES 636

(b) SPECIFIC ACTIONS.—The actions that the Secretary undertakes for the establishment of the center may include—

(1) subject to subsection (d), participating in the renovation

of a mutually agreed upon facility to be made available by the

Russian Federation; and

(2) the furnishing of such equipment and supplies as may

be necessary to begin the operation of the center.

(c) REPORT REQUIRED.—(1) Not later than 30 days after the

date of the enactment of this Act, the Secretary shall submit to the

Committee on Armed Services of the Senate and the Committee on

Armed Services of the House of Representatives a report on plans

for the joint data exchange center.

(2) The report shall include the following:

(A) A detailed explanation as to why the particular facility

intended to house the center was chosen.

(B) An estimate of the total cost of renovating that facility

for use by the center.

(C) A description of the manner by which the United

States proposes to meet its share of the costs of such renovation.

(d) LIMITATION.—(1) The Secretary of Defense may participate

under subsection (b) in the renovation of the facility identified in

the report under subsection (c) only if the United States and the

Russian Federation enter into a cost-sharing arrangement that provides for an equal sharing between the two nations of the cost of

establishing the center, including the costs of renovating and operating the facility.

(2) Not more than $4,000,000 of funds appropriated for fiscal

year 2001 may be obligated or expended after the date of the enactment of this Act by the Secretary of Defense for the renovation of

such facility until 30 days after the date on which the Secretary

submits to the Committee on Armed Services of the Senate and the

Committee on Armed Services of the House of Representatives a

copy of a written agreement between the United States and the

Russian Federation that provides details of the cost-sharing arrangement specified in paragraph (1), in accordance with the

Memorandum of Agreement between the two nations signed in

Moscow in June 2000.

* * * * * * *

SEC. 1238. ø22 U.S.C. 7002¿ UNITED STATES-CHINA ECONOMIC AND SECURITY REVIEW COMMISSION.

(a) PURPOSES.—The purposes of this section are as follows:

(1) To establish the United States-China Economic and Security Review Commission to review the national security implications of trade and economic ties between the United

States and the People’s Republic of China.

(2) To facilitate the assumption by the United StatesChina Economic and Security Review Commission of its duties

regarding the review referred to in paragraph (1) by providing

for the transfer to that Commission of staff, materials, and infrastructure (including leased premises) of the Trade Deficit

Review Commission that are appropriate for the review upon
637 FY01 RELATIONS WITH FOREIGN COUNTRIES

the submittal of the final report of the Trade Deficit Review

Commission.

(b) ESTABLISHMENT OF UNITED STATES-CHINA ECONOMIC AND

SECURITY REVIEW COMMISSION.— (1) IN GENERAL.—There is hereby established a commission to be known as the United States-China Economic and Security Review Commission (in this section referred to as the

‘‘Commission’’).

(2) PURPOSE.—The purpose of the Commission is to monitor, investigate, and report to Congress on the national security implications of the bilateral trade and economic relationship between the United States and the People’s Republic of

China.

(3) MEMBERSHIP.—The Commission shall be composed of

12 members, who shall be appointed in the same manner provided for the appointment of members of the Trade Deficit Review Commission under section 127(c)(3) of the Trade Deficit

Review Commission Act (19 U.S.C. 2213 note), except that—

(A) appointment of members by the Speaker of the

House of Representatives shall be made after consultation

with the chairman of the Committee on Armed Services of

the House of Representatives, in addition to consultation

with the chairman of the Committee on Ways and Means

of the House of Representatives provided for under clause

(iii) of subparagraph (A) of that section;

(B) appointment of members by the President pro tempore of the Senate upon the recommendation of the majority leader of the Senate shall be made after consultation

with the chairman of the Committee on Armed Services of

the Senate, in addition to consultation with the chairman

of the Committee on Finance of the Senate provided for

under clause (i) of that subparagraph;

(C) appointment of members by the President pro tempore of the Senate upon the recommendation of the minority leader of the Senate shall be made after consultation

with the ranking minority member of the Committee on

Armed Services of the Senate, in addition to consultation

with the ranking minority member of the Committee on

Finance of the Senate provided for under clause (ii) of that

subparagraph;

(D) appointment of members by the minority leader of

the House of Representatives shall be made after consultation with the ranking minority member of the Committee

on Armed Services of the House of Representatives, in addition to consultation with the ranking minority member

of the Committee on Ways and Means of the House of Representatives provided for under clause (iv) of that subparagraph;

(E) persons appointed to the Commission shall have

expertise in national security matters and United StatesChina relations, in addition to the expertise provided for

under subparagraph (B)(i)(I) of that section;

(F) each appointing authority referred to under subparagraphs (A) through (D) of this paragraph shall—
FY01 RELATIONS WITH FOREIGN COUNTRIES 638

(i) appoint 3 members to the Commission;

(ii) make the appointments on a staggered term

basis, such that—

(I) 1 appointment shall be for a term expiring

on December 31, 2003;

(II) 1 appointment shall be for a term expiring

on December 31, 2004; and

(III) 1 appointment shall be for a term expiring on December 31, 2005;

(iii) make all subsequent appointments on an approximate 2-year term basis to expire on December 31

of the applicable year; and

(iv) make appointments not later than 30 days

after the date on which each new Congress convenes;

(G) members of the Commission may be reappointed

for additional terms of service as members of the Commission; and

(H) members of the Trade Deficit Review Commission

as of the date of the enactment of this Act shall serve as

members of the Commission until such time as members

are first appointed to the Commission under this paragraph.

(4) RETENTION OF SUPPORT.—The Commission shall retain

and make use of such staff, materials, and infrastructure (including leased premises) of the Trade Deficit Review Commission as the Commission determines, in the judgment of the

members of the Commission, are required to facilitate the

ready commencement of activities of the Commission under

subsection (c) or to carry out such activities after the commencement of such activities.

(5) CHAIRMAN AND VICE CHAIRMAN.—The members of the

Commission shall select a Chairman and Vice Chairman of the

Commission from among the members of the Commission.

(6) MEETINGS.—

(A) MEETINGS.—The Commission shall meet at the call

of the Chairman of the Commission.

(B) QUORUM.—A majority of the members of the Commission shall constitute a quorum for the transaction of

business of the Commission.

(7) VOTING.—Each member of the Commission shall be entitled to one vote, which shall be equal to the vote of every

other member of the Commission.

(c) DUTIES.—

(1) ANNUAL REPORT.—Not later than June 1 each year (beginning in 2002), the Commission shall submit to Congress a

report, in both unclassified and classified form, regarding the

national security implications and impact of the bilateral trade

and economic relationship between the United States and the

People’s Republic of China. The report shall include a full analysis, along with conclusions and recommendations for legislative and administrative actions, if any, of the national security

implications for the United States of the trade and current balances with the People’s Republic of China in goods and services, financial transactions, and technology transfers. The Com-
639 FY01 RELATIONS WITH FOREIGN COUNTRIES

mission shall also take into account patterns of trade and

transfers through third countries to the extent practicable.

(2) CONTENTS OF REPORT.—Each report under paragraph

(1) shall include, at a minimum, a full discussion of the following:

(A) The portion of trade in goods and services with the

United States that the People’s Republic of China dedicates to military systems or systems of a dual nature that

could be used for military purposes.

(B) The acquisition by the People’s Republic of China

of advanced military or dual-use technologies from the

United States by trade (including procurement) and other

technology transfers, especially those transfers, if any, that

contribute to the proliferation of weapons of mass destruction or their delivery systems, or that undermine international agreements or United States laws with respect to

nonproliferation.

(C) Any transfers, other than those identified under

subparagraph (B), to the military systems of the People’s

Republic of China made by United States firms and United

States-based multinational corporations.

(D) An analysis of the statements and writing of the

People’s Republic of China officials and officially-sanctioned writings that bear on the intentions, if any, of the

Government of the People’s Republic of China regarding

the pursuit of military competition with, and leverage

over, or cooperation with, the United States and the Asian

allies of the United States.

(E) The military actions taken by the Government of

the People’s Republic of China during the preceding year

that bear on the national security of the United States and

the regional stability of the Asian allies of the United

States.

(F) The effects, if any, on the national security interests of the United States of the use by the People’s Republic of China of financial transactions and capital flow and

currency manipulations.

(G) Any action taken by the Government of the People’s Republic of China in the context of the World Trade

Organization that is adverse or favorable to the United

States national security interests.

(H) Patterns of trade and investment between the People’s Republic of China and its major trading partners,

other than the United States, that appear to be substantively different from trade and investment patterns

with the United States and whether the differences have

any national security implications for the United States.

(I) The extent to which the trade surplus of the People’s Republic of China with the United States enhances

the military budget of the People’s Republic of China.

(J) An overall assessment of the state of the security

challenges presented by the People’s Republic of China to

the United States and whether the security challenges are

increasing or decreasing from previous years.
FY01 RELATIONS WITH FOREIGN COUNTRIES 640

(3) RECOMMENDATIONS OF REPORT.—Each report under

paragraph (1) shall also include recommendations for action by

Congress or the President, or both, including specific recommendations for the United States to invoke Article XXI (relating to security exceptions) of the General Agreement on Tariffs and Trade 1994 with respect to the People’s Republic of

China, as a result of any adverse impact on the national security interests of the United States.

(d) HEARINGS.— (1) IN GENERAL.—The Commission or, at its direction, any

panel or member of the Commission, may for the purpose of

carrying out the provisions of this section, hold hearings, sit

and act at times and places, take testimony, receive evidence,

and administer oaths to the extent that the Commission or any

panel or member considers advisable.

(2) INFORMATION.—The Commission may secure directly

from the Department of Defense, the Central Intelligence

Agency, and any other Federal department or agency information that the Commission considers necessary to enable the

Commission to carry out its duties under this section, except

the provision of intelligence information to the Commission

shall be made with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally

sensitive matters, under procedures approved by the Director

of Central Intelligence.

(3) SECURITY.—The Office of Senate Security shall—

(A) provide classified storage and meeting and hearing

spaces, when necessary, for the Commission; and

(B) assist members and staff of the Commission in obtaining security clearances.

(4) SECURITY CLEARANCES.—All members of the Commission and appropriate staff shall be sworn and hold appropriate

security clearances.

(e) COMMISSION PERSONNEL MATTERS.—

(1) COMPENSATION OF MEMBERS.—Members of the Commission shall be compensated in the same manner provided for the

compensation of members of the Trade Deficit Review Commission under section 127(g)(1) and section 127(g)(6) of the Trade

Deficit Review Commission Act (19 U.S.C. 2213 note).

(2) TRAVEL EXPENSES.—Travel expenses of the Commission

shall be allowed in the same manner provided for the allowance of the travel expenses of the Trade Deficit Review Commission under section 127(g)(2) of the Trade Deficit Review

Commission Act.

(3) STAFF.—An executive director and other additional personnel for the Commission shall be appointed, compensated,

and terminated in the same manner provided for the appointment, compensation, and termination of the executive director

and other personnel of the Trade Deficit Review Commission

under section 127(g)(3) and section 127(g)(6) of the Trade Deficit Review Commission Act. The executive director and any

personnel who are employees of the United States-China Economic and Security Review Commission shall be employees
641 FY01 COOPERATIVE THREAT REDUCTION

under section 2105 of title 5, United States Code, for purposes

of chapters 63, 81, 83, 84, 85, 87, 89, and 90 of that title.

(4) DETAIL OF GOVERNMENT EMPLOYEES.—Federal Government employees may be detailed to the Commission in the

same manner provided for the detail of Federal Government

employees to the Trade Deficit Review Commission under section 127(g)(4) of the Trade Deficit Review Commission Act.

(5) FOREIGN TRAVEL FOR OFFICIAL PURPOSES.—Foreign

travel for official purposes by members and staff of the Commission may be authorized by either the Chairman or the Vice

Chairman of the Commission.

(6) PROCUREMENT OF TEMPORARY AND INTERMITTENT SERVICES.—The Chairman of the Commission may procure temporary and intermittent services for the Commission in the

same manner provided for the procurement of temporary and

intermittent services for the Trade Deficit Review Commission

under section 127(g)(5) of the Trade Deficit Review Commission Act.

(f ) AUTHORIZATION OF APPROPRIATIONS.—

(1) IN GENERAL.—There is authorized to be appropriated to

the Commission for fiscal year 2001, and for each fiscal year

thereafter, such sums as may be necessary to enable the Commission to carry out its functions under this section.

(2) AVAILABILITY.—Amounts appropriated to the Commission shall remain available until expended.

(g) FEDERAL ADVISORY COMMITTEE ACT.—The provisions of the

Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to

the Commission.

(h) EFFECTIVE DATE.—This section shall take effect on the first

day of the 107th Congress.

TITLE XIII—COOPERATIVE THREAT REDUCTION WITH

STATES OF THE FORMER SOVIET UNION

SEC. 1301. ø22 U.S.C. 5959 note¿ SPECIFICATION OF COOPERATIVE

THREAT REDUCTION PROGRAMS AND FUNDS.

(a) SPECIFICATION OF CTR PROGRAMS.—For purposes of section

301 and other provisions of this Act, Cooperative Threat Reduction

programs are the programs specified in section 1501(b) of the National Defense Authorization Act for Fiscal Year 1997 (Public Law

104–201; 110 Stat. 2731; 50 U.S.C. 2362 note).

(b) FISCAL YEAR 2001 COOPERATIVE THREAT REDUCTION FUNDS

DEFINED.—As used in this title, the term ‘‘fiscal year 2001 Cooperative Threat Reduction funds’’ means the funds appropriated pursuant to the authorization of appropriations in section 301 for Cooperative Threat Reduction programs.

(c) AVAILABILITY OF FUNDS.—Funds appropriated pursuant to

the authorization of appropriations in section 301 for Cooperative

Threat Reduction programs shall be available for obligation for

three fiscal years.

* * * * * * *
FY01 COOPERATIVE THREAT REDUCTION 642

SEC. 1303. ø22 U.S.C. 5952 note¿ PROHIBITION ON USE OF FUNDS FOR

ELIMINATION OF CONVENTIONAL WEAPONS.

No fiscal year 2001 Cooperative Threat Reduction funds, and

no funds appropriated for Cooperative Threat Reduction programs

for any other fiscal year, may be obligated or expended for elimination of conventional weapons or the delivery vehicles primarily

intended to deliver such weapons.

* * * * * * *

SEC. 1306. AGREEMENT ON NUCLEAR WEAPONS STORAGE SITES.

The Secretary of Defense shall seek to enter into an agreement

with Russia regarding procedures to allow the United States appropriate access to nuclear weapons storage sites for which assistance

under Cooperative Threat Reduction programs is provided.

* * * * * * *

SEC. 1308. ø22 U.S.C. 5959¿ REPORTS ON ACTIVITIES AND ASSISTANCE

UNDER COOPERATIVE THREAT REDUCTION PROGRAMS.

(a) ANNUAL REPORT.—In any year in which the budget of the

President under section 1105 of title 31, United States Code, for

the fiscal year beginning in such year requests funds for the Department of Defense for assistance or activities under Cooperative

Threat Reduction programs with the states of the former Soviet

Union, the Secretary of Defense shall submit to Congress a report

on activities and assistance during the preceding fiscal year under

Cooperative Threat Reduction programs setting forth the matters

in subsection (c).

(b) DEADLINE FOR REPORT.—The report under subsection (a)

shall be submitted not later than the first Monday in February of

a year.

(c) MATTERS TO BE INCLUDED.—The report under subsection

(a) in a year shall set forth the following:

(1) An estimate of the total amount that will be required

to be expended by the United States in order to achieve the objectives of the Cooperative Threat Reduction programs.

(2) A five-year plan setting forth the amount of funds and

other resources proposed to be provided by the United States

for Cooperative Threat Reduction programs over the term of

the plan, including the purpose for which such funds and resources will be used, and to provide guidance for the preparation of annual budget submissions with respect to Cooperative

Threat Reduction programs.

(3) A description of the Cooperative Threat Reduction activities carried out during the fiscal year ending in the year

preceding the year of the report, including—

(A) the amounts notified, obligated, and expended for

such activities and the purposes for which such amounts

were notified, obligated, and expended for such fiscal year

and cumulatively for Cooperative Threat Reduction programs;

(B) a description of the participation, if any, of each

department and agency of the United States Government

in such activities;
643 FY01 COOPERATIVE THREAT REDUCTION

(C) a description of such activities, including the forms

of assistance provided;

(D) a description of the United States private sector

participation in the portion of such activities that were

supported by the obligation and expenditure of funds for

Cooperative Threat Reduction programs; and

(E) such other information as the Secretary of Defense

considers appropriate to inform Congress fully of the operation of Cooperative Threat Reduction programs and activities, including with respect to proposed demilitarization

or conversion projects, information on the progress toward

demilitarization of facilities and the conversion of the demilitarized facilities to civilian activities.

(4) A description of the means (including program management, audits, examinations, and other means) used by the

United States during the fiscal year ending in the year preceding the year of the report to ensure that assistance provided

under Cooperative Threat Reduction programs is fully accounted for, that such assistance is being used for its intended

purpose, and that such assistance is being used efficiently and

effectively, including—

(A) if such assistance consisted of equipment, a description of the current location of such equipment and the

current condition of such equipment;

(B) if such assistance consisted of contracts or other

services, a description of the status of such contracts or

services and the methods used to ensure that such contracts and services are being used for their intended purpose;

(C) a determination whether the assistance described

in subparagraphs (A) and (B) has been used for its intended purpose and an assessment of whether the assistance being provided is being used effectively and efficiently; and

(D) a description of the efforts planned to be carried

out during the fiscal year beginning in the year of the report to ensure that Cooperative Threat Reduction assistance provided during such fiscal year is fully accounted for

and is used for its intended purpose.

(5) A current description of the tactical nuclear weapons

arsenal of Russia, including—

(A) an estimate of the current types, numbers, yields,

viability, locations, and deployment status of the nuclear

warheads in that arsenal;

(B) an assessment of the strategic relevance of such

warheads;

(C) an assessment of the current and projected threat

of theft, sale, or unauthorized use of such warheads; and

(D) a summary of past, current, and planned United

States efforts to work cooperatively with Russia to account

for, secure, and reduce Russia’s stockpile of tactical nuclear warheads and associated fissile materials.

(6) A description of the amount of the financial commitment from the international community, and from Russia, for
FY01 COOPERATIVE THREAT REDUCTION 644

the chemical weapons destruction facility located at

Shchuch’ye, Russia, for the fiscal year beginning in the year in

which the report is submitted.

(7) To the maximum extent practicable, a description of

how revenue generated by activities carried out under Cooperative Threat Reduction programs in recipient States is being

utilized, monitored, and accounted for.

(8) A description of the defense and military activities carried out under Cooperative Threat Reduction programs during

the fiscal year ending in the year preceding the year of the report, including—

(A) the amounts obligated or expended for such activities;

(B) the purposes, goals, and objectives for which such

amounts were obligated and expended;

(C) a description of the activities carried out, including

the forms of assistance provided, and the justification for

each form of assistance provided;

(D) the success of each activity, including the goals

and objectives achieved for each;

(E) a description of participation by private sector entities in the United States in carrying out such activities,

and the participation of any other Federal department or

agency in such activities; and

(F) any other information that the Secretary considers

relevant to provide a complete description of the operation

and success of activities carried out under Cooperative

Threat Reduction programs.

(d) INPUT OF DCI.—The Director of Central Intelligence shall

submit to the Secretary of Defense the views of the Director on any

matters covered by subsection (c)(5) in a report under subsection

(a). Such views shall be included in such report as a classified

annex to such report.

(e) COMPTROLLER GENERAL ASSESSMENT.—Not later than 90

days after the date on which a report is submitted to Congress

under subsection (a), the Comptroller General shall submit to Congress a report setting forth the Comptroller General’s assessment

of the information described in paragraphs (2) and (4) of subsection

(c).

(f ) FIRST REPORT.—The first report submitted under subsection

(a) shall be submitted in 2001.

(g) REPEAL OF SUPERSEDED REPORTING REQUIREMENTS.—

øOmitted-Amendments¿

(h) LIMITATION ON USE OF FUNDS UNTIL SUBMISSION OF

MULTIYEAR PLAN.—Not more than 10 percent of fiscal year 2001

Cooperative Threat Reduction funds may be obligated or expended

until the Secretary of Defense submits to Congress an updated version of the multiyear plan for fiscal year 2001 required to be submitted under section 1205 of the National Defense Authorization

Act for Fiscal Year 1995 (Public Law 103–337; 22 U.S.C. 5952

note).

(i) REPORT ON RUSSIAN NONSTRATEGIC NUCLEAR ARMS.—Not

later than 30 days after the date of the enactment of this Act, the
645 FY00 RELATIONS WITH FOREIGN COUNTRIES

Secretary of Defense shall submit to Congress a report on the following regarding Russia’s arsenal of tactical nuclear warheads:

(1) Estimates regarding current types, numbers, yields, viability, locations, and deployment status of the warheads.

(2) An assessment of the strategic relevance of the warheads.

(3) An assessment of the current and projected threat of

theft, sale, or unauthorized use of the warheads.

(4) A summary of past, current, and planned United States

efforts to work cooperatively with Russia to account for, secure,

and reduce Russia’s stockpile of tactical nuclear warheads and

associated fissile material.

f. National Defense Authorization Act for Fiscal Year 2000

(Public Law 106–65, approved Oct. 5, 1999)

TITLE X—GENERAL PROVISIONS

* * * * * * *

Subtitle D—Miscellaneous Report Requirements and

Repeals

* * * * * * *

SEC. 1035. REPORT ON ASSESSMENTS OF READINESS TO EXECUTE

THE NATIONAL MILITARY STRATEGY.

(a) REPORT.—Not later than April 1 each year (but subject to

subsection (e)), the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report in unclassified form assessing the effect of

continued operations in the Balkans region on—

(1) the ability of the Armed Forces to successfully meet

other regional contingencies; and

(2) the readiness of the Armed Forces to execute the National Military Strategy.

(b) MATTERS TO BE INCLUDED.—Each report under subsection

(a) shall include the following:

(1) All models used by the Chairman of the Joint Chiefs

of Staff to assess the capability of the United States to execute

the full range of missions under the National Military Strategy

and all other models used by the Armed Forces to assess that

capability.

(2) Separate assessments that would result from the use of

those models if it were necessary to execute the full range of

missions called for under the National Military Strategy under

each of the scenarios set forth in subsection (c), including the

levels of casualties the United States would be projected to

incur.

(3) Assumptions made about the readiness levels of major

units included in each such assessment, including equipment,

personnel, and training readiness and sustainment ability.

(4) The increasing levels of casualties that would be projected under each such scenario over a range of risks of pros-
FY00 RELATIONS WITH FOREIGN COUNTRIES 646

ecuting two Major Theater Wars that proceeds from low-moderate risk to moderate-high risk.

(5) An estimate of—

(A) the total resources needed to attain a moderatehigh risk under those scenarios;

(B) the total resources needed to attain a low-moderate risk under those scenarios; and

(C) the incremental resources needed to decrease the

level of risk from moderate-high to low-moderate.

(c) SCENARIOS TO BE USED.—The scenarios to be used for purposes of paragraphs (1), (2), and (3) of subsection (b) are the following:

(1) That while the Armed Forces are engaged in operations

at the level of the operations ongoing as of the date of the enactment of this Act, international armed conflict begins—

(A) on the Korean peninsula; and

(B) first on the Korean peninsula and then 45 days

later in Southwest Asia.

(2) That while the Armed Forces are engaged in operations

at the peak level reached during Operation Allied Force

against the Federal Republic of Yugoslavia, international

armed conflict begins—

(A) on the Korean peninsula; and

(B) first on the Korean peninsula and then 45 days

later in Southwest Asia.

(d) CONSULTATION.—In preparing a report under this section,

the Secretary of Defense shall consult with the Chairman of the

Joint Chiefs of Staff, the commanders of the unified commands, the

Secretaries of the military departments, and the heads of the combat support agencies and other such entities within the Department of Defense as the Secretary considers necessary.

(e) TERMINATION WHEN UNITED STATES MILITARY OPERATIONS

END.—(1) No report is required under this section after United

States military operations in the Balkans region have ended.

(2) After the requirement for an annual report under this section is terminated by operation of paragraph (1), but not later than

the latest date on which the next annual report under this section

would, except for paragraph (1), otherwise be due, the Secretary of

Defense shall transmit to Congress a notification of the termination

of the reporting requirement.

* * * * * * *

SEC. 1039. ø10 U.S.C. 113 note¿ REPORT ON NATO DEFENSE CAPABILITIES INITIATIVE.

(a) FINDINGS.—Congress makes the following findings:

(1) At the meeting of the North Atlantic Council held in

Washington, DC, in April 1999, the NATO Heads of State and

Governments launched a Defense Capabilities Initiative.

(2) The Defense Capabilities Initiative is designed to improve the defense capabilities of the individual nations of the

NATO Alliance to ensure the effectiveness of future operations

across the full spectrum of Alliance missions in the present

and foreseeable security environment.
647 FY00 RELATIONS WITH FOREIGN COUNTRIES

(3) Under the Defense Capabilities Initiative, special focus

will be given to improving interoperability among Alliance

forces and to increasing defense capabilities through improvements in the deployability and mobility of Alliance forces, the

sustainability and logistics of those forces, the survivability

and effective engagement capability of those forces, and command and control and information systems.

(4) The successful implementation of the Defense Capabilities Initiative will serve to enable all members of the Alliance

to make a more equitable contribution to the full spectrum of

Alliance missions, thereby increasing burdensharing within the

Alliance and enhancing the ability of European members of the

Alliance to undertake operations pursuant to the European Security and Defense Identity within the Alliance.

(b) ANNUAL REPORT.—øRepealed¿

* * * * * * *

TITLE XII—MATTERS RELATING TO OTHER NATIONS

Subtitle A—Matters Relating to the People’s Republic of

China

SEC. 1201. ø10 U.S.C. 168 note¿ LIMITATION ON MILITARY-TO-MILITARY

EXCHANGES AND CONTACTS WITH CHINESE PEOPLE’S

LIBERATION ARMY.

(a) LIMITATION.—The Secretary of Defense may not authorize

any military-to-military exchange or contact described in subsection (b) to be conducted by the armed forces with representatives of the People’s Liberation Army of the People’s Republic of

China if that exchange or contact would create a national security

risk due to an inappropriate exposure specified in subsection (b).

(b) COVERED EXCHANGES AND CONTACTS.—Subsection (a) applies to any military-to-military exchange or contact that includes

inappropriate exposure to any of the following:

(1) Force projection operations.

(2) Nuclear operations.

(3) Advanced combined-arms and joint combat operations.

(4) Advanced logistical operations.

(5) Chemical and biological defense and other capabilities

related to weapons of mass destruction.

(6) Surveillance and reconnaissance operations.

(7) Joint warfighting experiments and other activities related to a transformation in warfare.

(8) Military space operations.

(9) Other advanced capabilities of the Armed Forces.

(10) Arms sales or military-related technology transfers.

(11) Release of classified or restricted information.

(12) Access to a Department of Defense laboratory.

(c) EXCEPTIONS.—Subsection (a) does not apply to any searchand-rescue or humanitarian operation or exercise.

(d) ANNUAL CERTIFICATION BY SECRETARY.—The Secretary of

Defense shall submit to the Committee on Armed Services of the

Senate and the Committee on Armed Services of the House of Representatives, not later than December 31 each year, a certification
FY00 RELATIONS WITH FOREIGN COUNTRIES 648

in writing as to whether or not any military-to-military exchange

or contact during that calendar year was conducted in violation of

subsection (a).

(e) ANNUAL REPORT.—Not later than March 31 each year beginning in 2001, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on

Armed Services of the House of Representatives a report providing

the Secretary’s assessment of the current state of military-to-military exchanges and contacts with the People’s Liberation Army.

The report shall include the following:

(1) A summary of all such military-to-military contacts

during the period since the last such report, including a summary of topics discussed and questions asked by the Chinese

participants in those contacts.

(2) A description of the military-to-military exchanges and

contacts scheduled for the next 12-month period and a plan for

future contacts and exchanges.

(3) The Secretary’s assessment of the benefits the Chinese

expect to gain from those military-to-military exchanges and

contacts.

(4) The Secretary’s assessment of the benefits the Department of Defense expects to gain from those military-to-military

exchanges and contacts.

(5) The Secretary’s assessment of how military-to-military

exchanges and contacts with the People’s Liberation Army fit

into the larger security relationship between the United States

and the People’s Republic of China.

(f) REPORT OF PAST MILITARY-TO-MILITARY EXCHANGES AND

CONTACTS WITH THE PRC.—Not later than March 31, 2000, the

Secretary of Defense shall submit to the Committee on Armed

Services of the Senate and the Committee on Armed Services of the

House of Representatives a report on past military-to-military exchanges and contacts between the United States and the People’s

Republic of China. The report shall be unclassified, but may contain a classified annex, and shall include the following:

(1) A list of the general and flag grade officers of the People’s Liberation Army who have visited United States military

installations since January 1, 1993.

(2) The itinerary of the visits referred to in paragraph (2),

including the installations visited, the duration of the visits,

and the activities conducted during the visits.

(3) The involvement, if any, of the general and flag officers

referred to in paragraph (1) in the Tiananmen Square massacre of June 1989.

(4) A list of the facilities in the People’s Republic of China

that United States military officers have visited as a result of

any military-to-military exchange or contact program between

the United States and the People’s Republic of China since

January 1, 1993.

(5) A list of facilities in the People’s Republic of China that

have been the subject of a requested visit by the Department

of Defense that has been denied by People’s Republic of China

authorities.
649 FY00 RELATIONS WITH FOREIGN COUNTRIES

(6) A list of facilities in the United States that have been

the subject of a requested visit by the People’s Liberation Army

that has been denied by the United States.

(7) Any official documentation (such as memoranda for the

record, after-action reports, and final itineraries) and all receipts for expenses over $1,000, concerning military-to-military

exchanges or contacts between the United States and the People’s Republic of China in 1999.

(8) A description of military-to-military exchanges or contacts between the United States and the People’s Republic of

China scheduled for 2000.

(9) An assessment regarding whether or not any People’s

Republic of China military officials have been shown classified

material as a result of military-to-military exchanges or contacts between the United States and the People’s Republic of

China.

SEC. 1202. ø10 U.S.C. 113 note¿ ANNUAL REPORT ON MILITARY POWER

OF THE PEOPLE’S REPUBLIC OF CHINA.

(a) ANNUAL REPORT.—Not later than March 1 each year, the

Secretary of Defense shall submit to the specified congressional

committees a report, in both classified and unclassified form, on

the current and future military strategy of the People’s Republic of

China. The report shall address the current and probable future

course of military-technological development on the People’s Liberation Army and the tenets and probable development of Chinese

grand strategy, security strategy, and military strategy, and of

military organizations and operational concepts, through the next

20 years.

(b) MATTERS TO BE INCLUDED.—Each report under this section

shall include analyses and forecasts of the following:

(1) The goals of Chinese grand strategy, security strategy,

and military strategy.

(2) Trends in Chinese strategy that would be designed to

establish the People’s Republic of China as the leading political

power in the Asia-Pacific region and as a political and military

presence in other regions of the world.

(3) The security situation in the Taiwan Strait.

(4) Chinese strategy regarding Taiwan.

(5) The size, location, and capabilities of Chinese strategic,

land, sea, and air forces, including detailed analysis of those

forces facing Taiwan.

(6) Developments in Chinese military doctrine, focusing on

(but not limited to) efforts to exploit a transformation in military affairs or to conduct preemptive strikes.

(7) Efforts, including technology transfers and espionage,

by the People’s Republic of China to develop, acquire, or gain

access to information, communication, space and other advanced technologies that would enhance military capabilities.

(8) An assessment of any challenges during the preceding

year to the deterrent forces of the Republic of China on Taiwan, consistent with the commitments made by the United

States in the Taiwan Relations Act (Public Law 96–8).
FY00 RELATIONS WITH FOREIGN COUNTRIES 650

(c) SPECIFIED CONGRESSIONAL COMMITTEES.—For purposes of

this section, the term ‘‘specified congressional committees’’ means

the following:

(1) The Committee on Armed Services and the Committee

on Foreign Relations of the Senate.

(2) The Committee on Armed Services and the Committee

on International Relations of the House of Representatives.

(d) REPORT ON SIGNIFICANT SALES AND TRANSFERS TO CHINA.—

(1) The report to be submitted under this section not later than

March 1, 2002, shall include in a separate section a report describing any significant sale or transfer of military hardware, expertise,

and technology to the People’s Republic of China. The report shall

set forth the history of such sales and transfers since 1995, forecast

possible future sales and transfers, and address the implications of

those sales and transfers for the security of the United States and

its friends and allies in Asia.

(2) The report shall include analysis and forecasts of the following matters related to military cooperation between selling

states and the People’s Republic of China:

(A) The extent in each selling state of government knowledge, cooperation, or condoning of sales or transfers of military

hardware, expertise, or technology to the People’s Republic of

China.

(B) An itemization of significant sales and transfers of

military hardware, expertise, or technology from each selling

state to the People’s Republic of China that have taken place

since 1995, with a particular focus on command, control, communications, and intelligence systems.

(C) Significant assistance by any selling state to key research and development programs of China, including programs for development of weapons of mass destruction and delivery vehicles for such weapons, programs for development of

advanced conventional weapons, and programs for development

of unconventional weapons.

(D) The extent to which arms sales by any selling state to

the People’s Republic of China are a source of funds for military research and development or procurement programs in

the selling state.

(3) The report under paragraph (1) shall include, with respect

to each area of analysis and forecasts specified in paragraph (2)—

(A) an assessment of the military effects of such sales or

transfers to entities in the People’s Republic of China;

(B) an assessment of the ability of the People’s Liberation

Army to assimilate such sales or transfers, mass produce new

equipment, or develop doctrine for use; and

(C) the potential threat of developments related to such effects on the security interests of the United States and its

friends and allies in Asia.

* * * * * * *
651 FY00 COOPERATIVE THREAT REDUCTION

Subtitle D—Other Matters

SEC. 1231. ø50 U.S.C. 1707¿ MULTINATIONAL ECONOMIC EMBARGOES

AGAINST GOVERNMENTS IN ARMED CONFLICT WITH THE

UNITED STATES.

(a) POLICY ON THE ESTABLISHMENT OF EMBARGOES.—It is the

policy of the United States, that upon the use of the Armed Forces

of the United States to engage in hostilities against any foreign

country, the President shall, as appropriate—

(1) seek the establishment of a multinational economic embargo against such country; and

(2) seek the seizure of its foreign financial assets.

(b) REPORTS TO CONGRESS.—Not later than 20 days after the

first day of the engagement of the United States in hostilities described in subsection (a), the President shall, if the armed conflict

has continued for 14 days, submit to Congress a report setting

forth—

(1) the specific steps the United States has taken and will

continue to take to establish a multinational economic embargo

and to initiate financial asset seizure pursuant to subsection

(a); and

(2) any foreign sources of trade or revenue that directly or

indirectly support the ability of the adversarial government to

sustain a military conflict against the United States.

SEC. 1232. ø50 U.S.C. 1541 note¿ LIMITATION ON DEPLOYMENT OF

ARMED FORCES IN HAITI DURING FISCAL YEAR 2000 AND

CONGRESSIONAL NOTICE OF DEPLOYMENTS TO HAITI.

(a) LIMITATION ON DEPLOYMENT.—No funds available to the

Department of Defense during fiscal year 2000 may be expended

after May 31, 2000, for the continuous deployment of United States

Armed Forces in Haiti pursuant to the Department of Defense operation designated as Operation Uphold Democracy.

ø(b) Repealed. P.L. 107–107, § 1222, Dec. 28, 2001, 115 Stat.

1253.¿

* * * * * * *

TITLE XIII—COOPERATIVE THREAT REDUCTION WITH

STATES OF THE FORMER SOVIET UNION

SEC. 1301. ø22 U.S.C. 5952 note¿ SPECIFICATION OF COOPERATIVE

THREAT REDUCTION PROGRAMS AND FUNDS.

(a) SPECIFICATION OF CTR PROGRAMS.—For purposes of section

301 and other provisions of this Act, Cooperative Threat Reduction

programs are the programs specified in section 1501(b) of the National Defense Authorization Act for Fiscal Year 1997 (Public Law

104–201; 110 Stat. 2731; 50 U.S.C. 2362 note).

(b) FISCAL YEAR 2000 COOPERATIVE THREAT REDUCTION FUNDS

DEFINED.—As used in this title, the term ‘‘fiscal year 2000 Cooperative Threat Reduction funds’’ means the funds appropriated pursuant to the authorization of appropriations in section 301 for Cooperative Threat Reduction programs.

(c) AVAILABILITY OF FUNDS.—Funds appropriated pursuant to

the authorization of appropriations in section 301 for Cooperative

Threat Reduction programs shall be available for obligation for

three fiscal years.
FY00 COOPERATIVE THREAT REDUCTION 652

SEC. 1302. FUNDING ALLOCATIONS.

(a) FUNDING FOR SPECIFIC PURPOSES.—Of the $475,500,000 authorized to be appropriated to the Department of Defense for fiscal

year 2000 in section 301(23) for Cooperative Threat Reduction programs, not more than the following amounts may be obligated for

the purposes specified:

(1) For strategic offensive arms elimination in Russia,

$177,300,000.

(2) For strategic nuclear arms elimination in Ukraine,

$41,800,000.

(3) For activities to support warhead dismantlement processing in Russia, $9,300,000.

(4) For security enhancements at chemical weapons storage sites in Russia, $20,000,000.

(5) For weapons transportation security in Russia,

$15,200,000.

(6) For planning, design, and construction of a storage facility for Russian fissile material, $64,500,000.

(7) For weapons storage security in Russia, $99,000,000.

(8) For development of a cooperative program with the

Government of Russia to eliminate the production of weapons

grade plutonium at Russian reactors, $32,300,000.

(9) For biological weapons proliferation prevention activities in Russia, $12,000,000.

(10) For activities designated as Other Assessments/Administrative Support, $1,800,000.

(11) For defense and military contacts, $2,300,000.

(b) REPORT ON OBLIGATION OR EXPENDITURE OF FUNDS FOR

OTHER PURPOSES.—No fiscal year 2000 Cooperative Threat Reduction funds may be obligated or expended for a purpose other than

a purpose listed in paragraphs (1) through (11) of subsection (a)

until 30 days after the date that the Secretary of Defense submits

to Congress a report on the purpose for which the funds will be obligated or expended and the amount of funds to be obligated or expended. Nothing in the preceding sentence shall be construed as

authorizing the obligation or expenditure of fiscal year 2000 Cooperative Threat Reduction funds for a purpose for which the obligation or expenditure of such funds is specifically prohibited under

this title.

(c) LIMITED AUTHORITY TO VARY INDIVIDUAL AMOUNTS.—(1)

Subject to paragraphs (2) and (3), in any case in which the Secretary of Defense determines that it is necessary to do so in the national interest, the Secretary may obligate amounts appropriated

for fiscal year 2000 for a purpose listed in any of the paragraphs

in subsection (a) in excess of the amount specifically authorized for

such purpose.

(2) An obligation of funds for a purpose stated in any of the

paragraphs in subsection (a) in excess of the specific amount authorized for such purpose may be made using the authority provided in paragraph (1) only after—

(A) the Secretary submits to Congress notification of the

intent to do so together with a complete discussion of the justification for doing so; and
653 FY00 COOPERATIVE THREAT REDUCTION

(B) 15 days have elapsed following the date of the notification.

(3) The Secretary may not, under the authority provided in

paragraph (1), obligate amounts for the purposes stated in any of

paragraphs (4) through (6), (8), (10), or (11) of subsection (a) in excess of 115 percent of the amount specifically authorized for such

purposes.

SEC. 1303. ø22 U.S.C. 5952 note¿ PROHIBITION ON USE OF FUNDS FOR

SPECIFIED PURPOSES.

(a) IN GENERAL.—No fiscal year 2000 Cooperative Threat Reduction funds, and no funds appropriated for Cooperative Threat

Reduction programs after the date of the enactment of this Act,

may be obligated or expended for any of the following purposes:

(1) Conducting with Russia any peacekeeping exercise or

other peacekeeping-related activity.

(2) Provision of housing.

(3) Provision of assistance to promote environmental restoration.

(4) Provision of assistance to promote job retraining.

(b) LIMITATION WITH RESPECT TO DEFENSE CONVERSION ASSISTANCE.—None of the funds appropriated pursuant to the authorization of appropriations in section 301 of this Act, and no funds

appropriated to the Department of Defense in any other Act enacted after the date of the enactment of this Act, may be obligated

or expended for the provision of assistance to Russia or any other

state of the former Soviet Union to promote defense conversion.

(c) LIMITATION WITH RESPECT TO CONVENTIONAL WEAPONS.—

No fiscal year 2000 Cooperative Threat Reduction funds may be obligated or expended for elimination of conventional weapons or the

delivery vehicles primarily intended to deliver such weapons.

SEC. 1304. ø22 U.S.C. 5952 note¿ LIMITATIONS ON USE OF FUNDS FOR

FISSILE MATERIAL STORAGE FACILITY.

(a) LIMITATIONS ON USE OF FISCAL YEAR 2000 FUNDS.—No fiscal year 2000 Cooperative Threat Reduction funds may be used—

(1) for construction of a second wing for the storage facility

for Russian fissile material referred to in section 1302(a)(6); or

(2) for design or planning with respect to such facility until

15 days after the date that the Secretary of Defense submits

to Congress notification that Russia and the United States

have signed a verifiable written transparency agreement that

ensures that material stored at the facility is of weapons origin.

(b) LIMITATION ON CONSTRUCTION.—No funds authorized to be

appropriated for Cooperative Threat Reduction programs may be

used for construction of the storage facility referred to in subsection

(a) until the Secretary of Defense submits to Congress the following:

(1) A certification that additional capacity is necessary at

such facility for storage of Russian weapons-origin fissile material.

(2) A detailed cost estimate for a second wing for the facility.
FY00 COOPERATIVE THREAT REDUCTION 654

1Section 8144 of the Department of Defense Appropriations Act, 2003 (Public Law 107–248;

116 Stat. 1571), as amended, provides:

SEC. 8144. (a) The conditions described in section 1305 of the National Defense Authorization

Act for Fiscal Year 2000 (Public Law 106–65; 22 U.S.C. 5952 note) shall not apply to the obligation and expenditure of funds for fiscal years 2000, 2001, 2002 and 2003 for the planning, design, or construction of a chemical weapons destruction facility in Russia if the President submits to Congress a written certification that includes—

(1) a statement as to why waiving the conditions is important to the national security

interests of the United States;

(2) a full and complete justification for exercising this waiver; and

(3) a plan to promote a full and accurate disclosure by Russia regarding the size, content,

status, and location of its chemical weapons stockpile.

(b) EXPIRATION OF AUTHORITY.—The authority under paragraph (a) shall expire January 31,

2004.

(3) A certification that Russia and the United States have

signed a verifiable written transparency agreement that ensures that material stored at the facility is of weapons origin.

SEC. 1305. 1 ø22 U.S.C. 5952 note¿ LIMITATION ON USE OF FUNDS FOR

CHEMICAL WEAPONS DESTRUCTION.

No fiscal year 2000 Cooperative Threat Reduction funds, and

no funds appropriated for Cooperative Threat Reduction programs

after the date of the enactment of this Act, may be obligated or expended for planning, design, or construction of a chemical weapons

destruction facility in Russia until the Secretary of Defense submits to Congress a certification that there has been—

(1) information provided by Russia, that the United States

assesses to be full and accurate, regarding the size of the

chemical weapons stockpile of Russia;

(2) a demonstrated annual commitment by Russia to allocate at least $25,000,000 to chemical weapons elimination;

(3) development by Russia of a practical plan for destroying its stockpile of nerve agents;

(4) enactment of a law by Russia that provides for the

elimination of all nerve agents at a single site;

(5) an agreement by Russia to destroy or convert its chemical weapons production facilities at Volgograd and

Novocheboksark; and

(6) a demonstrated commitment from the international

community to fund and build infrastructure needed to support

and operate the facility.

SEC. 1306. LIMITATION ON USE OF FUNDS UNTIL SUBMISSION OF REPORT.

Not more than 50 percent of the fiscal year 2000 Cooperative

Threat Reduction funds may be obligated or expended until the

Secretary of Defense submits to Congress a report describing—

(1) with respect to each purpose listed in section 1302,

whether the Department of Defense is the appropriate executive agency to carry out Cooperative Threat Reduction programs for such purpose, and if so, why; and

(2) for any purpose that the Secretary determines is not

appropriately carried out by the Department of Defense, a plan

for migrating responsibility for carrying out such purpose to

the appropriate agency.
655 FY99 RELATIONS WITH FOREIGN COUNTRIES

SEC. 1307. LIMITATION ON USE OF FUNDS UNTIL SUBMISSION OF

MULTIYEAR PLAN.

[Repealed by section 1308(g)(1)(D) of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 (as enacted

by Public Law 106–398; 114 Stat. 1654A–343)]

* * * * * * *

g. Strom Thurmond National Defense Authorization Act for

Fiscal Year 1999

(Public Law 105–261, approved Oct. 17, 1998)

TITLE XII—MATTERS RELATING TO OTHER NATIONS

* * * * * * *

Subtitle C—Matters Relating to NATO and Europe

SEC. 1221. ø22 U.S.C. 1928¿ LIMITATION ON UNITED STATES SHARE OF

COSTS OF NATO EXPANSION.

(a) LIMITATION.—The United States share of defined NATO expansion costs may not exceed the lesser of—

(1) the amount equal to 25 percent of those costs; or

(2) $2,000,000,000.

(b) DEFINED NATO EXPANSION COSTS.—For purposes of subsection (a), the term ‘‘defined NATO expansion costs’’ means the

commonly funded costs of the North Atlantic Treaty Organization

(NATO) during fiscal years 1999 through 2011 for enlargement of

NATO due to the admission to NATO of Poland, Hungary, and the

Czech Republic.

* * * * * * *

Subtitle D—Other Matters

SEC. 1231. ø10 U.S.C. 405 note¿ LIMITATION ON ASSIGNMENT OF

UNITED STATES FORCES FOR CERTAIN UNITED NATIONS

PURPOSES.

(a) LIMITATION ON PARTICIPATION IN UNITED NATIONS RAPIDLY

DEPLOYABLE MISSION HEADQUARTERS.—If members of the Armed

Forces are assigned during fiscal year 1999 to the United Nations

Rapidly Deployable Mission Headquarters, the number of members

so assigned may not exceed eight at any time during that year.

(b) PROHIBITION.—No funds available to the Department of Defense may be used—

(1) for a monetary contribution to the United Nations for

the establishment of a standing international force under the

United Nations; or

(2) to assign or detail any member of the Armed Forces to

duty with a United Nations Stand By Force.

SEC. 1232. ø10 U.S.C. 111 note¿ PROHIBITION ON RESTRICTION OF

ARMED FORCES UNDER KYOTO PROTOCOL TO THE

UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE.

(a) IN GENERAL.—Notwithstanding any other provision of law,

no provision of the Kyoto Protocol to the United Nations Frame-
FY99 RELATIONS WITH FOREIGN COUNTRIES 656

work Convention on Climate Change, or any regulation issued pursuant to such protocol, shall restrict the training or operations of

the United States Armed Forces or limit the military equipment

procured by the United States Armed Forces.

(b) WAIVER.—A provision of law may not be construed as modifying or superseding the provisions of subsection (a) unless that

provision of law—

(1) specifically refers to this section; and

(2) specifically states that such provision of law modifies or

supersedes the provisions of this section.

(c) MATTERS NOT AFFECTED.—Nothing in this section shall be

construed to preclude the Department of Defense from implementing any measure to achieve efficiencies or for any other reason

independent of the Kyoto Protocol.

* * * * * * *

SEC. 1237. ø50 U.S.C. 1701 note¿ APPLICATION OF AUTHORITIES UNDER

THE INTERNATIONAL EMERGENCY ECONOMIC POWERS

ACT TO COMMUNIST CHINESE MILITARY COMPANIES.

(a) PRESIDENTIAL AUTHORITY.—

(1) IN GENERAL.—The President may exercise IEEPA authorities (other than authorities relating to importation) without regard to section 202 of the International Emergency Economic Powers Act (50 U.S.C. 1701) in the case of any commercial activity in the United States by a person that is on the list

published under subsection (b).

(2) PENALTIES.—The penalties set forth in section 206 of

the International Emergency Economic Powers Act (50 U.S.C.

1705) apply to violations of any license, order, or regulation

issued under paragraph (1).

(3) IEEPA AUTHORITIES.—For purposes of paragraph (1),

the term ‘‘IEEPA authorities’’ means the authorities set forth

in section 203(a) of the International Emergency Economic

Powers Act (50 U.S.C. 1702(a)).

(b) DETERMINATION AND REPORTING OF COMMUNIST CHINESE

MILITARY COMPANIES OPERATING IN UNITED STATES.— (1) INITIAL DETERMINATION AND REPORTING.—Not later

than March 1, 2001, the Secretary of Defense shall make a determination of those persons operating directly or indirectly in

the United States or any of its territories and possessions that

are Communist Chinese military companies and shall submit

a list of those persons in classified and unclassified form to the

following:

(A) The Committee on Armed Services of the House of

Representatives.

(B) The Committee on Armed Services of the Senate.

(C) The Secretary of State.

(D) The Secretary of the Treasury.

(E) The Attorney General.

(F) The Secretary of Commerce.

(G) The Secretary of Energy.

(H) The Director of Central Intelligence.

(2) ANNUAL REVISIONS TO THE LIST.—The Secretary of Defense shall make additions or deletions to the list submitted
657 FY99 COOPERATIVE THREAT REDUCTION

under paragraph (1) on an annual basis based on the latest information available and shall submit the updated list not later

than February 1, each year to the committees and officers

specified in paragraph (1).

(3) CONSULTATION.—The Secretary of Defense shall consult

with the following officers in carrying out paragraphs (1) and

(2):

(A) The Attorney General.

(B) The Director of Central Intelligence.

(C) The Director of the Federal Bureau of Investigation.

(4) COMMUNIST CHINESE MILITARY COMPANY.—For purposes

of making the determination required by paragraph (1) and of

carrying out paragraph (2), the term ‘‘Communist Chinese military company’’ means—

(A) any person identified in the Defense Intelligence

Agency publication numbered VP–1920–271–90, dated

September 1990, or PC–1921–57–95, dated October 1995,

and any update of those publications for the purposes of

this section; and

(B) any other person that—

(i) is owned or controlled by the People’s Liberation Army; and

(ii) is engaged in providing commercial services,

manufacturing, producing, or exporting.

(c) PEOPLE’S LIBERATION ARMY.—For purposes of this section,

the term ‘‘People’s Liberation Army’’ means the land, naval, and air

military services, the police, and the intelligence services of the

Communist Government of the People’s Republic of China, and any

member of any such service or of such police.

TITLE XIII—COOPERATIVE THREAT REDUCTION WITH

STATES OF THE FORMER SOVIET UNION

* * * * * * *

SEC. 1304. ø22 U.S.C. 5952 note¿ LIMITATION ON USE OF FUNDS FOR

CHEMICAL WEAPONS DESTRUCTION ACTIVITIES IN RUSSIA.

(a) LIMITATION.—Subject to the limitation in section 1405(b) of

the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105–85; 111 Stat. 1961), no funds authorized to be appropriated for Cooperative Threat Reduction programs under this Act

or any other Act may be obligated or expended for chemical weapons destruction activities in Russia (including activities for the

planning, design, or construction of a chemical weapons destruction

facility or for the dismantlement of an existing chemical weapons

production facility) until the President submits to Congress a written certification described in subsection (b).

(b) PRESIDENTIAL CERTIFICATION.—A certification under this

subsection is either of the following certifications by the President:

(1) A certification that—

(A) Russia is making reasonable progress toward the

implementation of the Bilateral Destruction Agreement;
FY99 COOPERATIVE THREAT REDUCTION 658

(B) the United States and Russia have made substantial progress toward the resolution, to the satisfaction of

the United States, of outstanding compliance issues under

the Wyoming Memorandum of Understanding and the Bilateral Destruction Agreement; and

(C) Russia has fully and accurately declared all information regarding its unitary and binary chemical weapons, chemical weapons facilities, and other facilities associated with chemical weapons.

(2) A certification that the national security interests of

the United States could be undermined by a policy of the

United States not to carry out chemical weapons destruction

activities under Cooperative Threat Reduction programs for

which funds are authorized to be appropriated under this Act

or any other Act for fiscal year 1999.

(c) DEFINITIONS.—In this section:

(1) The term ‘‘Bilateral Destruction Agreement’’ means the

Agreement Between the United States of America and the

Union of Soviet Socialist Republics on Destruction and Nonproduction of Chemical Weapons and on Measures to Facilitate

the Multilateral Convention on Banning Chemical Weapons

signed on June 1, 1990.

(2) The term ‘‘Wyoming Memorandum of Understanding’’

means the Memorandum of Understanding Between the Government of the United States of America and the Government

of the Union of Soviet Socialist Republics Regarding a Bilateral

Verification Experiment and Data Exchange Related to Prohibition on Chemical Weapons, signed at Jackson Hole, Wyoming, on September 23, 1989.

* * * * * * *

SEC. 1307. ø22 U.S.C. 5952 note¿ REQUIREMENT TO SUBMIT SUMMARY

OF AMOUNTS REQUESTED BY PROJECT CATEGORY.

(a) SUMMARY REQUIRED.—The Secretary of Defense shall submit to Congress as part of the Secretary’s annual budget request

to Congress—

(1) a descriptive summary, with respect to the appropriations requested for Cooperative Threat Reduction programs for

the fiscal year after the fiscal year in which the summary is

submitted, of the amounts requested for each project category

under each Cooperative Threat Reduction program element;

and

(2) a descriptive summary, with respect to appropriations

for Cooperative Threat Reduction programs for the fiscal year

in which the list is submitted and the previous fiscal year, of

the amounts obligated or expended, or planned to be obligated

or expended, for each project category under each Cooperative

Threat Reduction program element.

(b) DESCRIPTION OF PURPOSE AND INTENT.—The descriptive

summary required under subsection (a) shall include a narrative

description of each program and project category under each Coop-
659 FY97 RELATIONS WITH FOREIGN COUNTRIES

erative Threat Reduction program element that explains the purpose and intent of the funds requested.

* * * * * * *

h. National Defense Authorization Act for Fiscal Year 1997

(Public Law 104–201, approved Sept. 23, 1996)

TITLE X—GENERAL PROVISIONS

* * * * * * *

Subtitle F—Other Matters

* * * * * * *

SEC. 1082. ø10 U.S.C. 168 note¿ AGREEMENTS FOR EXCHANGE OF DEFENSE PERSONNEL BETWEEN THE UNITED STATES AND

FOREIGN COUNTRIES.

(a) AUTHORITY TO ENTER INTO INTERNATIONAL EXCHANGE

AGREEMENTS.—(1) The Secretary of Defense may enter into international defense personnel exchange agreements.

(2) For purposes of this section, an international defense personnel exchange agreement is an agreement with the government

of an ally of the United States or another friendly foreign country

for the exchange of—

(A) military and civilian personnel of the Department of

Defense; and

(B) military and civilian personnel of the defense ministry

of that foreign government.

(b) ASSIGNMENT OF PERSONNEL.—(1) Pursuant to an international defense personnel exchange agreement, personnel of the

defense ministry of a foreign government may be assigned to positions in the Department of Defense and personnel of the Department of Defense may be assigned to positions in the defense ministry of such foreign government. Positions to which exchanged personnel are assigned may include positions of instructors.

(2) An agreement for the exchange of personnel engaged in research and development activities may provide for assignment of

Department of Defense personnel to positions in private industry

that support the defense ministry of the host foreign government.

(3) An individual may not be assigned to a position pursuant

to an international defense personnel exchange agreement unless

the assignment is acceptable to both governments.

(c) RECIPROCITY OF PERSONNEL QUALIFICATIONS REQUIRED.—

Each government shall be required under an international defense

personnel exchange agreement to provide personnel with qualifications, training, and skills that are essentially equal to those of the

personnel provided by the other government.

(d) PAYMENT OF PERSONNEL COSTS.—(1) Each government

shall pay the salary, per diem, cost of living, travel costs, cost of

language or other training, and other costs for its own personnel

in accordance with the applicable laws and regulations of such government.

(2) Paragraph (1) does not apply to the following costs:
FY97 COOPERATIVE THREAT REDUCTION 660

(A) The cost of temporary duty directed by the host government.

(B) The cost of training programs conducted to familiarize,

orient, or certify exchanged personnel regarding unique aspects

of the assignments of the exchanged personnel.

(C) Costs incident to the use of the facilities of the host

government in the performance of assigned duties.

(e) PROHIBITED CONDITIONS.—No personnel exchanged pursuant to an agreement under this section may take or be required to

take an oath of allegiance to the host country or to hold an official

capacity in the government of such country.

(f) RELATIONSHIP TO OTHER AUTHORITY.—The requirements in

subsections (c) and (d) shall apply in the exercise of any authority

of the Secretaries of the military departments to enter into an

agreement with the government of a foreign country to provide for

the exchange of members of the armed forces and military personnel of the foreign country. The Secretary of Defense may prescribe regulations for the application of such subsections in the exercise of such authority.

* * * * * * *

TITLE XV—COOPERATIVE THREAT REDUCTION WITH

STATES OF FORMER SOVIET UNION

SEC. 1501. ø50 U.S.C. 2362 note¿ SPECIFICATION OF COOPERATIVE

THREAT REDUCTION PROGRAMS.

(a) IN GENERAL.—For purposes of section 301 and other provisions of this Act, Cooperative Threat Reduction programs are the

programs specified in subsection (b).

(b) SPECIFIED PROGRAMS.—The programs referred to in subsection (a) are the following programs with respect to states of the

former Soviet Union:

(1) Programs to facilitate the elimination, and the safe and

secure transportation and storage, of nuclear, chemical, and

other weapons and their delivery vehicles.

(2) Programs to facilitate the safe and secure storage of

fissile materials derived from the elimination of nuclear

weapons.

(3) Programs to prevent the proliferation of weapons,

weapons components, materials, and weapons-related technology and expertise.

(4) Programs to expand military-to-military and defense

contacts.
661 FY96 COOPERATIVE THREAT REDUCTION

i. National Defense Authorization Act for Fiscal Year 1996

(Public Law 104–106, approved Feb. 10, 1996)

TITLE XII—COOPERATIVE THREAT REDUCTION WITH

STATES OF FORMER SOVIET UNION

SEC. 1201. ø22 U.S.C. 5955 note¿ SPECIFICATION OF COOPERATIVE

THREAT REDUCTION PROGRAMS.

(a) IN GENERAL.—For purposes of section 301 and other provisions of this Act, Cooperative Threat Reduction programs are the

programs specified in subsection (b).

(b) SPECIFIED PROGRAMS.—The programs referred to in subsection (a) are the following programs with respect to states of the

former Soviet Union:

(1) Programs to facilitate the elimination, and the safe and

secure transportation and storage, of nuclear, chemical, and

other weapons, fissile material suitable for use in nuclear

weapons, and their delivery vehicles.

(2) Programs to facilitate the safe and secure storage of

fissile materials derived from the elimination of nuclear weapons.

(3) Programs to prevent the proliferation of weapons,

weapons components, and weapons-related technology and expertise.

(4) Programs to expand military-to-military and defense

contacts.

* * * * * * *

SEC. 1205. ø22 U.S.C. 5955 note¿ PRIOR NOTICE TO CONGRESS OF OBLIGATION OF FUNDS.

(a) ANNUAL REQUIREMENT.—(1) Not less than 15 days before

any obligation of any funds appropriated for any fiscal year for a

program specified under section 1201 as a Cooperative Threat Reduction program, the Secretary of Defense shall submit to the congressional committees specified in paragraph (2) a report on that

proposed obligation for that program for that fiscal year.

(2) The congressional committees referred to in paragraph (1)

are the following:

(A) The Committee on Armed Services, the Committee on

Foreign Relations, and the Committee on Appropriations of the

Senate.

(B) The Committee on Armed Services, the Committee on

International Relations, and the Committee on Appropriations

of the House of Representatives.

(b) MATTERS TO BE SPECIFIED IN REPORTS.—Each such report

shall specify—

(1) the activities and forms of assistance for which the Secretary of Defense plans to obligate funds;

(2) the amount of the proposed obligation; and

(3) the projected involvement (if any) of any department or

agency of the United States (in addition to the Department of

Defense) and of the private sector of the United States in the

activities and forms of assistance for which the Secretary of

Defense plans to obligate such funds.
FY96 RELATIONS WITH FOREIGN COUNTRIES 662

SEC. 1206. ø22 U.S.C. 5955 note ¿ REPORT ON ACCOUNTING FOR UNITED

STATES ASSISTANCE.

[Repealed by section 1308(g)(1)(C) of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 (as enacted

by Public Law 106–398; 114 Stat. 1654A–343)]

* * * * * * *

TITLE XIII—MATTERS RELATING TO OTHER NATIONS

* * * * * * *

SEC. 1323. ø50 U.S.C. APP. 2404 note¿ DEPARTMENT OF DEFENSE REVIEW OF EXPORT LICENSES FOR CERTAIN BIOLOGICAL

PATHOGENS.

(a) DEPARTMENT OF DEFENSE REVIEW.—Any application to the

Secretary of Commerce for a license for the export of a class 2,

class 3, or class 4 biological pathogen to a country identified to the

Secretary under subsection (c) as a country that is known or suspected to have a biological weapons program shall be referred to

the Secretary of Defense for review. The Secretary of Defense shall

notify the Secretary of Commerce within 15 days after receipt of an

application under the preceding sentence whether the export of

such biological pathogen pursuant to the license would be contrary

to the national security interests of the United States.

(b) DENIAL OF LICENSE IF CONTRARY TO NATIONAL SECURITY

INTEREST.—A license described in subsection (a) shall be denied by

the Secretary of Commerce if it is determined that the export of

such biological pathogen to that country would be contrary to the

national security interests of the United States.

(c) IDENTIFICATION OF COUNTRIES KNOWN OR SUSPECTED TO

HAVE A PROGRAM TO DEVELOP OFFENSIVE BIOLOGICAL WEAPONS.—

(1) The Secretary of Defense shall determine, for the purposes of

this section, those countries that are known or suspected to have

a program to develop offensive biological weapons. Upon making

such determination, the Secretary shall provide to the Secretary of

Commerce a list of those countries.

(2) The Secretary of Defense shall update the list under paragraph (1) on a regular basis. Whenever a country is added to or deleted from such list, the Secretary shall notify the Secretary of

Commerce.

(3) Determination under this subsection of countries that are

known or suspected to have a program to develop offensive biological weapons shall be made in consultation with the Secretary of

State and the intelligence community.

(d) DEFINITION.—For purposes of this section, the term ‘‘class

2, class 3, or class 4 biological pathogen’’ means any biological

pathogen that is characterized by the Centers for Disease Control

as a class 2, class 3, or class 4 biological pathogen.

* * * * * * *

Subtitle E—Other Matters

* * * * * * *
663 FY96 RELATIONS WITH FOREIGN COUNTRIES

SEC. 1342. ø18 U.S.C. 3181 note¿ JUDICIAL ASSISTANCE TO THE INTERNATIONAL TRIBUNAL FOR YUGOSLAVIA AND TO THE

INTERNATIONAL TRIBUNAL FOR RWANDA.

(a) SURRENDER OF PERSONS.—

(1) APPLICATION OF UNITED STATES EXTRADITION LAWS.—

Except as provided in paragraphs (2) and (3), the provisions of

chapter 209 of title 18, United States Code, relating to the extradition of persons to a foreign country pursuant to a treaty

or convention for extradition between the United States and a

foreign government, shall apply in the same manner and extent to the surrender of persons, including United States citizens, to—

(A) the International Tribunal for Yugoslavia, pursuant to the Agreement Between the United States and the

International Tribunal for Yugoslavia; and

(B) the International Tribunal for Rwanda, pursuant

to the Agreement Between the United States and the

International Tribunal for Rwanda.

(2) EVIDENCE ON HEARINGS.—For purposes of applying section 3190 of title 18, United States Code, in accordance with

paragraph (1), the certification referred to in that section may

be made by the principal diplomatic or consular officer of the

United States resident in such foreign countries where the

International Tribunal for Yugoslavia or the International Tribunal for Rwanda may be permanently or temporarily

situated.

(3) PAYMENT OF FEES AND COSTS.—(A) The provisions of

the Agreement Between the United States and the International Tribunal for Yugoslavia and of the Agreement Between the United States and the International Tribunal for

Rwanda shall apply in lieu of the provisions of section 3195 of

title 18, United States Code, with respect to the payment of expenses arising from the surrender by the United States of a

person to the International Tribunal for Yugoslavia or the

International Tribunal for Rwanda, respectively, or from any

proceedings in the United States relating to such surrender.

(B) The authority of subparagraph (A) may be exercised

only to the extent and in the amounts provided in advance in

appropriations Acts.

(4) NONAPPLICABILITY OF THE FEDERAL RULES.—The Federal Rules of Evidence and the Federal Rules of Criminal Procedure do not apply to proceedings for the surrender of persons

to the International Tribunal for Yugoslavia or the International Tribunal for Rwanda.

(b) ASSISTANCE TO FOREIGN AND INTERNATIONAL TRIBUNALS

AND TO LITIGANTS BEFORE SUCH TRIBUNALS.—Section 1782(a) of

title 28, United States Code, is amended by inserting in the first

sentence after ‘‘foreign or international tribunal’’ the following: ‘‘,

including criminal investigations conducted before formal

accusation’’.

(c) DEFINITIONS.—For purposes of this section:

(1) INTERNATIONAL TRIBUNAL FOR YUGOSLAVIA.—The term

‘‘International Tribunal for Yugoslavia’’ means the International Tribunal for the Prosecution of Persons Responsible
FY95 RELATIONS WITH FOREIGN COUNTRIES 664

for Serious Violations of International Humanitarian Law in

the Territory of the Former Yugoslavia, as established by

United Nations Security Council Resolution 827 of May 25,

1993.

(2) INTERNATIONAL TRIBUNAL FOR RWANDA.—The term

‘‘International Tribunal for Rwanda’’ means the International

Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and

Rwandan Citizens Responsible for Genocide and Other Such

Violations Committed in the Territory of Neighboring States,

as established by United Nations Security Council Resolution

955 of November 8, 1994.

(3) AGREEMENT BETWEEN THE UNITED STATES AND THE

INTERNATIONAL TRIBUNAL FOR YUGOSLAVIA.—The term ‘‘Agreement Between the United States and the International Tribunal for Yugoslavia’’ means the Agreement on Surrender of

Persons Between the Government of the United States and the

International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law in the Territory of the Former Yugoslavia, signed at The Hague, October

5, 1994.

(4) AGREEMENT BETWEEN THE UNITED STATES AND THE

INTERNATIONAL TRIBUNAL FOR RWANDA.—The term ‘‘Agreement

between the United States and the International Tribunal for

Rwanda’’ means the Agreement on Surrender of Persons Between the Government of the United States and the International Tribunal for the Prosecution of Persons Responsible

for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and

Rwandan Citizens Responsible for Genocide and Other Such

Violations Committed in the Territory of Neighboring States,

signed at The Hague, January 24, 1995.

j. National Defense Authorization Act for Fiscal Year 1995

(Public Law 103–337, approved Oct. 5, 1994)

TITLE XIII—MATTERS RELATING TO ALLIES AND OTHER

NATIONS

TITLE XIII—MATTERS RELATING TO ALLIES AND OTHER

NATIONS

Subtitle A—Matters Relating to NATO

* * * * * * *

SEC. 1306. GEORGE C. MARSHALL EUROPEAN CENTER FOR SECURITY

STUDIES.

(a) USE OF CONTRIBUTIONS.—Funds received by the United

States Government from the Federal Republic of Germany as its

fair share of the costs of the George C. Marshall European Center

for Security Studies shall be credited to appropriations available to

the Department of Defense for the George C. Marshall European
665 FY95 RELATIONS WITH FOREIGN COUNTRIES

Center for Security Studies. Funds so credited shall be merged

with the appropriations to which credited and shall be available for

the Center for the same purposes and the same period as the appropriations with which merged.

(b) WAIVER OF CHARGES.—(1) The Secretary of Defense may

waive reimbursement of the costs of conferences, seminars, courses

of instruction, or similar educational activities of the George C.

Marshall European Center for Security Studies for military officers

and civilian officials from states located in Europe or the territory

of the former Soviet Union if the Secretary determines that attendance by such personnel without reimbursement is in the national

security interest of the United States.

(2) Costs for which reimbursement is waived pursuant to paragraph (1) shall be paid from appropriations available for the Center.

* * * * * * *

Subtitle B—Matters Relating to Several Countries

SEC. 1313. ø22 U.S.C. 1928 note¿ COST-SHARING POLICY AND REPORT.

(a) POLICY.—It is the policy of the United States that the

North Atlantic Treaty Organization (NATO) allies should assist the

United States in paying the incremental costs incurred by the

United States for maintaining members of the Armed Forces in assignments to permanent duty ashore in European member nations

of NATO solely for support of NATO roles and missions.

(b) IMPLEMENTATION.—The President shall take all necessary

actions to ensure the effective implementation of the policy set

forth in subsection (a).

(c) REPORT.—The Secretary of Defense shall include in the annual report required by section 1002(d) of the Department of Defense Authorization Act, 1985 (22 U.S.C. 1928 note) the following:

(1) A description of the United States military forces assigned to permanent duty ashore in European member nations

of NATO and an analysis of the cost of providing and maintaining such forces in such assignment primarily for support of

NATO roles and missions.

(2) A description of the United States military forces assigned to permanent duty ashore in European member nations

of NATO primarily in support of other United States interests

in other regions of the world and an analysis of the cost of providing and maintaining such forces in such assignment primarily for that purpose.

(3) A specific enumeration and description of the offsets to

United States costs of providing and maintaining United

States military forces in Europe that the United States received from other NATO member nations in the fiscal year covered by the report, set out by country and by type of assistance, including both in-kind assistance and direct cash reimbursement, and the projected offsets for the five fiscal years

following the fiscal year covered by the report.

(d) INCREMENTAL COSTS DEFINED.—For purposes of subsection

(a), the definition provided for the term ‘‘incremental costs’’ in section 1046 of the National Defense Authorization Act for Fiscal
FY94 COOPERATIVE THREAT REDUCTION 666

Years 1992 and 1993, as added by subsection (e), shall apply with

respect to maintaining members of the Armed Forces in assignments to permanent duty ashore in European member nations of

NATO in the same manner as such term applies with respect to

permanent stationing ashore of United States forces in foreign nations for purposes of subsection (e)(4) of such section 1046.

(e) DEFINITION FOR REPORTING REQUIREMENT.—[Omitted—

Amendment]

* * * * * * *

k. Cooperative Threat Reduction Act of 1993

(Title XII of the National Defense Authorization Act for Fiscal Year 1994 (Public

Law 103–160, approved Nov. 30, 1993))

TITLE XII—COOPERATIVE THREAT REDUCTION WITH

STATES OF FORMER SOVIET UNION

SEC. 1201. SHORT TITLE.

This title may be cited as the ‘‘Cooperative Threat Reduction

Act of 1993’’.

SEC. 1202. ø22 U.S.C. 5951¿ FINDINGS ON COOPERATIVE THREAT REDUCTION.

The Congress finds that it is in the national security interest

of the United States for the United States to do the following:

(1) Facilitate, on a priority basis, the transportation, storage, safeguarding, and elimination of nuclear and other weapons of the independent states of the former Soviet Union,

including—

(A) the safe and secure storage of fissile materials derived from the elimination of nuclear weapons;

(B) the dismantlement of (i) intercontinental ballistic

missiles and launchers for such missiles, (ii) submarinelaunched ballistic missiles and launchers for such missiles,

and (iii) heavy bombers; and

(C) the elimination of chemical, biological and other

weapons capabilities.

(2) Facilitate, on a priority basis, the prevention of proliferation of weapons (and components of weapons) of mass destruction and destabilizing conventional weapons of the independent states of the former Soviet Union and the establishment of verifiable safeguards against the proliferation of such

weapons and components.

(3) Facilitate, on a priority basis, the prevention of diversion of weapons-related scientific expertise of the independent

states of the former Soviet Union to terrorist groups or third

world countries.

(4) Support (A) the demilitarization of the defense-related

industry and equipment of the independent states of the

former Soviet Union, and (B) the conversion of such industry

and equipment to civilian purposes and uses.
667 FY94 COOPERATIVE THREAT REDUCTION

(5) Expand military-to-military and defense contacts between the United States and the independent states of the

former Soviet Union.

SEC. 1203. ø22 U.S.C. 5952¿ AUTHORITY FOR PROGRAMS TO FACILITATE

COOPERATIVE THREAT REDUCTION.

(a) IN GENERAL.—Notwithstanding any other provision of law,

the President may conduct programs described in subsection (b) to

assist the independent states of the former Soviet Union in the demilitarization of the former Soviet Union. Any such program may

be carried out only to the extent that the President determines that

the program will directly contribute to the national security interests of the United States.

(b) AUTHORIZED PROGRAMS.—The programs referred to in subsection (a) are the following:

(1) Programs to facilitate the elimination, and the safe and

secure transportation and storage, of nuclear, chemical, and

other weapons and their delivery vehicles.

(2) Programs to facilitate the safe and secure storage of

fissile materials derived from the elimination of nuclear weapons.

(3) Programs to prevent the proliferation of weapons,

weapons components, and weapons-related technology and expertise.

(4) Programs to expand military-to-military and defense

contacts.

(5) Programs to facilitate the demilitarization of defense

industries and the conversion of military technologies and capabilities into civilian activities.

(6) Programs to assist in the environmental restoration of

former military sites and installations when such restoration is

necessary to the demilitarization or conversion programs authorized in paragraph (5).

(7) Programs to provide housing for former military personnel of the former Soviet Union released from military service in connection with the dismantlement of strategic nuclear

weapons, when provision of such housing is necessary for dismantlement of strategic nuclear weapons and when no other

funds are available for such housing.

(8) Other programs as described in section 212(b) of the

Soviet Nuclear Threat Reduction Act of 1991 (title II of Public

Law 102–228; 22 U.S.C. 2551 note) and section 1412(b) of the

Former Soviet Union Demilitarization Act of 1992 (title XIV of

Public Law 102–484; 22 U.S.C. 5901 et seq.).

(c) UNITED STATES PARTICIPATION.—The programs described in

subsection (b) should, to the extent feasible, draw upon United

States technology and expertise, especially from the private sector

of the United States.

(d) RESTRICTIONS.—Assistance authorized by subsection (a)

may not be provided to any independent state of the former Soviet

Union for any fiscal year unless the President certifies to Congress

for such fiscal year that the proposed recipient state is committed

to each of the following:

(1) Making substantial investment of its resources for dismantling or destroying its weapons of mass destruction, if such
FY94 COOPERATIVE THREAT REDUCTION 668

state has an obligation under a treaty or other agreement to

destroy or dismantle any such weapons.

(2) Foregoing any military modernization program that exceeds legitimate defense requirements and foregoing the replacement of destroyed weapons of mass destruction.

(3) Foregoing any use in new nuclear weapons of fissionable or other components of destroyed nuclear weapons.

(4) Facilitating United States verification of any weapons

destruction carried out under this title, section 1412(b) of the

Former Soviet Union Demilitarization Act of 1992 (title XIV of

Public Law 102–484; 22 U.S.C. 590(b)), or section 212(b) of the

Soviet Nuclear Threat Reduction Act of 1991 (title II of Public

Law 102–228; 22 U.S.C. 2551 note).

(5) Complying with all relevant arms control agreements.

(6) Observing internationally recognized human rights, including the protection of minorities.

SEC. 1204. ø22 U.S.C. 5953¿ DEMILITARIZATION ENTERPRISE FUND.

(a) DESIGNATION OF FUND.—The President is authorized to

designate a Demilitarization Enterprise Fund for the purposes of

this section. The President may designate as the Demilitarization

Enterprise Fund any organization that satisfies the requirements

of subsection (e).

(b) PURPOSE OF FUND.—The purpose of the Demilitarization

Enterprise Fund is to receive grants pursuant to this section and

to use the grant proceeds to provide financial support under programs described in subsection (b)(5) for demilitarization of industries and conversion of military technologies and capabilities into

civilian activities.

(c) GRANT AUTHORITY.—The President may make one or more

grants to the Demilitarization Enterprise Fund.

(d) RISK CAPITAL FUNDING OF DEMILITARIZATION.—The Demilitarization Enterprise Fund shall use the proceeds of grants received under this section to provide financial support in accordance

with subsection (b) through transactions as follows:

(1) Making loans.

(2) Making grants.

(3) Providing collateral for loan guaranties by the ExportImport Bank of the United States.

(4) Taking equity positions.

(5) Providing venture capital in joint ventures with United

States industry.

(6) Providing risk capital through any other form of transaction that the President considers appropriate for supporting

programs described in subsection (b)(5).

(e) ELIGIBLE ORGANIZATION.—An organization is eligible for

designation as the Demilitarization Enterprise Fund if the

organization—

(1) is a private, nonprofit organization;

(2) is governed by a board of directors consisting of private

citizens of the United States; and

(3) provides assurances acceptable to the President that it

will use grants received under this section to provide financial

support in accordance with this section.
669 FY94 COOPERATIVE THREAT REDUCTION

(f) OPERATIONAL PROVISIONS.—The following provisions of section 201 of the Support for East European Democracy (SEED) Act

of 1989 (Public Law 101–179; 22 U.S.C. 5421) shall apply with respect to the Demilitarization Enterprise Fund in the same manner

as such provisions apply to Enterprise Funds designated pursuant

to subsection (d) of such section:

(1) Subsection (d)(5), relating to the private character of

Enterprise Funds.

(2) Subsection (h), relating to retention of interest earned

in interest bearing accounts.

(3) Subsection (i), relating to use of United States private

venture capital.

(4) Subsection (k), relating to support from Executive agencies.

(5) Subsection (l), relating to limitation on payments to

Fund personnel.

(6) Subsections (m) and (n), relating to audits.

(7) Subsection (o), relating to record keeping requirements.

(8) Subsection (p), relating to annual reports.

In addition, returns on investments of the Demilitarization Enterprise Fund and other payments to the Fund may be reinvested in

projects of the Fund.

(g) EXPERIENCE OF OTHER ENTERPRISE FUNDS.—To the maximum extent practicable, the Board of Directors of the Demilitarization Enterprise Fund should adopt for that Fund practices

and procedures that have been developed by Enterprise Funds for

which funding has been made available pursuant to section 201 of

the Support for East European Democracy (SEED) Act of 1989

(Public Law 101–179; 22 U.S.C. 5421).

(h) CONSULTATION REQUIREMENT.—In the implementation of

this section, the Secretary of State and the Administrator of the

Agency for International Development shall be consulted to ensure

that the Articles of Incorporation of the Fund (including provisions

specifying the responsibilities of the Board of Directors of the

Fund), the terms of United States Government grant agreements

with the Fund, and United States Government oversight of the

Fund are, to the maximum extent practicable, consistent with the

Articles of Incorporation of, the terms of grant agreements with,

and the oversight of the Enterprise Funds established pursuant to

section 201 of the Support for East European Democracy (SEED)

Act of 1989 (22 U.S.C. 5421) and comparable provisions of law.

(i) INITIAL IMPLEMENTATION.—The Board of Directors of the

Demilitarization Enterprise Fund shall publish the first annual report of the Fund not later than January 31, 1995.

(j) TERMINATION OF DESIGNATION.—A designation of an organization as the Demilitarization Enterprise Fund under subsection

(a) shall be temporary. When making the designation, the President shall provide for the eventual termination of the designation.

SEC. 1205. ø22 U.S.C. 5954¿ FUNDING FOR FISCAL YEAR 1994.

(a) AUTHORIZATION OF APPROPRIATIONS.—Funds authorized to

be appropriated under section 301(21) shall be available for cooperative threat reduction with states of the former Soviet Union under

this title.
FY94 COOPERATIVE THREAT REDUCTION 670

(b) LIMITATIONS.—(1) Not more than $15,000,000 of the funds

referred to in subsection (a) may be made available for programs

authorized in subsection (b)(6) of section 1203.

(2) Not more than $20,000,000 of such funds may be made

available for programs authorized in subsection (b)(7) of section

1203.

(3) Not more than $40,000,000 of such funds may be made

available for grants to the Demilitarization Enterprise Fund designated pursuant to section 1204 and for related administrative expenses.

(c) AUTHORIZATION OF EXTENSION OF AVAILABILITY OF PRIOR

YEAR FUNDS.—To the extent provided in appropriations Acts, the

authority to transfer funds of the Department of Defense provided

in section 9110(a) of the Department of Defense Appropriations

Act, 1993 (Public Law 102–396; 106 Stat. 1928), and in section 108

of Public Law 102–229 (105 Stat. 1708) shall continue to be in effect during fiscal year 1994.

SEC. 1206. ø22 U.S.C. 5955¿ PRIOR NOTICE TO CONGRESS OF OBLIGATION OF FUNDS.

(a) NOTICE OF PROPOSED OBLIGATION.—Not less than 15 days

before obligation of any funds for programs under section 1203, the

President shall transmit to the appropriate congressional committees as defined in section 1208 a report on the proposed obligation.

Each such report shall specify—

(1) the activities and forms of assistance for which the

President plans to obligate such funds;

(2) the amount of the proposed obligation; and

(3) the projected involvement of the departments and agencies of the United States Government and the private sector of

the United States.

(b) REPORTS ON DEMILITARIZATION OR CONVERSION

PROJECTS.—Any report under subsection (a) that covers proposed

demilitarization or conversion projects under paragraph (5) or (6)

of section 1203(b) shall contain additional information to assist the

Congress in determining the merits of the proposed projects. Such

information shall include descriptions of—

(1) the facilities to be demilitarized;

(2) the types of activities conducted at those facilities and

of the types of nonmilitary activities planned for those facilities;

(3) the forms of assistance to be provided by the United

States Government and by the private sector of the United

States;

(4) the extent to which military activities and production

capability will consequently be eliminated at those facilities;

and

(5) the mechanisms to be established for monitoring

progress on those projects.

SEC. 1207. ø22 U.S.C. 5956¿ SEMIANNUAL REPORT.

øRepealed¿
671 FY94 COOPERATIVE THREAT REDUCTION

SEC. 1208. ø22 U.S.C. 5957¿ APPROPRIATE CONGRESSIONAL COMMITTEES DEFINED.

In this title, the term ‘‘appropriate congressional committees’’

means—

(1) the Committee on Foreign Relations of the Senate, the

Committee on Foreign Affairs of the House of Representatives,

and the Committees on Appropriations of the House and the

Senate, wherever the account, budget activity, or program is

funded from appropriations made under the international affairs budget function (150);

(2) the Committees on Armed Services and the Committees

on Appropriations of the Senate and the House of Representatives, wherever the account, budget activity, or program is

funded from appropriations made under the national defense

budget function (050); and

(3) the committee to which the specified activities of section 1203, if the subject of separate legislation, would be referred under the rules of the respective House of Congress.

SEC. 1209. ø22 U.S.C. 5958¿ AUTHORIZATION FOR ADDITIONAL FISCAL

YEAR 1993 ASSISTANCE TO THE INDEPENDENT STATES OF

THE FORMER SOVIET UNION.

(a) AUTHORIZATION OF APPROPRIATIONS.—There is hereby authorized to be appropriated for fiscal year 1993 for ‘‘Operation and

Maintenance, Defense Agencies’’ the additional sum of

$979,000,000, to be available for the purposes of providing assistance to the independent states of the former Soviet Union.

(b) AUTHORIZATION OF TRANSFER OF FUNDS.—The Secretary of

Defense may, to the extent provided in appropriations Acts, transfer from the account ‘‘Operation and Maintenance, Defense Agencies’’ for fiscal year 1993 a sum not to exceed the amount appropriated pursuant to the authorization in subsection (a) to—

(1) other accounts of the Department of Defense for the

purpose of providing assistance to the independent states of

the former Soviet Union; or

(2) appropriations available to the Department of State

and other agencies of the United States Government for the

purpose of providing assistance to the independent states of

the former Soviet Union for programs that the President determines will increase the national security of the United States.

(c) ADMINISTRATIVE PROVISIONS.—(1) Amounts transferred

under subsection (b) shall be available subject to the same terms

and conditions as the appropriations to which transferred.

(2) The authority to make transfers pursuant to this section is

in addition to any other transfer authority of the Department of

Defense.

(d) COORDINATION OF PROGRAMS.—The President shall coordinate the programs described in subsection (b) with those authorized in the other provisions of this title and in the provisions of the

Freedom for Russia and Emerging Eurasian Democracies and Open

Markets Support Act of 1992 (Public Law 102–511) so as to optimize the contribution such programs make to the national interests

of the United States.
Sec. 501 FREEDOM SUPPORT ACT 672

l. FREEDOM Support Act

(Freedom for Russia and Emerging Eurasian Democracies and Open Markets

Support Act of 1992; Public Law 102–511, approved Oct. 24, 1992)

TITLE V—NONPROLIFERATION AND DISARMAMENT

PROGRAMS AND ACTIVITIES

SEC. 501. ø22 U.S.C. 5851¿ FINDINGS.

The Congress finds that it is in the national security interest

of the United States—

(1) to facilitate, on a priority basis—

(A) the transportation, storage, safeguarding, and destruction of nuclear and other weapons of mass destruction

of the independent states of the former Soviet Union;

(B) the prevention of proliferation of weapons of mass

destruction and destabilizing conventional weapons of the

independent states, and the establishment of verifiable

safeguards against the proliferation of such weapons;

(C) the prevention of diversion of weapons-related scientific expertise of the former Soviet Union to terrorist

groups or third countries; and

(D) other efforts designed to reduce the military threat

from the former Soviet Union;

(2) to support the conversion of the massive defense-related industry and equipment of the independent states of the

former Soviet Union for civilian purposes and uses; and

(3) to expand military-to-military contacts between the

United States and the independent states.

SEC. 502. ø22 U.S.C. 5852¿ ELIGIBILITY.

Funds may be obligated for a fiscal year for assistance or other

programs or activities for an independent state of the former Soviet

Union under sections 503 and 504 only if the President has certified to the Congress, during that fiscal year, that such independent state is committed to—

(1) making a substantial investment of its resources for

dismantling or destroying such weapons of mass destruction, if

that independent state has an obligation under a treaty or

other agreement to destroy or dismantle any such weapons;

(2) forgoing any military modernization program that exceeds legitimate defense requirements and forgoing the replacement of destroyed weapons of mass destruction;

(3) forgoing any use in new nuclear weapons of fissionable

or other components of destroyed nuclear weapons; and

(4) facilitating United States verification of any weapons

destruction carried out under section 503(a) or 504(a) of this

Act or section 212 of the Soviet Nuclear Threat Reduction Act

of 1991 (title II of Public Law 102–228; 22 U.S.C. 2551 note).

SEC. 503. ø22 U.S.C. 5853¿ NONPROLIFERATION AND DISARMAMENT

ACTIVITIES IN THE INDEPENDENT STATES.

(a) AUTHORIZATION.—The President is authorized to promote

bilateral and multilateral nonproliferation and disarmament

activities—
673 Sec. 504 FREEDOM SUPPORT ACT

(1) by supporting the dismantlement and destruction of

nuclear, biological, and chemical weapons, their delivery systems, and conventional weapons of the independent states of

the former Soviet Union;

(2) by supporting bilateral and multilateral efforts to halt

the proliferation of nuclear, biological, and chemical weapons,

their delivery systems, related technologies, and other weapons

of the independent states, including activities such as—

(A) the storage, transportation, and safeguarding of

such weapons, and

(B) the purchase, barter, or other acquisition of such

weapons or materials derived from such weapons;

(3) by establishing programs for safeguarding against the

proliferation of nuclear, biological, chemical, and other weapons of the independent states;

(4) by establishing programs for preventing diversion of

weapons-related scientific and technical expertise of the independent states to terrorist groups or to third countries;

(5) by establishing science and technology centers in the

independent states for the purpose of engaging weapons scientists and engineers of the independent states (in particular

those who were previously involved in the design and production of nuclear, biological, and chemical weapons) in productive, nonmilitary undertakings; and

(6) by establishing programs for facilitating the conversion

of military technologies and capabilities and defense industries

of the former Soviet Union into civilian activities.

(b) FUNDING PRIORITIES.—Priority in carrying out this section

shall be given to the activities described in paragraphs (1) through

(5) of subsection (a).

(c) USE OF DEFENSE FUNDS.—

(1) AUTHORIZATION.—In recognition of the direct contributions to the national security interests of the United States of

the programs and activities authorized by subsection (a), the

President is authorized to make available for use in carrying

out those programs and activities, in addition to amounts otherwise available for such purposes, funds made available pursuant to sections 108 and 109 of Public Law 102–229 or under

the amendments made by section 506(a) of this Act.

(2) LIMITATION.—Funds described in paragraph (1) may

not be obligated for programs and activities under subsection

(a) unless the Director of the Office of Management and Budget has determined that expenditures during fiscal year 1993

pursuant to such obligation shall be counted against the defense category of the discretionary spending limits for that fiscal year (as defined in section 601(a)(2) of the Congressional

Budget Act of 1974) for purposes of part C of the Balanced

Budget and Emergency Deficit Control Act of 1985.

SEC. 504. ø22 U.S.C. 5854¿ NONPROLIFERATION AND DISARMAMENT

FUND.

(a) AUTHORIZATION.—The President is authorized to promote

bilateral and multilateral nonproliferation and disarmament

activities—
Sec. 505 FREEDOM SUPPORT ACT 674

(1) by supporting the dismantlement and destruction of

nuclear, biological, and chemical weapons, their delivery systems, and conventional weapons;

(2) by supporting bilateral and multilateral efforts to halt

the proliferation of nuclear, biological, and chemical weapons,

their delivery systems, related technologies, and other weapons, including activities such as—

(A) the storage, transportation, and safeguarding of

such weapons, and

(B) the purchase, barter, or other acquisition of such

weapons or materials derived from such weapons;

(3) by establishing programs for safeguarding against the

proliferation of nuclear, biological, chemical, and other weapons of the independent states of the former Soviet Union;

(4) by establishing programs for preventing diversion of

weapons-related scientific and technical expertise of the independent states to terrorist groups or to third countries;

(5) by establishing science and technology centers in the

independent states for the purpose of engaging weapons scientists and engineers of the independent states (in particular

those who were previously involved in the design and production of nuclear, biological, and chemical weapons) in productive, nonmilitary undertakings; and

(6) by establishing programs for facilitating the conversion

of military technologies and capabilities and defense industries

of the former Soviet Union into civilian activities.

(b) FUNDING PRIORITIES.—Priority in carrying out this section

shall be given to the activities described in paragraphs (1) through

(5) of subsection (a).

(c) USE OF SECURITY ASSISTANCE FUNDS.— (1) AUTHORIZATION.—In recognition of the direct contributions to the national security interests of the United States of

the programs and activities authorized by subsection (a), the

President is authorized to make available for use in carrying

out those programs and activities, in addition to amounts otherwise available for such purposes, up to $100,000,000 of security assistance funds for fiscal year 1993.

(2) DEFINITION.—As used in paragraph (1), the term ‘‘security assistance funds’’ means funds made available for assistance under chapter 4 of part II of the Foreign Assistance Act

of 1961 (relating to the Economic Support Fund) or assistance

under section 23 of the Arms Export Control Act (relating to

the ‘‘Foreign Military Financing Program’’).

(3) EXEMPTION FROM CERTAIN RESTRICTIONS.—Section

531(e) of the Foreign Assistance Act of 1961, and any provision

that corresponds to section 510 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act,

1991 (relating to the prohibition on financing exports of nuclear equipment, fuel, and technology), shall not apply with respect to funds used pursuant to this subsection.

SEC. 505. ø22 U.S.C. 5855¿ LIMITATIONS ON DEFENSE CONVERSION AUTHORITIES.

Notwithstanding any other provision of law (including any

other provision of this Act), funds may not be obligated in any fis-
675 Sec. 508 FREEDOM SUPPORT ACT

1The National Defense Authorization Act for Fiscal Year 1993 did enact amendments identical to the amendments referred to in section 506. See section 1421(a) of Public Law 102–484

(106 Stat. 2565).

cal year for purposes of facilitating the conversion of military technologies and capabilities and defense industries of the former Soviet Union into civilian activities, as authorized by sections

503(a)(6) and 504(a)(6) or any other provision of law, unless the

President has previously obligated in the same fiscal year an

amount equal to or greater than that amount of funds for defense

conversion and defense transition activities in the United States.

For purposes of this section, the term ‘‘defense conversion and defense transition activities in the United States’’ means those

United States Government funded programs whose primary purpose is to assist United States private sector defense workers,

United States companies that manufacture or otherwise provide

defense goods or services, or United States communities adversely

affected by reductions in United States defense spending, such as

programs funded through the Office of Economic Adjustment in the

Department of Defense or through the Economic Development Administration.

SEC. 506. SOVIET WEAPONS DESTRUCTION.

(a) øOmitted-Amendments¿

(b) øOmitted-Amendments¿

(c) ø22 U.S.C. 5856¿ AVOIDANCE OF DUPLICATIVE AMENDMENTS.—The amendments made by this section shall not be effective if the National Defense Authorization Act for Fiscal Year 1993

enacts an amendment to section 221(a) of the Soviet Nuclear

Threat Reduction Act of 1991 that authorizes the transfer of an

amount that is the same or greater than the amount that is authorized by the amendment made by subsection (a)(1) of this section and enacts amendments identical to those in subsections (a)(2)

and (b) of this section. If that Act enacts such amendments, sections 503 and 508 of this Act shall be deemed to apply with respect

to the funds made available under such amendments. 1

SEC. 507. ø22 U.S.C. 5857¿ WAIVER OF CERTAIN PROVISIONS.

(a) IN GENERAL.—Funds made available for fiscal year 1993

under sections 503 and 504 to provide assistance or otherwise carry

out programs and activities with respect to the independent states

of the former Soviet Union under those sections may be used notwithstanding any other provision of law, other than the provisions

cited in subsection (b).

(b) EXCEPTIONS.—Subsection (a) does not apply with respect

to—

(1) this title; and

(2) section 1341 of title 31, United States Code (commonly

referred to as the ‘‘Anti-Deficiency Act’’), the Congressional

Budget and Impoundment Control Act of 1974, the Balanced

Budget and Emergency Deficit Control Act of 1985, and the

Budget Enforcement Act of 1990.

SEC. 508. ø22 U.S.C. 5858¿ NOTICE AND REPORTS TO CONGRESS.

(a) NOTICE OF PROPOSED OBLIGATIONS.—Not less than 15 days

before obligating any funds under section 503 or 504 or the amend-
Sec. 509 FREEDOM SUPPORT ACT 676

ments made by section 506(a), the President shall transmit to the

Speaker of the House of Representatives, the President Pro Tempore of the Senate, and the appropriate congressional committees

a report on the proposed obligation. Each such report shall

specify—

(1) the account, budget activity, and particular program or

programs from which the funds proposed to be obligated are to

be derived and the amount of the proposed obligations; and

(2) the activities and forms of assistance for which the

President plans to obligate such funds.

(b) SEMIANNUAL REPORT.—Not later than April 30, 1993, and

not later than October 30, 1993, the President shall transmit to the

Speaker of the House of Representatives, the President Pro Tempore of the Senate, and the appropriate congressional committees

a report on the activities carried out under sections 503 and 504

and the amendments made by section 506(a). Each such report

shall set forth, for the preceding 6-month period and cumulatively,

the following:

(1) The amounts expended for such activities and the purposes for which they were expended.

(2) The source of the funds obligated for such activities,

specified by program.

(3) A description of the participation of all United States

Government departments and agencies in such activities.

(4) A description of the activities carried out and the forms

of assistance provided.

(5) Such other information as the President considers appropriate to fully inform the Congress concerning the operation

of the programs and activities carried out under sections 503

and 504 and the amendments made by section 506(a).

(c) APPROPRIATE CONGRESSIONAL COMMITTEES.—As used in

this section—

(1) the term ‘‘appropriate congressional committees’’

means—

(A) the Committee on Foreign Relations of the Senate,

the Committee on Foreign Affairs of the House of Representatives, and the Committees on Appropriations of the

House and the Senate, wherever the account, budget activity, or program is funded from appropriations made under

the international affairs budget function (150);

(B) the Committees on Armed Services and the Committees on Appropriations of the Senate and the House of

Representatives, wherever the account, budget activity, or

program is funded from appropriations made under the national defense budget function (050); and

(2) the committee to which the specified activities of section 503(a) or 504(a) or subtitle B of the Soviet Nuclear Threat

Reduction Act of 1991 (as the case may be), if the subject of

separate legislation, would be referred, under the rules of the

respective House of Congress.

SEC. 509. ø22 U.S.C. 5859¿ INTERNATIONAL NONPROLIFERATION INITIATIVE.

(a) ASSISTANCE FOR INTERNATIONAL NONPROLIFERATION ACTIVI- TIES.—Subject to the limitations and requirements provided in this
677 Sec. 509 FREEDOM SUPPORT ACT

section, during fiscal year 1993 the Secretary of Defense, under the

guidance of the President, may provide assistance to support international nonproliferation activities.

(b) ACTIVITIES FOR WHICH ASSISTANCE MAY BE PROVIDED.—

Activities for which assistance may be provided under this section

are activities such as the following:

(1) Activities carried out by the International Atomic Energy Agency (IAEA) that are designed to ensure more effective

safeguards against nuclear proliferation and more aggressive

verification of compliance with the Treaty on the Non-Proliferation of Nuclear Weapons, done on July 1, 1968.

(2) Activities of the On-Site Inspection Agency in support

of the United Nations Special Commission on Iraq.

(3) Collaborative international nuclear security and nuclear safety projects to combat the threat of nuclear theft, terrorism, or accidents, including joint emergency response exercises, technical assistance, and training.

(4) Efforts to improve international cooperative monitoring

of nuclear proliferation through joint technical projects and improved intelligence sharing.

(c) FORM OF ASSISTANCE.—(1) Assistance under this section

may include funds and in-kind contributions of supplies, equipment, personnel, training, and other forms of assistance.

(2) Assistance under this section may be provided to international organizations in the form of funds only if the amount in

the ‘‘Contributions to International Organizations’’ account of the

Department of State is insufficient or otherwise unavailable to

meet the United States fair share of assessments for international

nuclear nonproliferation activities.

(3) No amount may be obligated for an expenditure under this

section unless the Director of the Office of Management and Budget determines that the expenditure will be counted against the defense category of the discretionary spending limits for fiscal year

1993 (as defined in section 601(a)(2) of the Congressional Budget

Act of 1974) for purposes of part C of the Balanced Budget and

Emergency Deficit Control Act of 1985.

(4) No assistance may be furnished under this section unless

the Secretary of Defense determines and certifies to the Congress

30 days in advance that the provision of such assistance—

(A) is in the national security interest of the United States;

and

(B) will not adversely affect the military preparedness of

the United States.

(5) The authority to provide assistance under this section in

the form of funds may be exercised only to the extent and in the

amounts provided in advance in appropriations Act.

(d) SOURCES OF ASSISTANCE.—(1) Funds provided as assistance

under this section shall be derived from amounts made available

to the Department of Defense for fiscal year 1993 or from balances

in working capital accounts of the Department of Defense.

(2) Supplies and equipment provided as assistance under this

section may be provided, by loan or donation, from existing stocks

of the Department of Defense and the Department of Energy.
Sec. 510 FREEDOM SUPPORT ACT 678

(3) The total amount of the assistance provided in the form of

funds under this section may not exceed $40,000,000. Of such

amount, not more than $20,000,000 may be used for the activities

of the On-Site Inspection agency in support of the United Nations

Special Commission on Iraq.

(4) Not less than 30 days before obligating any funds to provide

assistance under this section, the Secretary of Defense shall transmit to the committees of Congress named in subsection (e)(2) a report on the proposed obligation. Each such report shall specify—

(A) the account, budget activity, and particular program or

programs from which the funds proposed to be obligated are to

be derived and the amount of the proposed obligation; and

(B) the activities and forms of assistance for which the

Secretary of Defense plans to obligate the funds.

(e) QUARTERLY REPORT.—(1) Not later than 30 days after the

end of each quarter of fiscal year 1993, the Secretary of Defense

shall transmit to the committees of Congress named in paragraph

(2) a report of the activities to reduce the proliferation threat carried out under this section. Each report shall set forth (for the preceding quarter and cumulatively)—

(A) the amounts spent for such activities and the purposes

for which they were spent;

(B) a description of the participation of the Department of

Defense and the Department of Energy and the participation

of other Government agencies in those activities; and

(C) a description of the activities for which the funds were

spent.

(2) The committees of Congress to which reports under paragraph (1) and under subsection (d)(2) are to be transmitted are—

(A) the Committee on Armed Services, the Committee on

Appropriations, and the Committee on Foreign Relations of the

Senate; and

(B) the Committee on Armed Services, the Committee on

Appropriations, the Committee on Foreign Affairs, and the

Committee on Energy and Commerce of the House of Representatives.

(f) AVOIDANCE OF DUPLICATIVE AUTHORIZATIONS.—This section

shall not apply if the National Defense Authorization Act for Fiscal

Year 1993 enacts the same authorities and requirements as are

contained in this section and authorizes the appropriation of the

same (or a greater) amount to carry out such authorities.

SEC. 510. ø22 U.S.C. 5860¿ REPORT ON SPECIAL NUCLEAR MATERIALS.

Not later than 180 days after the date of enactment of this Act,

the Secretary of State shall prepare, in consultation with the Secretary of Defense and the Secretary of Energy, and shall transmit

to the Congress a report on the possible alternatives for the ultimate disposition of special nuclear materials of the former Soviet

Union. This report shall include—

(1) a cost-benefit analysis comparing (A) the relative merits of the indefinite storage and safeguarding of such materials

in the independent states of the former Soviet Union and (B)

its acquisition by the United States by purchase, barter, or

other means;
679 Sec. 511 FREEDOM SUPPORT ACT

(2) a discussion of relevant issues such as the protection of

United States uranium producers from dumping, the relative

vulnerability of these stocks of special nuclear materials to illegal proliferation, and the potential electrical and other savings

associated with their being made available in the fuel cycle in

the United States; and

(3) a discussion of how highly enriched uranium stocks

could be diluted for reactor fuel.

SEC. 511. ø22 U.S.C. 5861¿ RESEARCH AND DEVELOPMENT FOUNDATION.

(a) ESTABLISHMENT.—The Director of the National Science

Foundation (hereinafter in this section referred to as the ‘‘Director’’) is authorized to establish an endowed, nongovernmental, nonprofit foundation (hereinafter in this section referred to as the

‘‘Foundation’’) in consultation with the Director of the National Institute of Standards and Technology.

(b) PURPOSES.—The purposes of the Foundation shall be the

following:

(1) To provide productive research and development opportunities within the independent states of the former Soviet

Union that offer scientists and engineers alternatives to emigration and help prevent the dissolution of the technological infrastructure of the independent states.

(2) To advance defense conversion by funding civilian collaborative research and development projects between scientists and engineers in the United States and in the independent states of the former Soviet Union.

(3) To assist in the establishment of a market economy in

the independent states of the former Soviet Union by promoting, identifying, and partially funding joint research, development, and demonstration ventures between United States

businesses and scientists, engineers, and entrepreneurs in

those independent states.

(4) To provide a mechanism for scientists, engineers, and

entrepreneurs in the independent states of the former Soviet

Union to develop an understanding of commercial business

practices by establishing linkages to United States scientists,

engineers, and businesses.

(5) To provide access for United States businesses to sophisticated new technologies, talented researchers, and potential new markets within the independent states of the former

Soviet Union.

(c) FUNCTIONS.—In carrying out its purposes, the Foundation

shall—

(1) promote and support joint research and development

projects for peaceful purposes between scientists and engineers

in the United States and independent states of the former Soviet Union on subjects of mutual interest; and

(2) seek to establish joint nondefense industrial research,

development, and demonstration activities through private sector linkages which may involve participation by scientists and

engineers in the university or academic sectors, and which

shall include some contribution from industrial participants.

(d) FUNDING.—
Sec. 511 FREEDOM SUPPORT ACT 680

(1) USE OF CERTAIN DEPARTMENT OF DEFENSE FUNDS.—(A)

To the extent funds appropriated to carry out subtitle E of title

XIV of the National Defense Authorization Act for Fiscal Year

1993 (relating to joint research and development programs

with the independent states of the former Soviet Union) are

otherwise available for such purpose, such funds may be made

available to the Director for use by the Director in establishing

the endowment of the Foundation and otherwise carrying out

this section.

(B) For each fiscal year after fiscal year 1993, not more

than 50 percent of the funds made available to the Foundation

by the United States Government may be funds appropriated

in the national defense budget function (function 050).

(2) CONTRIBUTION TO ENDOWMENT BY PARTICIPATING INDEPENDENT STATES.—As a condition of participation in the Foundation, an independent state of the former Soviet Union must

make a minimum contribution to the endowment of the Foundation, as determined by the Director, which shall reflect the

ability of the independent state to make a financial contribution and its expected level of participation in the Foundation’s

programs.

(3) DEBT CONVERSIONS.—To the extent provided in advance

by appropriations Acts, local currencies or other assets resulting from government-to-government debt conversions may be

made available to the Foundation. For purposes of this paragraph, the term ‘‘debt conversion’’ means an agreement whereby a country’s government-to-government or commercial external debt burden is exchanged by the holder for local currencies,

policy commitments, other assets, or other economic activities,

or for an equity interest in an enterprise theretofore owned by

the debtor government.

(4) LOCAL CURRENCIES.—In addition to other uses provided

by law, and subject to agreement with the foreign government,

local currencies generated by United States assistance programs may be made available to the Foundation.

(5) INVESTMENT OF GOVERNMENT ASSISTANCE.—The Foundation may invest any revenue provided to it through United

States Government assistance, and any interest earned on

such investment may be used only for the purpose for which

the assistance was provided.

(6) OTHER FUNDS FROM GOVERNMENT AND NONGOVERNMENTAL SOURCES.—The Foundation may accept such other

funds as may be provided to it by Government agencies or nongovernmental entities.
681 TITLE II SOVIET NUCLEAR THREAT REDUCTION ACT

m. Soviet Nuclear Threat Reduction Act of 1991

(Title II of the the Conventional Forces in Europe Treaty Implementation Act of

1991 (Public Law 102–228, approved Dec. 12, 1991))

TITLE II—SOVIET WEAPONS DESTRUCTION

PART A—SHORT TITLE

SEC. 201. ø22 U.S.C. 2551 note¿ SHORT TITLE.

This title may be cited as the ‘‘Soviet Nuclear Threat Reduction

Act of 1991’’.

PART B—FINDINGS AND PROGRAM

AUTHORITY

SEC. 211. ø22 U.S.C. 2551 note¿ NATIONAL DEFENSE AND SOVIET WEAPONS DESTRUCTION.

(a) FINDINGS.—The Congress finds—

(1) that Soviet President Gorbachev has requested Western

help in dismantling nuclear weapons, and President Bush has

proposed United States cooperation on the storage, transportation, dismantling, and destruction of Soviet nuclear weapons;

(2) that the profound changes underway in the Soviet Union

pose three types of danger to nuclear safety and stability, as

follows: (A) ultimate disposition of nuclear weapons among the

Soviet Union, its republics, and any successor entities that is

not conducive to weapons safety or to international stability;

(B) seizure, theft, sale, or use of nuclear weapons or components; and (C) transfers of weapons, weapons components, or

weapons know-how outside of the territory of the Soviet Union,

its republics, and any successor entities, that contribute to

worldwide proliferation; and

(3) that it is in the national security interests of the United

States (A) to facilitate on a priority basis the transportation,

storage, safeguarding, and destruction of nuclear and other

weapons in the Soviet Union, its republics, and any successor

entities, and (B) to assist in the prevention of weapons

proliferation.

(b) EXCLUSIONS.—United States assistance in destroying nuclear

and other weapons under this title may not be provided to the Soviet Union, any of its republics, or any successor entity unless the

President certifies to the Congress that the proposed recipient is

committed to—

(1) making a substantial investment of its resources for dismantling or destroying such weapons;

(2) forgoing any military modernization program that exceeds legitimate defense requirements and forgoing the replacement of destroyed weapons of mass destruction;

(3) forgoing any use of fissionable and other components of

destroyed nuclear weapons in new nuclear weapons;

(4) facilitating United States verification of weapons destruction carried out under section 212;

(5) complying with all relevant arms control agreements; and
TITLE II SOVIET NUCLEAR THREAT REDUCTION ACT 682

(6) observing internationally recognized human rights, including the protection of minorities.

(c) As part of a transmission to Congress under subsection (b)

of a certification that a proposed recipient of United States assistance under this title is committed to carrying out the matters specified in each of paragraphs (1) through (6) of that subsection, the

President shall include a statement setting forth, in unclassified

form (together with a classified annex if necessary), the determination of the President, with respect to each such paragraph, as to

whether that proposed recipient is at that time in fact carrying out

the matter specified in that paragraph.

SEC. 212. ø22 U.S.C. 2551 note¿ AUTHORITY FOR PROGRAM TO FACILITATE SOVIET WEAPONS DESTRUCTION.

(a) IN GENERAL.—Notwithstanding any other provision of law,

the President, consistent with the findings stated in section 211,

may establish a program as authorized in subsection (b) to assist

Soviet weapons destruction. Funds for carrying out this program

shall be provided as specified in part C.

(b) TYPE OF PROGRAM.—The program under this section shall be

limited to cooperation among the United States, the Soviet Union,

its republics, and any successor entities to (1) destroy nuclear

weapons, chemical weapons, and other weapons, (2) transport,

store, disable, and safeguard weapons in connection with their destruction, and (3) establish verifiable safeguards against the proliferation of such weapons. Such cooperation may involve assistance in planning and in resolving technical problems associated

with weapons destruction and proliferation. Such cooperation may

also involve the funding of critical short-term requirements related

to weapons destruction and should, to the extent feasible, draw

upon United States technology and United States technicians.

PART C—ADMINISTRATIVE AND FUNDING

AUTHORITIES

SEC. 221. ø22 U.S.C. 2551 note¿ ADMINISTRATION OF NUCLEAR THREAT

REDUCTION PROGRAMS.

(a) FUNDING.—

(1) TRANSFER AUTHORITY.—The President may, to the extent

provided in an appropriations Act or joint resolution, transfer

to the appropriate defense accounts from amounts appropriated to the Department of Defense for fiscal years 1992 and

1993 for operation and maintenance or from balances in working capital accounts established under section 2208 of title 10,

United States Code, not to exceed $800,000,000 for use in reducing the Soviet military threat under part B.

(2) LIMITATION.—Amounts for transfers under paragraph (1)

may not be derived from amounts appropriated for any activity

of the Department of Defense that the Secretary of Defense determines essential for the readiness of the Armed Forces, including amounts for—

(A) training activities; and

(B) depot maintenance activities.
683 TITLE II SOVIET NUCLEAR THREAT REDUCTION ACT

(b) DEPARTMENT OF DEFENSE.—The Department of Defense shall

serve as the executive agent for any program established under

part B.

(c) REIMBURSEMENT OF OTHER AGENCIES.—The Secretary of Defense may reimburse other United States Government departments

and agencies under this section for costs of participation, as directed by the President, only in a program established under part

B.

(d) CHARGES AGAINST FUNDS.—The value of any material from

existing stocks and inventories of the Department of Defense, or

any other United States Government department or agency, that is

used in providing assistance under part B to reduce the Soviet military threat may not be charged against funds available pursuant

to subsection (a) to the extent that the material contributed is directed by the President to be contributed without subsequent replacement.

(e) DETERMINATION BY DIRECTOR OF OMB.—No amount may be

obligated for the program under part B for fiscal year 1992 or fiscal

year 1993 unless expenditures for that program for that fiscal year

have been determined by the Director of the Office of Management

and Budget to be counted against the defense category of the discretionary spending limits for that fiscal year (as defined in section

601(a)(2) of the Congressional Budget Act of 1974) for purposes of

part C of the Balanced Budget and Emergency Deficit Control Act

of 1985.

SEC. 222. ø22 U.S.C. 2551 note¿ REPAYMENT ARRANGEMENTS.

(a) REIMBURSEMENT ARRANGEMENTS.—Assistance provided under

part B to the Soviet Union, any of its republics, or any successor

entity shall be conditioned, to the extent that the President determines to be appropriate after consultation with the recipient government, upon the agreement of the recipient government to reimburse the United States Government for the cost of such assistance

from natural resources or other materials available to the recipient

government.

(b) NATURAL RESOURCES, ETC.—The President shall encourage

the satisfaction of such reimbursement arrangements through the

provision of natural resources, such as oil and petroleum products

and critical and strategic materials, and industrial goods. Materials

received by the United States Government pursuant to this section

that are suitable for inclusion in the Strategic Petroleum Reserve

or the National Defense Stockpile may be deposited in the reserve

or stockpile without reimbursement. Other material and services

received may be sold or traded on the domestic or international

market with the proceeds to be deposited in the General Fund of

the Treasury.

SEC. 223. ø22 U.S.C. 2551 note¿ DIRE EMERGENCY SUPPLEMENTAL APPROPRIATIONS.

It is the sense of the Senate that the committee of conference on

House Joint Resolution 157 should consider providing the necessary authority in the conference agreement for the President to

transfer funds pursuant to this title.
FY92 RELATIONS WITH FOREIGN COUNTRIES 684

PART D—REPORTING REQUIREMENTS

SEC. 231. ø22 U.S.C. 2551 note¿ PRIOR NOTICE OF OBLIGATIONS TO

CONGRESS.

Not less than 15 days before obligating any funds for a program

under part B, the President shall transmit to the Congress a report

on the proposed obligation. Each such report shall specify—

(1) the account, budget activity, and particular program or

programs from which the funds proposed to be obligated are to

be derived and the amount of the proposed obligation; and

(2) the activities and forms of assistance under part B for

which the President plans to obligate such funds.

SEC. 232. øRepealed by section 139(17) of Public Law 103–236¿

n. National Defense Authorization Act For Fiscal Years 1992

and 1993

(Public Law 102–190, approved Dec. 5, 1991)

TITLE X—GENERAL PROVISIONS

* * * * * * *

PART D—MATTERS RELATED TO ALLIES AND OTHER NATIONS

* * * * * * *

SEC. 1046. ø22 U.S.C. 1928 note¿ DEFENSE COST-SHARING.

(a) DEFENSE COST-SHARING AGREEMENTS.—(1) The President

shall consult with the foreign nations described in paragraph (2) to

seek to achieve, within 12 months after the date of the enactment

of this Act, an agreement on equitable defense cost-sharing with

each such nation.

(2) The foreign nations referred to in paragraph (1) are—

(A) each member nation of the North Atlantic Treaty Organization (other than the United States); and

(B) every other foreign nation with which the United

States has a bilateral or multilateral defense agreement that

provides for the assignment of combat units of the Armed

Forces of the United States to permanent duty in the nation

or the placement of combat equipment of the United States in

the nation.

(3) Each defense cost-sharing agreement entered into under

paragraph (1) should provide that the foreign nation agrees to

share equitably with the United States, through cash compensation

or in-kind contributions, or a combination thereof, the costs to the

United States that arise solely from the implementation of the provisions of the bilateral or multilateral defense agreement with that

nation.

(b) EXCEPTION.—The provisions of subsection (a) shall not

apply to those foreign nations that receive assistance under section

23 of the Arms Export Control Act (22 U.S.C. 2763) relating to the

foreign military financing program or under chapter 4 of part II of

the Foreign Assistance Act of 1961 (22 U.S.C. 2346 et seq.) relating

to the Economic Support Fund.
685 FY91 RELATIONS WITH FOREIGN COUNTRIES

(c) CONSULTATIONS.—In conducting the consultations required

under subsection (a), the President should make maximum feasible

use of the Department of Defense and the post of Ambassador-atLarge created by section 8125(c) of the Department of Defense Appropriations Act, 1989 (10 U.S.C. 113 note).

(d) ALLIES MUTUAL DEFENSE PAYMENTS ACCOUNT.—The Secretary of Defense shall maintain an accounting for defense costsharing under each agreement entered into with a foreign nation

pursuant to subsection (a). The accounting shall show for each foreign nation the amount and nature of the—

(1) cost-sharing contributions agreed to by the nation;

(2) cost-sharing contributions delivered by the nation;

(3) additional contributions by the nation to any commonly

funded multilateral programs providing for United States participation in the common defense;

(4) contributions by the United States to any such commonly funded multilateral programs;

(5) contributions of all other nations to any such commonly

funded multilateral programs; and

(6) costs to the United States that arise solely from the implementation of the provisions of the bilateral or multilateral

defense agreement with the nation.

(e) REPORTING REQUIREMENTS.—The Secretary of Defense shall

include in each Report on Allied Contributions to the Common Defense prepared under section 1003 of Public Law 98–525 (22 U.S.C.

1928 note) information, in classified and unclassified form—

(1) describing the efforts undertaken and the progress

made by the President in carrying out subsections (a) and (c)

during the period covered by the report;

(2) specifying the accounting of defense cost-sharing contributions maintained under subsection (d) during that period;

(3) assessing how equitably foreign nations not described

in subsection (a) or excepted under subsection (b) are sharing

the costs and burdens of implementing defense agreements

with the United States and how those defense agreements

serve the national security interests of the United States; and

(4) specifying the incremental costs to the United States

associated with the permanent stationing ashore of United

States forces in foreign nations.

(f) INCREMENTAL COSTS DEFINED.—In this section, the term

‘‘incremental costs’’, with respect to permanent stationing ashore of

United States forces in foreign nations, means the difference between the costs associated with maintaining United States military

forces in assignments to permanent duty ashore in the foreign nations and the costs associated with maintaining those same military forces at military bases in the United States.

o. Contributions by Japan to the Support of United States

Forces in Japan

(Section 8105 of the Department of Defense Appropriations Act, 1991 (Public Law

101–511, approved Nov. 5, 1990))

SEC. 8105. CONTRIBUTIONS BY JAPAN TO THE SUPPORT OF

UNITED STATES FORCES IN JAPAN.—
FY91 RELATIONS WITH FOREIGN COUNTRIES 686

(a) PERMANENT CEILING ON UNITED STATES ARMED FORCES IN

JAPAN.—After September 30, 1990, funds appropriated pursuant to

an appropriation contained in this Act or any subsequent Act may

not be used to support an end strength level of all personnel of the

Armed Forces of the United States stationed in Japan at any level

in excess of 50,000.

(b) ANNUAL REDUCTION IN CEILING UNLESS SUPPORT FURNISHED.—Unless the President certifies to Congress before the end

of each fiscal year that Japan has agreed to offset for that fiscal

year the direct costs incurred by the United States related to the

presence of all United States military personnel in Japan, excluding the military personnel title costs, the end strength level for

that fiscal year of all personnel of the Armed Forces of the United

States stationed in Japan may not exceed the number that is 5,000

less than such end strength level for the preceding fiscal year.

(c) SENSE OF CONGRESS.—It is the sense of Congress that all

those countries that share the benefits of international security and

stability should share in the responsibility for that stability and security commensurate with their national capabilities. The Congress

also recognizes that Japan has made a substantial pledge of financial support to the effort to support the United Nations Security

Council resolutions on Iraq. The Congress also recognizes that

Japan has a greater economic capability to contribute to international security and stability than any other member of the international community and wishes to encourage Japan to contribute

commensurate with that capability.

(d) EXCEPTIONS.—(1) This section shall not apply in the event

of a declaration of war or an armed attack on Japan.

(2) The President may waive the limitation in this section for

any fiscal year if he declares that it is in the national interest to

do so and immeditely informs Congress of the waiver and the reasons for the waiver.

(e) EFFECTIVE DATE.—This section shall take effect on the date

of enactment of this Act.

(Section 1455 of the National Defense Authorization Act for Fiscal Year 1991 (Public

Law 101–510, approved Nov. 5, 1990))

SEC. 1455. PERMANENT CEILING ON UNITED STATES ARMED FORCES

IN JAPAN AND CONTRIBUTIONS BY JAPAN TO THE SUPPORT OF UNITED STATES FORCES IN JAPAN

(a) PURPOSE.—It is the purpose of this section to require Japan

to offset the direct costs (other than pay and allowances for United

States military and civilian personnel) incurred by the United

States related to the presence of United States military personnel

in Japan.

(b) PERMANENT CEILING ON UNITED STATES ARMED FORCES IN

JAPAN.—Funds appropriated pursuant to an authorization contained in this Act or any subsequent Act may not be used to support an end strength level of all personnel of the Armed Forces of

the United States stationed in Japan at any level in excess of

50,000.

(c) SENSE OF CONGRESS ON ALLIED BURDEN SHARING.—(1) Congress recognizes that Japan has made a substantial pledge of fi-
687 FY91 RELATIONS WITH FOREIGN COUNTRIES

nancial support to the effort to support the United Nations Security Council resolutions on Iraq.

(2) It is the sense of Congress that—

(A) all countries that share the benefits of international security and stability should, commensurate with their national

capabilities, share in the responsibility for maintaining that security and stability; and

(B) given the economic capability of Japan to contribute to

international security and stability, Japan should make contributions commensurate with that capability.

(d) NEGOTIATIONS.—At the earliest possible date after the date

of the enactment of this Act, the President shall enter into negotiations with Japan for the purpose of achieving an agreement before

September 30, 1991, under which Japan offsets all direct costs

(other than pay and allowances for United States military and civilian personnel) incurred by the United States related to the presence of all United States military personnel stationed in Japan.

(e) EXCEPTIONS.—(1) This section shall not apply in the event

of a declaration of war or an armed attack on Japan.

(2) This section may be waived by the President if the

President—

(A) declares an emergency or determines that such a waiver is required by the national security interests of the United

States; and

(B) immediately informs the Congress of the waiver and

the reasons for the waiver.

p. National Defense Authorization Act for Fiscal Year 1991

(Public Law 101–510, approved Nov. 5, 1990)

TITLE XIV—GENERAL PROVISIONS

* * * * * * *

PART E—MATTERS RELATING TO ALLIES AND OTHER NATIONS

* * * * * * *

SEC. 1457. [50 U.S.C. 404c] ANNUAL REPORT ON UNITED STATES SECURITY ARRANGEMENTS AND COMMITMENTS WITH OTHER

NATIONS

(a) REPORT REQUIREMENTS.—The President shall submit to the

congressional committees specified in subsection (d) each year a report (in both classified and unclassified form) on United States security arrangements with, and commitments to, other nations.

(b) MATTERS TO BE INCLUDED.—The President shall include in

each such report the following:

(1) A description of—

(A) each security arrangement with, or commitment

to, other nations, whether based upon (i) a formal document (including a mutual defense treaty, a pre-positioning

arrangement or agreement, or an access agreement), or (ii)

an expressed policy; and

(B) the historical origins of each such arrangement or

commitment.
FY89 RELATIONS WITH FOREIGN COUNTRIES 688

(2) An evaluation of the ability of the United States to

meet its commitments based on the projected reductions in the

defense structure of the United States.

(3) A plan for meeting each of those commitments with the

force structure projected for the future.

(4) An assessment of the need to continue, modify, or discontinue each of those arrangements and commitments in view

of the changing international security situation.

(c) DEADLINE FOR REPORT.—The President shall submit the report required by subsection (a) not later than February 1 of each

year.

(d) SPECIFIED CONGRESSIONAL COMMITTEES.—The congressional committees referred to in subsection (a) are the following:

(1) The Committee on Armed Services and the Committee

on Foreign Relations of the Senate.

(2) The Committee on Armed Services and the Committee

on International Relations of the House of Representatives.

q. Department of Defense Appropriations Act, 1989

(Public Law 100–463, approved Oct. 1, 1988)

SEC. 8125. [10 U.S.C. 113 note] (a)***

* * * * * * *

(d) The President shall specify (separately by appropriation account) in the Department of Defense items included in each budget

submitted to Congress under section 1105 of title 31, United States

Code, (1) the amounts necessary for payment of all personnel, operations, maintenance, facilities, and support costs for Department of

Defense overseas military units, and (2) the costs for all dependents who accompany Department of Defense personnel outside the

United States.

* * * * * * *

(f) As of September 30 of each fiscal year, the number of members of the Armed Forces on active duty assigned to permanent

duty ashore in Japan and the Republic of Korea may not exceed

94,450 (the number of members of the Armed Forces on active duty

assigned to permanent duty ashore in Japan and the Republic of

Korea on September 30, 1987). The limitation in the preceding sentence may be increased if and when (1) a major reduction of United

States forces in the Republic of the Philippines is required because

of a loss of basing rights in that nation, and (2) the President determines and certifies to Congress that, as a consequence of such

loss, an increase in United States forces stationed in Japan and the

Republic of Korea is necessary.

(g)(1) After fiscal year 1990, budget submissions to Congress

under section 1105 of title 31, United States Code, shall identify

funds requested for Department of Defense personnel and units in

permanent duty stations ashore outside the United States that exceed the amount of such costs incurred in fiscal year 1989 and

shall set forth a detailed description of (A) the types of expenditures increased, by appropriation account, activity and program;
689 FY89 RELATIONS WITH FOREIGN COUNTRIES

and (B) specific efforts to obtain allied host nations’ financing for

these cost increases.

(2) The Secretary of Defense shall notify in advance the Committee on Appropriations and the Committee on Armed Services of

the Senate and the Committee on Appropriations and the Committee on Armed Services of the House of Representatives through

existing notification procedures, when costs of maintaining Department of Defense personnel and units in permanent duty stations

ashore outside the United States will exceed the amounts as defined in the Department of Defense budget as enacted for that fiscal year. Such notification shall describe: (A) the type of expenditures that increased; and (B) the source of funds (including prior

year unobligated balances) by appropriation account, activity and

program, proposed to finance these costs.

(3) In computing the costs incurred for maintaining Department of Defense personnel and forces in permanent duty stations

ashore outside the United States compared with the amount of

such costs incurred in fiscal year 1989, the Secretary shall—

(A) exclude increased costs resulting from increases in the

rates of pay provided for members of the Armed Forces and civilian employees of the United States Government and exclude

any cost increases in supplies and services resulting from inflation; and

(B) include (i) the costs of operations and maintenance and

of facilities for the support of Department of Defense overseas

personnel, and (ii) increased costs resulting from any decline in

the foreign exchange rate of the United States dollar.

(h) The provisions of subsections (f) and (g) shall not apply in

time of war or during a national emergency declared by the President or Congress.

(i) In this section—

(1) the term ‘‘personnel’’ means members of the Armed

Forces of the United States and civilian employees of the Department of Defense;

(2) the term ‘‘Department of Defense overseas personnel’’

means those Department of Defense personnel who are assigned to permanent duty ashore outside the United States;

and

(3) the term ‘‘United States’’ includes the District of Columbia, the Commonwealth of Puerto Rico, and the territories

and possessions of the United States.
FY85 RELATIONS WITH FOREIGN COUNTRIES 690

r. Department of Defense Authorization Act, 1985

(Public Law 98–525; approved Oct. 19, 1984)

[Permanent Ceiling on Number of Military Personnel Assigned to Ashore Duty in European Member Nations of

NATO]

TITLE X—MATTERS RELATING TO NATO AND OTHER

ALLIES

IMPROVEMENTS TO NATO CONVENTIONAL CAPABILITY

SEC. 1002. ø22 U.S.C. 1928 note¿ (a) * * *

* * * * * * *

(c)(1) The end strength level of members of the Armed Forces

of the United States assigned to permanent duty ashore in European member nations of the North Atlantic Treaty Organization

may not exceed a permanent ceiling of approximately 100,000 in

any fiscal year.

(2) If the Secretary of Defense certifies to the Congress in writing during any fiscal year after fiscal year 1985 that during the

previous fiscal year the member nations of NATO (other than the

United States) have undertaken significant measures to improve

their conventional defense capacity consistent with the goals set

forth in subsection (b) which contributes to lengthening the time

period between an armed attack on any NATO country and the

time the Supreme Allied Commander, Europe, would have to request the release and use of nuclear weapons, the Congress would

give strong consideration to authorizing an increase in the permanent ceiling prescribed in paragraph (1) for fiscal years after such

fiscal year.

(3) For purposes of this subsection, the following members of

the Armed Forces are excluded in calculating the end strength

level of members of the Armed Forces of the United States assigned to permanent duty ashore in European member nations of

NATO:

(A) Members assigned to permanent duty ashore in Iceland, Greenland, and the Azores.

(B) Members performing duties in Europe for more than

179 days under a military-to-military contact program under

section 168 of title 10, United States Code.

* * * * * * *

(f)(1) This section shall not apply in the event of a declaration

of war or an armed attack on any NATO member country.

(2) This section may be waived by the President if he declares

an emergency and immediately informs the Congress of his action

and the reasons therefor.

REPORT ON ALLIED CONTRIBUTIONS TO THE COMMON DEFENSE

SEC. 1003. ø22 U.S.C. 1928 note¿ (a) In recognition of the increasing military threat faced by the Western World and in view

of the growth, relative to the United States, in the economic

strength of Japan, Canada, and a number of Western European
691 FY85 RELATIONS WITH FOREIGN COUNTRIES

countries which has occurred since the signing of the North Atlantic Treaty on April 4, 1949, and the Mutual Cooperation and Security Treaty between Japan and the United States on January 19,

1960, it is the sense of the Congress that—

(1) the burdens of mutual defense now assumed by some

of the countries allied with the United States under those

agreements are not commensurate with their economic resources;

(2) since May 1978, when each member nation of the

North Atlantic Treaty Organization (NATO) agreed to increase

real defense spending annually in the range of 3 percent, most

NATO members, except for the United States, have failed to

meet the 3 percent real growth commitment consistently;

(3) since May 1981, when the Government of Japan established its policy to defend the air and sea lines of communication out to 1,000 nautical miles from the coast of Japan,

progress to develop the necessary self-defense capabilities to

fulfill that pledge has been extremely disappointing;

(4) Japan is the ally of the United States with the greatest

potential for improving its self-defense capabilities and should,

therefore, rapidly increase its annual defense spending to the

levels required to fulfill that pledge and to enable Japan to be

capable of an effective conventional self-defense capability by

1990, including the capability to carry out its 1,000-mile defense policy, a development that would be consonant not only

with Japan’s current prominent position in the family of nations but also with its unique sensibilities on the issues of war

and peace, sensibilities that are recognized and respected by

the people of the United States; and

(5) the continued unwillingness of such countries to increase their contributions to the common defense to more appropriate levels will endanger the vitality, effectiveness, and

cohesion of the alliances between those countries and the

United States.

(b) It is further the sense of the Congress that the President

should seek from each signatory country (other than the United

States) of the two treaties referred to in subsection (a) acceptance

of international security responsibilities and an agreement to make

contributions to the common defense which are commensurate with

the economic resources of such country, including, when appropriate, an increase in host nation support.

(c) The Secretary of Defense shall submit to the Congress by

March 1, 1998, and every other year thereafter, not later than

April 1, a classified report containing—

(1) a comparison of the fair and equitable shares of the

mutual defense burdens of these alliances that should be borne

by the United States, by other member nations of NATO, and

by Japan, based upon economic strength and other relevant

factors, and the actual defense efforts of each nation together

with an explanation of disparities that currently exist and

their impact on mutual defense efforts;

(2) a description of efforts by the United States and the efforts of other members of the alliances to eliminate any existing disparities;
Sec. 515 RELATIONS WITH FOREIGN COUNTRIES 692

(3) projected estimates of the real growth in defense spending for the fiscal year in which the report is submitted for each

NATO member nation;

(4) a description of the defense-related initiatives undertaken by each NATO member nation within the real growth in

defense spending of such nation in the fiscal year immediately

preceding the fiscal year in which the report is submitted;

(5) an explanation of those instances in which the commitments to real growth in defense spending have not been realized and a description of efforts being made by the United

States to ensure fulfillment of these important NATO commitments;

(6) a description of the activities of each NATO member

and Japan to enhance the security and stability of the Southwest Asia region and to assume additional missions for their

own defense as the United States allocates additional resources

to the mission of protecting Western interests in world areas

not covered by the system of Western Alliances; and

(7) a description of what additional actions the executive

branch plans to take should the efforts by the United States

referred to in clauses (2) and (5) fail, and, in those instances

where such additional actions do not include consideration of

the repositioning of American troops, a detailed explanation as

to why such repositioning is not being so considered.

(d) The Secretary of Defense shall also submit to the Congress

not more than 30 days after the submission of the report required

under subsection (a) an unclassified report containing the matters

set forth in clauses (1) through (7) of such subsection.

s. Assignment of Military Personnel for Overseas

Management of Foreign Assistance Programs

(Section 515 of Foreign Assistance Act of 1961)

SEC. 515. ø22 U.S.C. 2321i¿ OVERSEAS MANAGEMENT OF AS- SISTANCE AND SALES PROGRAMS.—(a) In order to carry out his responsibilities for the management of international security assistance programs conducted under this chapter, chapter 5 of this part,

and the Arms Export Control Act, the President may assign members of the Armed Forces of the United States to a foreign country

to perform one or more of the following functions:

(1) equipment and services case management;

(2) training management;

(3) program monitoring;

(4) evaluation and planning of the host government’s military capabilities and requirements;

(5) administrative support;

(6) promoting rationalization, standardization, interoperability, and other defense cooperation measures; and

(7) liaison functions exclusive of advisory and training assistance.

(b) Advisory and training assistance conducted by military personnel assigned under this section shall be kept to an absolute

minimum. It is the sense of the Congress that advising and train-
693 Sec. 515 RELATIONS WITH FOREIGN COUNTRIES

ing assistance in countries to which military personnel are assigned under this section shall be provided primarily by other personnel who are not assigned under this section and who are detailed for limited periods to perform specific tasks.

(c)(1) The number of members of the Armed Forces assigned to

a foreign country under this section may not exceed six unless specifically authorized by the Congress. The President may waive this

limitation if he determines and reports to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs

of the House of Representatives, 30 days prior to the introduction

of the additional military personnel, that United States national interests require that more than six members of the Armed Forces

be assigned under this section to carry out international security

assistance programs in a country not specified in this paragraph.

Pakistan, Tunisia, El Salvador, Honduras, Colombia, Indonesia, the

Republic of Korea, the Philippines, Thailand, Egypt, Jordan, Morocco, Saudi Arabia, Greece, Portugal, Spain, and Turkey are authorized to have military personnel strengths larger than six under

this section to carry out international security assistance programs.

(2) The total number of members of the Armed Forces assigned

under this section to a foreign country in a fiscal year may not exceed the number justified to the Congress for that country in the

congressional presentation materials for that fiscal year, unless the

Committee on Foreign Relations of the Senate and the Committee

on Foreign Affairs of the House of Representatives are notified 30

days in advance of the introduction of the additional military personnel.

(d) Effective October 1, 1989, the entire costs (excluding salaries of the United States military personnel other than the Coast

Guard) of overseas management of international security assistance programs under this section shall be charged to or reimbursed

from funds made available to carry out this chapter or the Arms

Export Control Act, other than any such costs which are either

paid directly for such defense services under section 21(a) of the

Arms Export Control Act or reimbursed from charges for services

collected from foreign governments pursuant to section 21(e) and

section 43(b) of that Act.

(e) Members of the Armed Forces assigned to a foreign country

under this section shall serve under the direction and supervision

of the Chief of the United States Diplomatic Mission to that country.

(f) The President shall continue to instruct United States diplomatic and military personnel in the United States missions abroad

that they should not encourage, promote, or influence the purchase

by any foreign country of United States-made military equipment,

unless they are specifically instructed to do so by an appropriate

official of the executive branch.
694

8. SEALIFT AND SHIPBUILDING PROGRAMS

a. National Defense Authorization Act for Fiscal Year 1994

(Public Law 104–106, approved Feb. 10, 1992)

TITLE XIII—DEFENSE CONVERSION, REINVESTMENT,

AND TRANSITION ASSISTANCE

* * * * * * *

Subtitle D—National Shipbuilding Initiative

SEC. 1351. ø10 U.S.C. 2501 note¿ SHORT TITLE.

This subtitle may be cited as the ‘‘National Shipbuilding and

Shipyard Conversion Act of 1993’’.

SEC. 1352. ø10 U.S.C. 2501 note¿ NATIONAL SHIPBUILDING INITIATIVE.

(a) ESTABLISHMENT OF PROGRAM.—There shall be a National

Shipbuilding Initiative program, to be carried out to support the industrial base for national security objectives by assisting in the reestablishment of the United States shipbuilding industry as a selfsufficient, internationally competitive industry.

(b) ADMINISTERING DEPARTMENTS.—The program shall be carried out—

(1) by the Secretary of Defense, with respect to programs

under the jurisdiction of the Secretary of Defense; and

(2) by the Secretary of Transportation, with respect to programs under the jurisdiction of the Secretary of Transportation.

(c) PROGRAM ELEMENTS.—The National Shipbuilding Initiative

shall consist of the following program elements:

(1) FINANCIAL INCENTIVES PROGRAM.—A financial incentives program to provide loan guarantees to initiate commercial ship construction for domestic and export sales, encourage

shipyard modernization, and support increased productivity.

(2) TECHNOLOGY DEVELOPMENT PROGRAM.—A technology

development program, to be carried out within the Department

of Defense by the Defense Advanced Research Projects Agency,

to improve the technology base for advanced shipbuilding technologies and related dual-use technologies through activities

including a development program for innovative commercial

ship design and production processes and technologies.

(3) NAVY’S AFFORDABILITY THROUGH COMMONALITY PROGRAM.—Enhanced support by the Secretary of Defense for the

shipbuilding program of the Department of the Navy known as

the Affordability Through Commonality (ATC) program, to include enhanced support (A) for the development of common
695 FY94 SEALIFT AND SHIPBUILDING PROGRAMS

modules for military and commercial ships, and (B) to foster

civil-military integration into the next generation of Naval surface combatants.

(4) NAVY’S MANUFACTURING TECHNOLOGY AND TECHNOLOGY

BASE PROGRAMS.—Enhanced support by the Secretary of Defense for, and strengthened funding for, that portion of the

Manufacturing Technology program of the Navy, and that portion of the Technology Base program of the Navy, that are in

the areas of shipbuilding technologies and ship repair technologies.

SEC. 1353. ø10 U.S.C. 2501 note¿ DEPARTMENT OF DEFENSE PROGRAM

MANAGEMENT THROUGH DEFENSE ADVANCED RESEARCH PROJECTS AGENCY.

The Secretary of Defense shall designate the Defense Advanced

Research Projects Agency of the Department of Defense as the lead

agency of the Department of Defense for activities of the Department of Defense which are part of the National Shipbuilding Initiative program. Those activities shall be carried out as part of defense conversion activities of the Department of Defense.

SEC. 1354. ø10 U.S.C. 2501 note¿ DEFENSE ADVANCED RESEARCH

PROJECTS AGENCY FUNCTIONS AND MINIMUM FINANCIAL COMMITMENT OF NON-FEDERAL GOVERNMENT PARTICIPANTS.

(a) ARPA FUNCTIONS.—The Secretary of Defense, acting

through the Director of the Defense Advanced Research Projects

Agency, shall carry out the following functions with respect to the

National Shipbuilding Initiative program:

(1) Consultation with the Maritime Administration, the Office of Economic Adjustment, the National Economic Council,

the National Shipbuilding Research Project, the Coast Guard,

the National Oceanic and Atmospheric Administration, appropriate naval commands and activities, and other appropriate

Federal agencies on—

(A) development and transfer to the private sector of

dual-use shipbuilding technologies, ship repair technologies, and shipbuilding management technologies;

(B) assessments of potential markets for maritime

products; and

(C) recommendation of industrial entities, partnerships, joint ventures, or consortia for short- and long-term

manufacturing technology investment strategies.

(2) Funding and program management activities to develop

innovative design and production processes and the technologies required to implement those processes.

(3) Facilitation of industry and Government technology development and technology transfer activities (including education and training, market assessments, simulations, hardware models and prototypes, and national and regional industrial base studies).

(4) Integration of promising technology advances made in

the Technology Reinvestment Program of the Defense Advanced Research Projects Agency into the National Shipbuilding Initiative to effect full defense conversion potential.
FY93 SEALIFT AND SHIPBUILDING PROGRAMS 696

(b) FINANCIAL COMMITMENT OF NON-FEDERAL GOVERNMENT

PARTICIPANTS.—

(1) MAXIMUM DEPARTMENT OF DEFENSE SHARE.—The Secretary of Defense shall ensure that the amount of funds provided by the Secretary to a non-Federal government participant does not exceed 50 percent of the total cost of technology

development and technology transfer activities.

(2) REGULATIONS.—The Secretary may prescribe regulations to provide for consideration of in-kind contributions by

non-Federal Government participants in a partnership for the

purpose of calculating the share of the partnership costs that

has been or is being undertaken by such participants. In prescribing the regulations, the Secretary may determine that a

participant that is a small business concern may use funds received under the Small Business Innovation Research Program

or the Small Business Technology Transfer Program to help

pay the costs of partnership activities. Any such funds so used

may be included in calculating the amount of the financial

commitment undertaken by the non-Federal Government participants unless the Secretary determines that the small business concern has not made a significant equity contribution in

the program from non-Federal sources.

b. National Defense Authorization Act for Fiscal Year 1993

(Public Law 102–484, approved Oct. 23, 1992)

TITLE III—OPERATION AND MAINTENANCE

* * * * * * *

SEC. 375. ø10 U.S.C. 7291 note¿ CONSIDERATION OF VESSEL LOCATION

FOR THE AWARD OF LAYBERTH CONTRACTS FOR SEALIFT

VESSELS.

(a) CONSIDERATION OF VESSEL LOCATION IN THE AWARD OF

LAYBERTH CONTRACTS.—As a factor in the evaluation of bids and

proposals for the award of contracts to layberth sealift vessels of

the Department of the Navy, the Secretary of the Navy shall include the location of the vessels, including whether the vessels

should be layberthed at locations where—

(1) members of the Armed Forces are likely to be loaded

onto the vessels; and

(2) layberthing the vessels maximizes the ability of the

vessels to meet mobility and training needs of the Department

of Defense.

(b) ESTABLISHMENT OF LOCATION AS A MAJOR CRITERION.—In

the evaluation of bids and proposals referred to in subsection (a),

the Secretary of the Navy shall give the same level of consideration

to the location of the vessels as the Secretary gives to other major

factors established by the Secretary.

(c) APPLICABILITY.—Subsection (a) shall apply to any solicitation for bids or proposals issued after the end of the 120-day period

beginning on the date of the enactment of this Act [Oct. 23, 1992].

* * * * * * *
697 FY93 SEALIFT AND SHIPBUILDING PROGRAMS

TITLE X—GENERAL PROVISIONS

* * * * * * *

Subtitle C—Fast Sealift Program

SEC. 1021. ø10 U.S.C. 7291 note¿ PROCUREMENT OF SHIPS FOR THE

FAST SEALIFT PROGRAM.

(a) ACQUISITION AND CONVERSION OF U.S. BUILT VESSELS.—

Notwithstanding any other provision of law, the Secretary of the

Navy may use funds available for the Fast Sealift Program—

(1) to acquire vessels for the program from among available vessels built in United States shipyards; and

(2) to convert in United States shipyards vessels built in

United States shipyards.

(b) ACQUISITION OF FIVE FOREIGN-BUILT VESSELS.—Notwithstanding any other provision of law, funds available for the Fast

Sealift Program may be used for the acquisition of five vessels built

in foreign shipyards and for conversion of those vessels in United

States shipyards if the Secretary of the Navy determines that acquisition of those vessels is necessary to expedite the availability

of vessels for sealift.

* * * * * * *

Subtitle D—Defense Maritime Logistical Readiness

SEC. 1031. ø10 U.S.C. 7291 note¿ REVITALIZATION OF UNITED STATES

SHIPBUILDING INDUSTRY.

(a) IN GENERAL.—The Secretary of Defense shall require that

all sealift ships built under the fast sealift program established in

section 1424 of the National Defense Authorization Act for Fiscal

Year 1991 (Public Law 101–510; 104 Stat. 1683) shall be constructed and designed to commercial specifications.

(b) INTERAGENCY WORKING GROUP TO FORMULATE A PROGRAM

TO PRESERVE SHIPYARD INDUSTRIAL BASE.—(1) Not later than

March 1, 1993, the President shall establish an interagency working group for the sole purpose of developing and implementing a

comprehensive plan to enable and ensure that domestic shipyards

can compete effectively in the international shipbuilding market.

(2) The working group shall include representatives from all

appropriate agencies, including the Department of Defense, the Department of State, the Department of Commerce, the Department

of Transportation, the Department of Labor, the Office of the

United States Trade Representative, and the Maritime Administration.

(3) The President shall submit to Congress the comprehensive

plan developed by the working group not later than October 1,

1993.

(c) REPORT ON SHIP DUMPING PRACTICES.—The Secretary of

Transportation shall prepare a report on the countries that provide

subsidies for the construction or repair of vessels in foreign shipyards or that engage in ship dumping practices.

(d) REPORT ON DEFENSE CONTRACTS.—The Secretary of Defense shall prepare a report on—
FY93 SEALIFT AND SHIPBUILDING PROGRAMS 698

(1) the amount of Department of Defense contracts that

were awarded to companies physically located or

headquartered in the countries identified in the Secretary of

Transportation’s report under subsection (d) for the most recent year for which data is available; and

(2) the effect on defense programs of a prohibition of

awarding contracts to companies physically located or

headquartered in the countries identified in the Secretary of

Transportation’s report under subsection (d).

(e) REPORT ON ADEQUACY OF UNITED STATES SHIPBUILDING IN- DUSTRY.—The Secretary of Defense shall prepare a report on—

(1) the adequacy of United States shipbuilding industry to

meet military requirements, including sealift, during the period of 1994 through 1999; and

(2) the causes of any inadequacy identified and actions

that could be taken to correct such inadequacies.

(f) SUBMISSION OF REPORTS.—The reports under subsections

(c), (d), and (e) shall be submitted to Congress with the President’s

budget for fiscal year 1994.

(g) PENALTY FOR FAILURE TO COMPLY.—(1) Except as provided

in paragraph (2), if the President fails to submit to Congress a comprehensive plan as required by subsection (b) by October 1, 1993,

no funds appropriated to the Department of Defense for fiscal year

1994 may be used to enter into a contract for the construction, repair, or purchase of any product or service with any company that

has headquarters in any country that continues to provide a subsidy to a foreign shipyard for the construction or repair of vessels

or that engages in ship dumping practices.

(2) Paragraph (1) shall not apply if the President—

(A) notifies Congress that he is unable to submit the plan

by the time required under subsection (c); and

(B) includes with the notice a brief explanation of the reasons for the delay and a statement that the plan will be submitted by April 15, 1994.

(h) DEFINITIONS.—For purposes of subsection (c):

(1) The term ‘‘foreign shipyard’’ includes a ship construction or repair facility located in a foreign country that is directly or indirectly owned, controlled, managed, or financed by

a foreign shipyard that receives or benefits from a subsidy.

(2) The term ‘‘subsidy’’ includes any of the following:

(A) Officially supported export credits and development assistance.

(B) Direct official operating support to the commercial

shipbuilding and repair industry, or to a related entity

that favors the operation of shipbuilding and repair,

including—

(i) grants;

(ii) loans and loan guarantees other than those

available on the commercial market;

(iii) forgiveness of debt;

(iv) equity infusions on terms inconsistent with

commercially reasonable investment practices;

(v) preferential provision of goods and services;

and
699 FY91 SEALIFT AND SHIPBUILDING PROGRAMS

(vi) public sector ownership of commercial shipyards on terms inconsistent with commercially reasonable investment practices.

(C) Direct official support for investment in the commercial shipbuilding and repair industry, or to a related

entity that favors the operation of shipbuilding and repair,

including the kinds of support listed in clauses (i) through

(v) of subparagraph (B), and any restructuring support, except public support for social purposes directly and effectively linked to shipyard closures.

(D) Assistance in the form of grants, preferential

loans, preferential tax treatment, or otherwise, that benefits or is directly related to shipbuilding and repair for

purposes of research and development that is not equally

open to domestic and foreign enterprises.

(E) Tax policies and practices that favor the shipbuilding and repair industry, directly or indirectly, such as

tax credits, deductions, exemptions and preferences, including accelerated depreciation, if the benefits are not

generally available to persons or firms not engaged in

shipbuilding or repair.

(F) Any official regulation or practice that authorizes

or encourages persons or firms engaged in shipbuilding or

repair to enter into anticompetitive arrangements.

(G) Any indirect support directly related, in law or in

fact, to shipbuilding and repair at national yards, including any public assistance favoring shipowners with an indirect effect on shipbuilding or repair activities, and any

assistance provided to suppliers of significant inputs to

shipbuilding, which results in benefits to domestic shipbuilders.

(H) Any export subsidy identified in the Illustrative

List of Export Subsidies in the Annex to the Agreement on

Interpretation and Application of Articles VI, XVI, and

XXIII of the General Agreement on Tariffs and Trade or

any other export subsidy that may be prohibited as a result of the Uruguay Round of trade negotiations.

(3) The term ‘‘vessel’’ means any self-propelled, sea-going

vessel—

(A) of not less than 100 gross tons, as measured under

the International Convention of Tonnage Measurement of

Ships, 1969; and

(B) not exempt from entry under section 441 of the

Tariff Act of 1930 (19 U.S.C. 1431).

c. National Defense Authorization Act for Fiscal Year 1991

(Public Law 101–510, approved Nov. 20, 1989)

TITLE XIV—GENERAL PROVISIONS

* * * * * * *
FY91 SEALIFT AND SHIPBUILDING PROGRAMS 700

PART B—NAVAL VESSELS AND SHIPYARDS

* * * * * * *

SEC. 1424. ø10 U.S.C. 7291 note¿ FAST SEALIFT PROGRAM

(a) ESTABLISHMENT OF PROGRAM.—The Secretary of the Navy

shall establish a program for the construction and operation, or

conversion and operation, of cargo vessels that incorporate features

essential for military use of the vessels.

(b) PROGRAM REQUIREMENTS.—The program under this section

shall be carried out as follows:

(1) The Secretary of the Navy shall establish the design requirements for vessels to be constructed or converted under the

program.

(2) In establishing the design requirements for vessels to

be constructed or converted under the program, the Secretary

shall use commercial design standards and shall consult with

the Administrator of the Maritime Administration.

(3) Construction or conversion of the vessels shall be accomplished in private United States shipyards.

(4) The vessels constructed or converted under the program shall incorporate propulsion systems whose main components (that is, the engines, reduction gears, and propellers) are

manufactured in the United States.

(5) The vessels constructed or converted under the program shall incorporate bridge and machinery control systems

and interior communications equipment which—

(A) are manufactured in the United States; and

(B) have more than half of their value, in terms of

cost, added in the United States.

(6) The Secretary of Defense may waive the requirement

of paragraph (5) with respect to a system or equipment described in that paragraph if—

(A) the system or equipment is not available; or

(B) the costs of compliance would be unreasonable

compared to the costs of purchase from a foreign

manufacturer.

(c) CHARTER OF VESSELS CONSTRUCTED.—(1) Except when the

Secretary determines that having a vessel immediately available

with a full or partial crew is in the national interest, the Secretary,

in consultation with the Administrator of the Maritime Administration, shall charter each vessel constructed before October 1, 1995,

under the program for commercial operation. Any such charter—

(A) shall not permit the operation of the vessel other than

in the foreign commerce of the United States;

(B) may be made only with an individual or entity that is

a citizen of the United States (which, in the case of a corporation, partnership, or association, shall be determined in the

manner specified in section 2 of the Shipping Act, 1916 (46

U.S.C. App. 802)); and

(C) shall require that the vessel be documented (and remain documented) under the laws of the United States.

(2) The Secretary may enter into a charter under paragraph (1)

only through the use of competitive bidding procedures that ensure

that the highest charter rates are obtained by the United States
701 FY91 SEALIFT AND SHIPBUILDING PROGRAMS

consistent with good business practice, except that the Secretary

may operate the vessel (or contract to have the vessel operated) in

direct support of United States military forces during a time of war

or national emergency and at other times when the Administrator

of the Maritime Administration determines that that operation

would not unfairly compete with another United States-flag vessel.

(3) If the Secretary determines that a vessel previously chartered under the program no longer has commercial utility, the Secretary may transfer the vessel to the National Defense Reserve

Fleet.

(4) A contract for the charter of a vessel under paragraph (1)

shall include a provision that the charter may be terminated for

national security reasons without cost to the United States.

(d) REPORTS TO CONGRESS.—(1) Not later than six months

after the date of the enactment of this Act [Nov. 5, 1990], the Secretary of the Navy shall submit to Congress a report describing the

Secretary’s plan for implementing the fast sealift program authorized by this section.

(2) Not later than three years after the date of the enactment

of this Act [Nov. 5, 1990], the Secretary shall submit to Congress

a report on the implementation of the plan described in the report

submitted under paragraph (1). The report shall include a description of vessels built or under contract to be built pursuant to this

section, the use of such vessels, and the operating experience and

manning of such vessels.

(3) The reports under paragraphs (1) and (2) shall be prepared

in consultation with the Administrator of the Maritime Administration.

(4) The vessels constructed under the program shall incorporate propulsion systems, bridge and machinery control systems,

and interior communications equipment manufactured in the

United States.

(e) AVAILABILITY OF FUNDS.—Amounts appropriated to the Department of Defense for any fiscal year for acquisition of fast sealift

vessels may be used for the program under this section.
702

9. DRUG INTERDICTION AND COUNTER-DRUG

ACTIVITIES

a. National Defense Authorization Act for Fiscal Year 2004

(Public Law 108–136, approved Nov. 24, 2003)

TITLE X—GENERAL PROVISIONS

* * * * * * *

Subtitle C—Counter Drug Matters

* * * * * * *

SEC. 1022. ø10 U.S.C. 371 note¿ AUTHORITY FOR JOINT TASK FORCES TO

PROVIDE SUPPORT TO LAW ENFORCEMENT AGENCIES

CONDUCTING COUNTER-TERRORISM ACTIVITIES.

(a) AUTHORITY.—A joint task force of the Department of Defense that provides support to law enforcement agencies conducting

counter-drug activities may also provide, subject to all applicable

laws and regulations, support to law enforcement agencies conducting counter-terrorism activities.

(b) CONDITIONS.—Any support provided under subsection (a)

may only be provided in the geographic area of responsibility of the

joint task force.

SEC. 1023. USE OF FUNDS FOR UNIFIED COUNTERDRUG AND

COUNTERTERRORISM CAMPAIGN IN COLOMBIA.

(a) AUTHORITY.—(1) In fiscal year 2004, funds available to the

Department of Defense to provide assistance to the Government of

Colombia may be used by the Secretary of Defense to support a

unified campaign by the Government of Colombia against narcotics

trafficking and against activities by organizations designated as

terrorist organizations, such as the Revolutionary Armed Forces of

Colombia (FARC), the National Liberation Army (ELN), and the

United Self-Defense Forces of Colombia (AUC).

(2) The authority to provide assistance for a campaign under

this subsection includes authority to take actions to protect human

health and welfare in emergency circumstances, including the undertaking of rescue operations.

(b) APPLICABILITY OF CERTAIN LAWS AND LIMITATIONS.—The

use of funds pursuant to the authority in subsection (a) shall be

subject to the following:

(1) Sections 556, 567, and 568 of the Foreign Operations,

Export Financing, and Related Programs Appropriations Act,

2002 (Public Law 107–115; 115 Stat. 2160, 2165, and 2166).

(2) Section 8077 of the Department of Defense Appropriations Act, 2004 (Public Law 108–87; 115 Stat. 2267).
703 FY04 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES

(3) The numerical limitations on the number of United

States military personnel and United States individual civilian

contractors in section 3204(b)(1) of the Emergency Supplemental Act, 2000 (division B of Public Law 106–246; 114 Stat.

575), as amended by the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2002 (Public

Law 107–115; 115 Stat. 2131).

(c) LIMITATION ON PARTICIPATION OF UNITED STATES PERSONNEL.—No United States Armed Forces personnel, United States

civilian employees, or United States civilian contractor personnel

employed by the United States may participate in any combat operation in connection with assistance using funds pursuant to the authority in subsection (a), except for the purpose of acting in self defense or of rescuing any United States citizen, including any

United States Armed Forces personnel, United States civilian employee, or civilian contractor employed by the United States.

(d) RELATION TO OTHER AUTHORITY.—The authority provided

by subsection (a) is in addition to any other authority in law to provide assistance to the Government of Colombia.

SEC. 1024. SENSE OF CONGRESS ON RECONSIDERATION OF DECISION

TO TERMINATE BORDER AND SEAPORT INSPECTION DUTIES OF NATIONAL GUARD UNDER NATIONAL GUARD

DRUG INTERDICTION AND COUNTER-DRUG MISSION.

(a) FINDINGS.—Congress makes the following findings:

(1) The counter-drug inspection mission of the National

Guard is highly important in preventing the entry of illegal

narcotics into the United States.

(2) The expertise of members of the National Guard in conducting vehicle inspections at United States borders and seaports has contributed to the identification and seizure of illegal

narcotics being smuggled into the United States.

(3) The support provided by the National Guard to the

United States Customs Service and the Bureau of Border Security of the Department of Homeland Security greatly enhances

the capability of these agencies to perform counter-terrorism

surveillance and other border protection duties.

(b) SENSE OF CONGRESS.—It is the sense of Congress that the

Secretary of Defense should reconsider the decision of the Department of Defense to terminate the border inspection and seaport inspection duties of the National Guard as part of the drug interdiction and counter-drug mission of the National Guard.

b. Department of Defense Appropriations Act, 2004

(Public Law 108–87, approved Sept. 30, 2003)

SEC. 8057. (a) ø10 U.S.C. 374 note¿ None of the funds available to the Department of Defense for any fiscal year for drug

interdiction or counter-drug activities may be transferred to any

other department or agency of the United States except as specifically provided in an appropriations law.

(b) ø50 U.S.C. 403f note¿ None of the funds available to the

Central Intelligence Agency for any fiscal year for drug interdiction

and counter-drug activities may be transferred to any other depart-
FY00 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES 704

ment or agency of the United States except as specifically provided

in an appropriations law.

c. National Defense Authorization Act for Fiscal Year 2000

(Public Law 106–65, approved Oct. 5, 1999)

TITLE X—GENERAL PROVISIONS

* * * * * * *

Subtitle C—Support for Civilian Law Enforcement and

Counter Drug Activities

* * * * * * *

SEC. 1023. ø10 U.S.C. 382 note¿ MILITARY ASSISTANCE TO CIVIL AUTHORITIES TO RESPOND TO ACT OR THREAT OF TERRORISM.

(a) AUTHORITY TO PROVIDE ASSISTANCE.—The Secretary of Defense, upon the request of the Attorney General, may provide assistance to civil authorities in responding to an act of terrorism or

threat of an act of terrorism, including an act of terrorism or threat

of an act of terrorism that involves a weapon of mass destruction,

within the United States, if the Secretary determines that—

(1) special capabilities and expertise of the Department of

Defense are necessary and critical to respond to the act of terrorism or the threat of an act of terrorism; and

(2) the provision of such assistance will not adversely affect the military preparedness of the Armed Forces.

(b) NATURE OF ASSISTANCE.—Assistance provided under subsection (a) may include the deployment of Department of Defense

personnel and the use of any Department of Defense resources to

the extent and for such period as the Secretary of Defense determines necessary to prepare for, prevent, or respond to an act or

threat of an act of terrorism described in that subsection. Actions

taken to provide the assistance may include the prepositioning of

Department of Defense personnel, equipment, and supplies.

(c) REIMBURSEMENT.—(1) Except as provided in paragraph (2),

assistance provided under this section shall be provided on a reimbursable basis. Notwithstanding any other provision of law, the

amounts of reimbursement shall be limited to the amounts of the

incremental costs incurred by the Department of Defense to provide the assistance.

(2) In extraordinary circumstances, the Secretary of Defense

may waive the requirement for reimbursement if the Secretary determines that such a waiver is in the national security interests of

the United States and submits to Congress a notification of the determination.

(3) If funds are appropriated for the Department of Justice to

cover the costs of responding to an act or threat of an act of terrorism for which assistance is provided under subsection (a), the

Attorney General shall reimburse the Department of Defense out

of such funds for the costs incurred by the Department in providing

the assistance, without regard to whether the assistance was pro-
705 FY00 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES

vided on a nonreimbursable basis pursuant to a waiver under paragraph (2).

(d) ANNUAL LIMITATION ON FUNDING.—Not more than

$10,000,000 may be obligated to provide assistance under subsection (a) during any fiscal year.

(e) PERSONNEL RESTRICTIONS.—In providing assistance under

this section, a member of the Army, Navy, Air Force, or Marine

Corps may not, unless otherwise authorized by law—

(1) directly participate in a search, seizure, arrest, or other

similar activity; or

(2) collect intelligence for law enforcement purposes.

(f) NONDELEGABILITY OF AUTHORITY.—(1) The Secretary of Defense may not delegate to any other official the authority to make

determinations and to authorize assistance under this section.

(2) The Attorney General may not delegate to any other official

authority to make a request for assistance under subsection (a).

(g) RELATIONSHIP TO OTHER AUTHORITY.—The authority provided in this section is in addition to any other authority available

to the Secretary of Defense, and nothing in this section shall be

construed to restrict any authority regarding use of members of the

Armed Forces or equipment of the Department of Defense that was

in effect before the date of the enactment of this Act.

(h) DEFINITIONS.—In this section:

(1) THREAT OF AN ACT OF TERRORISM.—The term ‘‘threat of

an act of terrorism’’ includes any circumstance providing a

basis for reasonably anticipating an act of terrorism, as determined by the Secretary of Defense in consultation with the Attorney General and the Secretary of the Treasury.

(2) WEAPON OF MASS DESTRUCTION.—The term ‘‘weapon of

mass destruction’’ has the meaning given the term in section

1403 of the Defense Against Weapons of Mass Destruction Act

of 1996 (50 U.S.C. 2302(1)).

(i) DURATION OF AUTHORITY.—The authority provided by this

section applies during the period beginning on October 1, 1999, and

ending on September 30, 2004.

SEC. 1024. ø10 U.S.C. 124 note¿ CONDITION ON DEVELOPMENT OF FORWARD OPERATING LOCATIONS FOR UNITED STATES

SOUTHERN COMMAND COUNTER-DRUG DETECTION AND

MONITORING FLIGHTS.

(a) CONDITION.—Except as provided in subsection (b), none of

the funds appropriated or otherwise made available to the Department of Defense for any fiscal year may be obligated or expended

for the purpose of improving the physical infrastructure at any proposed forward operating location outside the United States from

which the United States Southern Command may conduct counterdrug detection and monitoring flights until a formal agreement regarding the extent and use of, and host nation support for, the forward operating location is executed by both the host nation and the

United States.

(b) EXCEPTION.—The limitation in subsection (a) does not apply

to an unspecified minor military construction project authorized by

section 2805 of title 10, United States Code.
FY98 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES 706

SEC. 1025. ø10 U.S.C. 113 note¿ ANNUAL REPORT ON UNITED STATES

MILITARY ACTIVITIES IN COLOMBIA.

Not later than January 1 of each year, the Secretary of Defense shall submit to the Committee on Armed Services and the

Committee on Foreign Relations of the Senate and the Committee

on Armed Services and the Committee on International Relations

of the House of Representatives a report detailing the number of

members of the United States Armed Forces deployed or otherwise

assigned to duty in Colombia at any time during the preceding

year, the length and purpose of the deployment or assignment, and

the costs and force protection risks associated with such deployments and assignments.

* * * * * * *

d. National Defense Authorization Act for Fiscal Year 1998

(Public Law 105–85, approved Nov. 18, 1996)

TITLE X—GENERAL PROVISIONS

* * * * * * *

Subtitle C—Counter-Drug Activities

* * * * * * *

SEC. 1033. AUTHORITY TO PROVIDE ADDITIONAL SUPPORT FOR

COUNTER-DRUG ACTIVITIES OF OTHER COUNTRIES.

(a) AUTHORITY TO PROVIDE SUPPORT.—(1) Subject to subsection

(f), the Secretary of Defense may provide any of the foreign governments named in subsection (b) with the support described in subsection (c) for the counter-drug activities of that government. In

providing support to a government under this section, the Secretary of Defense shall consult with the Secretary of State.

(2) The authority to provide support to a government under

this section expires September 30, 2006. The support provided

under the authority of this section shall be in addition to support

provided to the governments under any other provision of law.

(b) GOVERNMENTS ELIGIBLE TO RECEIVE SUPPORT.—The foreign governments eligible to receive counter-drug support under

this section are as follows:

(1) The Government of Peru.

(2) The Government of Colombia.

(3) The Government of Afghanistan.

(4) The Government of Bolivia.

(5) The Government of Ecuador.

(6) The Government of Pakistan.

(7) The Government of Tajikistan.

(8) The Government of Turkmenistan.

(9) The Government of Uzbekistan.

(c) TYPES OF SUPPORT.—The authority under subsection (a) is

limited to the provision of the following types of support to a government named in subsection (b):

(1) The types of support specified in paragraphs (1), (2),

and (3) of section 1031(b) of the National Defense Authoriza-
707 FY98 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES

tion Act for Fiscal Year 1997 (Public Law 104–201; 110 Stat.

2637).

(2) The transfer of patrol boats.

(3) The maintenance and repair or upgrade of equipment

of the government that is used for counter-drug activities.

(d) APPLICABILITY OF OTHER SUPPORT AUTHORITIES.—Except as

otherwise provided in this section, the provisions of section 1004 of

the National Defense Authorization Act for Fiscal Year 1991 (Public Law 101–510; 10 U.S.C. 374 note) shall apply to the provision

of support under this section.

(e) FISCAL YEAR 1998 FUNDING; LIMITATION ON OBLIGATIONS.—

(1) Of the amount authorized to be appropriated under section

301(20) for drug interdiction and counter-drug activities, an

amount not to exceed $9,000,000 shall be available for the provision of support under this section.

(2) Amounts made available to carry out this section shall remain available until expended, except that the total amount obligated and expended under this section may not exceed $20,000,000

during any of the fiscal years 1999 through 2003, or $40,000,000

during any of the fiscal years 2004 through 2006.

(f) CONDITION ON PROVISION OF SUPPORT.—(1) The Secretary of

Defense may not obligate or expend funds during a fiscal year to

provide support under this section to a government named in subsection (b) until the end of the 15-day period beginning on the date

on which the Secretary submits to the congressional committees

the written certification described in subsection (g) for that fiscal

year.

(2) In the case of the first fiscal year in which support is to be

provided under this section to a government named in subsection

(b), the obligation or expenditure of funds under this section to provide support to that government shall also be subject to the condition that—

(A) the Secretary submit to the congressional committees

the counter-drug plan described in subsection (h); and

(B) a period of 60 days expires after the date on which the

report is submitted.

(3) In the case of subsequent fiscal years in which support is

to be provided under this section to a government named in subsection (b), the obligation or expenditure of funds under this section

to provide support to that government shall also be subject to the

condition that the Secretary submit to the congressional committees any revision of the counter-drug plan described in subsection

(h) applicable to that government.

(4) For purposes of this subsection, the term ‘‘congressional

committees’’ means the following:

(A) The Committee on Armed Services and the Committee

on Foreign Relations of the Senate.

(B) The Committee on Armed Services and the Committee

on International Relations of the House of Representatives.

(g) REQUIRED CERTIFICATION.—The written certification required by subsection (f)(1) for a fiscal year is a certification of the

following with respect to each government to receive support under

this section:
FY98 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES 708

(1) That the provision of the support to the government

will not adversely affect the military preparedness of the

United States Armed Forces.

(2) That the equipment and materiel provided as support

will be used only by officials and employees of the government

who have undergone background investigations by that government and have been approved by that government to perform

counter-drug activities on the basis of the background investigations.

(3) That the government has certified to the Secretary of

Defense that—

(A) the equipment and materiel provided as support

will be used only by the officials and employees referred to

in paragraph (2);

(B) none of the equipment or materiel will be transferred (by sale, gift, or otherwise) to any person or entity

not authorized by the United States to receive the equipment or materiel; and

(C) the equipment and materiel will be used only for

the purposes intended by the United States Government.

(4) That the government has implemented, to the satisfaction of the Secretary of Defense, a system that will provide an

accounting and inventory of the equipment and materiel provided as support.

(5) That the departments, agencies, and instrumentalities

of the government will grant United States Government personnel access to any of the equipment or materiel provided as

support, or to any of the records relating to such equipment or

materiel, under terms and conditions similar to the terms and

conditions imposed with respect to such access under section

505(a)(3) of the Foreign Assistance Act of 1961 (22 U.S.C.

2314(a)(3)).

(6) That the government will provide security with respect

to the equipment and materiel provided as support that is substantially the same degree of security that the United States

Government would provide with respect to such equipment and

materiel.

(7) That the government will permit continuous observation and review by United States Government personnel of the

use of the equipment and materiel provided as support under

terms and conditions similar to the terms and conditions imposed with respect to such observation and review under section 505(a)(3) of the Foreign Assistance Act of 1961 (22 U.S.C.

2314(a)(3)).

(h) COUNTER-DRUG PLAN.—The Secretary of Defense, in consultation with the Secretary of State, shall prepare for fiscal year

2004 (and revise as necessary for subsequent fiscal years) a

counter-drug plan involving the governments named in subsection

(b) to which support will be provided under this section. The plan

for a fiscal year shall include the following with respect to each

government to receive support under this section:

(1) A detailed security assessment, including a discussion

of the threat posed by illicit drug traffickers in the foreign

country.
709 FY98 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES

(2) An evaluation of previous and ongoing counter-drug operations by the government.

(3) An assessment of the monitoring of past and current

assistance provided by the United States under this section to

the government to ensure the appropriate use of such assistance.

(4) A description of the centralized management and coordination among Federal agencies involved in the development and implementation of the plan.

(5) A description of the roles and missions and coordination among agencies of the government involved in the development and implementation of the plan.

(6) A description of the resources to be contributed by the

Department of Defense and the Department of State for the

fiscal year or years covered by the plan and the manner in

which such resources will be utilized under the plan.

(7) For the first fiscal year in which support is to be provided under this section, a schedule for establishing a counterdrug program that can be sustained by the government within

five years, and for subsequent fiscal years, a description of the

progress made in establishing and carrying out the program.

(8) A reporting system to measure the effectiveness of the

counter-drug program.

(9) A detailed discussion of how the counter-drug program

supports the national drug control strategy of the United

States.

SEC. 1034. ANNUAL REPORT ON DEVELOPMENT AND DEPLOYMENT OF

NARCOTICS DETECTION TECHNOLOGIES.

(a) REPORT REQUIREMENT.—Not later than December 1st of

each year, the Director of the Office of National Drug Control Policy shall submit to Congress and the President a report on the development and deployment of narcotics detection technologies by

Federal agencies. Each such report shall be prepared in consultation with the Secretary of Defense, the Secretary of State, the Secretary of Homeland Security, and the Secretary of the Treasury.

(b) MATTERS TO BE INCLUDED.—Each report under subsection

(a) shall include—

(1) a description of each project implemented by a Federal

agency relating to the development or deployment of narcotics

detection technology;

(2) the agency responsible for each project described in

paragraph (1);

(3) the amount of funds obligated or expended to carry out

each project described in paragraph (1) during the fiscal year

in which the report is submitted or during any fiscal year preceding the fiscal year in which the report is submitted;

(4) the amount of funds estimated to be obligated or expended for each project described in paragraph (1) during any

fiscal year after the fiscal year in which the report is submitted

to Congress; and

(5) a detailed timeline for implementation of each project

described in paragraph (1).
FY97 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES 710

e. National Defense Authorization Act for Fiscal Year 1997

(Public Law 104–201, approved Sept. 23, 1996)

TITLE X—GENERAL PROVISIONS

* * * * * * *

Subtitle C—Counter-Drug Activities

SEC. 1031. AUTHORITY TO PROVIDE ADDITIONAL SUPPORT FOR

COUNTER-DRUG ACTIVITIES OF MEXICO.

(a) AUTHORITY TO PROVIDE ADDITIONAL SUPPORT.—Subject to

subsection (e), during fiscal years 1997 and 1998, the Secretary of

Defense may provide the Government of Mexico with the support

described in subsection (b) for the counter-drug activities of the

Government of Mexico. In providing support to the Government of

Mexico under this section, the Secretary of Defense shall consult

with the Secretary of State. The support provided under the authority of this subsection shall be in addition to support provided

to the Government of Mexico under any other provision of law.

(b) TYPES OF SUPPORT.—The authority under subsection (a) is

limited to the provision of the following types of support:

(1) The transfer of nonlethal protective and utility personnel equipment.

(2) The transfer of the following nonlethal specialized

equipment:

(A) Navigation equipment.

(B) Secure and nonsecure communications equipment.

(C) Photo equipment.

(D) Radar equipment.

(E) Night vision systems.

(F) Repair equipment and parts for equipment referred to in subparagraphs (A), (B), (C), (D), and (E).

(3) The transfer of nonlethal components, accessories, attachments, parts (including ground support equipment),

firmware, and software for aircraft or patrol boats, and related

repair equipment.

(4) The maintenance and repair of equipment of the Government of Mexico that is used for counter-drug activities.

(c) APPLICABILITY OF OTHER SUPPORT AUTHORITIES.—Except as

otherwise provided in this section, the provisions of section 1004 of

the National Defense Authorization Act for Fiscal Year 1991 (Public Law 101–510; 10 U.S.C. 374 note) shall apply to the provision

of support under this section.

(d) FUNDING.—Of the amount authorized to be appropriated

under section 301(19) for drug interdiction and counter-drug activities, an amount not to exceed $8,000,000 shall be available for the

provision of support under this section. Funds made available for

fiscal year 1997 under this subsection and unobligated by September 30, 1997, may be obligated during fiscal year 1998. No

funds are authorized to be appropriated for fiscal year 1998 for the

provision of support under this section.

(e) LIMITATIONS.—(1) The Secretary may not obligate or expend

funds to provide support under this section until 15 days after the
711 FY97 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES

date on which the Secretary submits to the committees referred to

in paragraph (3) the certification described in paragraph (2).

(2) The certification referred to in paragraph (1) is a written

certification of the following:

(A) That the provision of support under this section will

not adversely affect the military preparedness of the United

States Armed Forces.

(B) That the equipment and materiel provided as support

will be used only by officials and employees of the Government

of Mexico who have undergone a background check by that

government.

(C) That the Government of Mexico has certified to the

Secretary that—

(i) the equipment and material provided as support

will be used only by the officials and employees referred to

in subparagraph (B);

(ii) none of the equipment or materiel will be transferred (by sale, gift, or otherwise) to any person or entity

not authorized by the United States to receive the equipment or materiel; and

(iii) the equipment and materiel will be used only for

the purposes intended by the United States Government.

(D) That the Government of Mexico has implemented, to

the satisfaction of the Secretary, a system that will provide an

accounting and inventory of the equipment and materiel provided as support.

(E) That the departments, agencies, and instrumentalities

of the Government of Mexico will grant United States Government personnel access to any of the equipment or materiel provided as support, or to any of the records relating to such

equipment or materiel, under terms and conditions similar to

the terms and conditions imposed with respect to such access

under section 505(a)(3) of the Foreign Assistance Act of 1961

(22 U.S.C. 2314(a)(3)).

(F) That the Government of Mexico will provide security

with respect to the equipment and materiel provided as support that is substantially the same degree of security that the

United States Government would provide with respect to such

equipment and materiel.

(G) That the Government of Mexico will permit continuous

observation and review by United States Government personnel of the use of the equipment and materiel provided as

support under terms and conditions similar to the terms and

conditions imposed with respect to such observation and review

under section 505(a)(3) of the Foreign Assistance Act of 1961

(22 U.S.C. 2314(a)(3)).

(3) The committees referred to in this paragraph are the

following:

(A) The Committee on Armed Services and the Committee

on Foreign Relations of the Senate.

(B) The Committee on National Security and the Committee on International Relations of the House of Representatives.
FY95 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES 712

f. National Defense Authorization Act for Fiscal Year 1995

(Public Law 103–337, approved Oct. 5, 1994)

TITLE X—GENERAL PROVISIONS

* * * * * * *

Subtitle B—Counter-Drug Activities

SEC. 1011. DEPARTMENT OF DEFENSE SUPPORT FOR COUNTER-DRUG

ACTIVITIES.

(a) [Omitted—Amendment]

(b) ø10 U.S.C. 374 note¿ CONDITION ON TRANSFER OF FUNDS.— Funds appropriated for the Department of Defense may not be

transferred to a National Drug Control Program agency account except to the extent provided in a law that specifically states—

(1) the amount authorized to be transferred;

(2) the account from which such amount is authorized to

be transferred; and

(3) the account to which such amount is authorized to be

transferred.

(c) CONDITION ON DETAILING PERSONNEL.—Personnel of the

Department of Defense may not be detailed to another department

or agency in order to implement the National Drug Control Strategy unless the Secretary of Defense certifies to Congress that the

detail of such personnel is in the national security interest of the

United States.

(d) RELATIONSHIP TO OTHER LAW.—A provision of law may not

be construed as modifying or superseding the provisions of subsection (b) or (c) unless that provision of law—

(1) specifically refers to this section; and

(2) specifically states that such provision of law modifies or

supersedes the provisions of subsection (b) or (c), as the case

may be.

SEC. 1012. ø22 U.S.C. 2291–4¿ OFFICIAL IMMUNITY FOR AUTHORIZED

EMPLOYEES AND AGENTS OF THE UNITED STATES AND

FOREIGN COUNTRIES ENGAGED IN INTERDICTION OF

AIRCRAFT USED IN ILLICIT DRUG TRAFFICKING.

(a) EMPLOYEES AND AGENTS OF FOREIGN COUNTRIES.—Notwithstanding any other provision of law, it shall not be unlawful

for authorized employees or agents of a foreign country (including

members of the armed forces of that country) to interdict or attempt to interdict an aircraft in that country’s territory or airspace

if—

(1) that aircraft is reasonably suspected to be primarily engaged in illicit drug trafficking; and

(2) the President of the United States has, during the 12-

month period ending on the date of the interdiction, certified

to Congress with respect to that country that—

(A) interdiction is necessary because of the extraordinary threat posed by illicit drug trafficking to the national security of that country; and

(B) the country has appropriate procedures in place to

protect against innocent loss of life in the air and on the

ground in connection with interdiction, which shall at a
713 FY95 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES

minimum include effective means to identify and warn an

aircraft before the use of force directed against the aircraft.

(b) EMPLOYEES AND AGENTS OF THE UNITED STATES.—Notwithstanding any other provision of law, it shall not be unlawful for authorized employees or agents of the United States (including members of the Armed Forces of the United States) to provide assistance for the interdiction actions of foreign countries authorized

under subsection (a). The provision of such assistance shall not give

rise to any civil action seeking money damages or any other form

of relief against the United States or its employees or agents (including members of the Armed Forces of the United States).

(c) ANNUAL REPORT.—(1) Except as provided in paragraph (2),

not later than February 1 each year, the President shall submit to

Congress a report on the assistance provided under subsection (b)

during the preceding calendar year. Each report shall include for

the calendar year covered by such report the following:

(A) A list specifying each country for which a certification

referred to in subsection (a)(2) was in effect for purposes of

that subsection during any portion of such calendar year, including the nature of the illicit drug trafficking threat to each

such country.

(B) A detailed explanation of the procedures referred to in

subsection (a)(2)(B) in effect for each country listed under subparagraph (A), including any training and other mechanisms

in place to ensure adherence to such procedures.

(C) A complete description of any assistance provided

under subsection (b).

(D) A summary description of the aircraft interception activity for which the United States Government provided any

form of assistance under subsection (b).

(2) In the case of a report required to be submitted under paragraph (1) to the congressional intelligence committees (as defined

in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)),

the submittal date for such report shall be as provided in section

507 of that Act.

(3) Each report under paragraph (1) shall be submitted in unclassified form, but may include a classified annex.

(d) DEFINITIONS.—For purposes of this section:

(1) The terms ‘‘interdict’’ and ‘‘interdiction’’, with respect to

an aircraft, mean to damage, render inoperative, or destroy the

aircraft.

(2) The term ‘‘illicit drug trafficking’’ means illicit trafficking in narcotic drugs, psychotropic substances, and other

controlled substances, as such activities are described by any

international narcotics control agreement to which the United

States is a signatory, or by the domestic law of the country in

whose territory or airspace the interdiction is occurring.

(3) The term ‘‘assistance’’ includes operational, training, intelligence, logistical, technical, and administrative assistance.
FY93 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES 714

g. National Defense Authorization Act for Fiscal Year 1993

(Public Law 102–484, approved Oct. 23 1992)

TITLE X—GENERAL PROVISIONS

* * * * * * *

Subtitle E—Counter-Drug Activities

* * * * * * *

SEC. 1043. [10 U.S.C. 124 note] COUNTER-DRUG DETECTION AND MONITORING SYSTEMS PLAN.

(a) REQUIREMENTS OF DETECTION AND MONITORING SYSTEMS.—

The Secretary of Defense shall establish requirements for counterdrug detection and monitoring systems to be used by the Department of Defense in the performance of its mission under section

124(a) of title 10, United States Code, as lead agency of the Federal

Government for the detection and monitoring of the transit of illegal drugs into the United States. Such requirements shall be

designed—

(1) to minimize unnecessary redundancy between counterdrug detection and monitoring systems;

(2) to grant priority to assets and technologies of the Department of Defense that are already in existence or that

would require little additional development to be available for

use in the performance of such mission;

(3) to promote commonality and interoperability between

counter-drug detection and monitoring systems in a cost-effective manner; and

(4) to maximize the potential of using counter-drug detection and monitoring systems for other defense missions whenever practicable.

(b) EVALUATION OF SYSTEMS.—The Secretary of Defense shall

identify and evaluate existing and proposed counter-drug detection

and monitoring systems in light of the requirements established

under subsection (a). In carrying out such evaluation, the Secretary

shall—

(1) assess the capabilities, strengths, and weaknesses of

counter-drug detection and monitoring systems; and

(2) determine the optimal and most cost-effective combination of use of counter-drug detection and monitoring systems to

carry out activities relating to the reconnaissance, detection,

and monitoring of drug traffic.

(c) SYSTEMS PLAN.—Based on the results of the evaluation

under subsection (b), the Secretary of Defense shall prepare a plan

for the development, acquisition, and use of improved counter-drug

detection and monitoring systems by the Armed Forces. In developing the plan, the Secretary shall also make every effort to determine which counter-drug detection and monitoring systems should

be eliminated from the counter-drug program based on the results

of such evaluation. The plan shall include an estimate by the Secretary of the full cost to implement the plan, including the cost to

develop, procure, operate, and maintain equipment used in counter-
715 FY93 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES

drug detection and monitoring activities performed under the plan

and training and personnel costs associated with such activities.

(d) REPORT.—Not later than six months after the date of the

enactment of this Act [Oct. 23, 1992], the Secretary of Defense

shall submit to Congress a report on the requirements established

under subsection (a) and the results of the evaluation conducted

under subsection (b). The report shall include the plan prepared

under subsection (c).

(e) LIMITATION ON OBLIGATION OF FUNDS.—(1) Except as provided in paragraph (2), none of the funds appropriated or otherwise

made available for the Department of Defense for fiscal year 1993

pursuant to an authorization of appropriations in this Act may be

obligated or expended for the procurement or upgrading of a

counter-drug detection and monitoring system, for research and development with respect to such a system, or for the lease or rental

of such a system until after the date on which the Secretary of Defense submits to Congress the report required under subsection (d).

(2) Paragraph (1) shall not prohibit obligations or expenditures

of funds for—

(A) any procurement, upgrading, research and development, or lease of a counter-drug detection and monitoring system that is necessary to carry out the evaluation required

under subsection (b); or

(B) the operation and maintenance of counter-drug detection and monitoring systems used by the Department of Defense as of the date of the enactment of this Act.

(f) DEFINITION.—For purposes of this section, the term

‘‘counter-drug detection and monitoring systems’’ means land-,

air-, and sea-based detection and monitoring systems suitable for

use by the Department of Defense in the performance of its

mission—

(1) under section 124(a) of title 10, United States Code, as

lead agency of the Federal Government for the detection and

monitoring of the aerial and maritime transit of illegal drugs

into the United States; and

(2) to provide support to law enforcement agencies in the

detection, monitoring, and communication of the movement of

traffic at, near, and outside the geographic boundaries of the

United States.

SEC. 1044. EXTENSION OF AUTHORITY TO TRANSFER EXCESS PERSONAL PROPERTY.

[Omitted—Amendment]

SEC. 1045. PILOT OUTREACH PROGRAM TO REDUCE DEMAND FOR ILLEGAL DRUGS.

[Repealed by section 571(b) of the National Defense Authorization Act for Fiscal Year 1996 (Public Law 104–106).]
FY91 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES 716

h. National Defense Authorization Act for Fiscal Year 1991

(Public Law 101–510, approved Nov. 5, 1990)

TITLE X—DRUG INTERDICTION AND COUNTER-DRUG

ACTIVITIES

* * * * * * *

SEC. 1004. ø10 U.S.C. 374 note¿ ADDITIONAL SUPPORT FOR COUNTERDRUG ACTIVITIES

(a) SUPPORT TO OTHER AGENCIES.—During fiscal years 1991

through 2002, the Secretary of Defense may provide support for the

counter-drug activities of any other department or agency of the

Federal Government or of any State, local, or foreign law enforcement agency for any of the purposes set forth in subsection (b) if

such support is requested—

(1) by the official who has responsibility for the counterdrug activities of the department or agency of the Federal Government, in the case of support for other departments or agencies of the Federal Government;

(2) by the appropriate official of a State or local government, in the case of support for State or local law enforcement

agencies; or

(3) by an appropriate official of a department or agency of

the Federal Government that has counter-drug responsibilities,

in the case of support for foreign law enforcement agencies.

(b) TYPES OF SUPPORT.—The purposes for which the Secretary

may provide support under subsection (a) are the following:

(1) The maintenance and repair of equipment that has

been made available to any department or agency of the Federal Government or to any State or local government by the

Department of Defense for the purposes of—

(A) preserving the potential future utility of such

equipment for the Department of Defense; and

(B) upgrading such equipment to ensure compatibility

of that equipment with other equipment used by the Department of Defense.

(2) The maintenance, repair, or upgrading of equipment

(including computer software), other than equipment referred

to in subparagraph (A) for the purpose of—

(A) ensuring that the equipment being maintained or

repaired is compatible with equipment used by the Department of Defense; and

(B) upgrading such equipment to ensure the compatibility of that equipment with equipment used by the Department of Defense.

(3) The transportation of personnel of the United States

and foreign countries (including per diem expenses associated

with such transportation), and the transportation of supplies

and equipment, for the purpose of facilitating counter-drug activities within or outside the United States.

(4) The establishment (including an unspecified minor

military construction project) and operation of bases of operations or training facilities for the purpose of facilitating

counter-drug activities of the Department of Defense or any
717 FY91 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES

Federal, State, or local law enforcement agency within or outside the United States or counter-drug activities of a foreign

law enforcement agency outside the United States.

(5) Counter-drug related training of law enforcement personnel of the Federal Government, of State and local governments, and of foreign countries, including associated support

expenses for trainees and the provision of materials necessary

to carry out such training.

(6) The detection, monitoring, and communication of the

movement of—

(A) air and sea traffic within 25 miles of and outside

the geographic boundaries of the United States; and

(B) surface traffic outside the geographic boundary of

the United States and within the United States not to exceed 25 miles of the boundary if the initial detection occurred outside of the boundary.

(7) Construction of roads and fences and installation of

lighting to block drug smuggling corridors across international

boundaries of the United States.

(8) Establishment of command, control, communications,

and computer networks for improved integration of law enforcement, active military, and National Guard activities.

(9) The provision of linguist and intelligence analysis services.

(10) Aerial and ground reconnaissance.

(c) LIMITATION ON COUNTER-DRUG REQUIREMENTS.—The Secretary of Defense may not limit the requirements for which support

may be provided under subsection (a) only to critical, emergent, or

unanticipated requirements.

(d) CONTRACT AUTHORITY.—In carrying out subsection (a), the

Secretary of Defense may acquire services or equipment by contract

for support provided under that subsection if the Department of

Defense would normally acquire such services or equipment by contract for the purpose of conducting a similar activity for the Department of Defense.

(e) LIMITED WAIVER OF PROHIBITION.—Notwithstanding section

376 of title 10, United States Code, the Secretary of Defense may

provide support pursuant to subsection (a) in any case in which the

Secretary determines that the provision of such support would adversely affect the military preparedness of the United States in the

short term if the Secretary determines that the importance of providing such support outweighs such short-term adverse effect.

(f) CONDUCT OF TRAINING OR OPERATION TO AID CIVILIAN

AGENCIES.—In providing support pursuant to subsection (a), the

Secretary of Defense may plan and execute otherwise valid military

training or operations (including training exercises undertaken

pursuant to section 1206(a) of the National Defense Authorization

Act for Fiscal Years 1990 and 1991 (Public Law 101–189; 103 Stat.

1564)) for the purpose of aiding civilian law enforcement agencies.

(g) RELATIONSHIP TO OTHER LAWS.—(1) The authority provided

in this section for the support of counter-drug activities by the Department of Defense is in addition to, and except as provided in

paragraph (2), not subject to the requirements of chapter 18 of title

10, United States Code.
FY91 DRUG INTERDICTION AND COUNTER-DRUG ACTIVITIES 718

(2) Support under this section shall be subject to the provisions

of section 375 and, except as provided in subsection (e), section 376

of title 10, United States Code.

(h) CONGRESSIONAL NOTIFICATION OF FACILITIES PROJECTS.—

(1) When a decision is made to carry out a military construction

project described in paragraph (2), the Secretary of Defense shall

submit to the congressional defense committees written notice of

the decision, including the justification for the project and the estimated cost of the project. The project may be commenced only after

the end of the 21-day period beginning on the date on which the

written notice is received by Congress.

(2) Paragraph (1) applies to an unspecified minor military construction project that—

(A) is intended for the modification or repair of a Department of Defense facility for the purpose set forth in subsection

(b)(4); and

(B) has an estimated cost of more than $500,000.
719

10. SPOILS OF WAR ACT OF 1994

(Part B of title V of Public Law 103–236, approved Apr. 30, 1994)

PART B—SPOILS OF WAR ACT

SEC. 551. ø50 U.S.C. 2201 note¿ SHORT TITLE.

This part may be cited as the ‘‘Spoils of War Act of 1994’’.

SEC. 552. ø50 U.S.C. 2201¿ TRANSFERS OF SPOILS OF WAR.

(a) ELIGIBILITY FOR TRANSFER.—Spoils of war in the possession, custody, or control of the United States may be transferred

to any other party, including any government, group, or person, by

sale, grant, loan or in any other manner, only to the extent and in

the same manner that property of the same type, if otherwise

owned by the United States, may be so transferred.

(b) TERMS AND CONDITIONS.—Any transfer pursuant to subsection (a) shall be subject to all of the terms, conditions, and requirements applicable to the transfer of property of the same type

otherwise owned by the United States.

SEC. 553. ø50 U.S.C. 2202¿ PROHIBITION ON TRANSFERS TO COUNTRIES

WHICH SUPPORT TERRORISM.

Spoils of war in the possession, custody, or control of the

United States may not be transferred to any country determined by

the Secretary of State, for purposes of section 40 of the Arms Export Control Act [22 U.S.C. 2780], to be a nation whose government

has repeatedly provided support for acts of international terrorism.

SEC. 554. ø50 U.S.C. 2203¿ REPORT ON PREVIOUS TRANSFERS.

Not later than 90 days after the date of enactment of this Act

[April 30, 1994], the President shall submit to the appropriate congressional committees a report describing any spoils of war obtained subsequent to August 2, 1990 that were transferred to any

party, including any government, group, or person, before the date

of enactment of this Act [April 30, 1994]. Such report shall be submitted in unclassified form to the extent possible.

SEC. 555. ø50 U.S.C. 2204¿ DEFINITIONS.

As used in this part—

(1) the term ‘‘appropriate congressional committees’’ means

the Committee on Foreign Relations of the Senate and the

Committee on Foreign Affairs of the House of Representatives,

or, where required by law for certain reporting purposes, the

Select Committee on Intelligence of the Senate and the Select

Committee on Intelligence of the House of Representatives;

(2) the term ‘‘enemy’’ means any country, government,

group, or person that has been engaged in hostilities, whether

or not lawfully authorized, with the United States;
Sec. 556 SPOILS OF WAR ACT OF 1994 720

1See section 2579 of title 10, United States Code, regarding procedures for handling and retaining battlefield objects by members of the Armed Forces.

(3) the term ‘‘person’’ means—

(A) any natural person;

(B) any corporation, partnership, or other legal entity;

and

(C) any organization, association, or group; and

(4) the term ‘‘spoils of war’’ means enemy movable property lawfully captured, seized, confiscated, or found which has

become United States property in accordance with the laws of

war.

SEC. 556. ø50 U.S.C. 2205¿ CONSTRUCTION.

Nothing in this part shall apply to—

(1) the abandonment or failure to take possession of spoils

of war by troops in the field for valid military reasons related

to the conduct of the immediate conflict, including the burden

of transporting such property or a decision to allow allied

forces to take immediate possession of certain property solely

for use during an ongoing conflict;

(2) the abandonment or return of any property obtained,

borrowed, or requisitioned for temporary use during military

operations without intent to retain possession of such property;

(3) the destruction of spoils of war by troops in the field;

(4) the return of spoils of war to previous owners from

whom such property had been seized by enemy forces; or

(5) 1 minor articles of personal property which have lawfully become the property of individual members of the armed

forces as war trophies pursuant to public written authorization

from the Department of Defense.
721

11. DEFENSE PRODUCTION ACT OF 1950

(Act of September 8, 1950; 50 U.S.C. App. 2061 et seq.)

AN ACT To establish a system of priorities and allocations for materials and facilities, authorize the requisitioning thereof, provide financial assistance for expansion of productive capacity and supply, provide for price and wage stabilization,

provide for the settlement of labor disputes, strengthen controls over credit, and

by these measures facilitate the production of goods and services necessary for the

national security, and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That this Act, ø50

U.S.C. App. 2061¿ divided into titles, may be cited as ‘‘the Defense

Production Act of 1950.’’

SEC. 2. ø50 U.S.C. App. 2062¿ DECLARATION OF POLICY.

(a) FINDINGS.—The Congress finds that—

(1) the vitality of the industrial and technology base of the

United States is a foundation of national security that provides

the industrial and technological capabilities employed to meet

national defense requirements, in peacetime and in time of national emergency;

(2) in peacetime, the health of the industrial and technological base contributes to the technological superiority of

United States defense equipment, which is a cornerstone of the

national security strategy, and the efficiency with which defense equipment is developed and produced;

(3) in times of crisis, a healthy industrial base will be able

to effectively provide the graduated response needed to effectively meet the demands of the emergency;

(4) in view of continuing international problems, the Nation’s demonstrated reliance on imports of materials and components, and the need for measures to reduce defense production lead times and bottlenecks, and in order to provide for the

national defense and national security, the United States defense mobilization preparedness effort continues to require the

development of—

(A) preparedness programs;

(B) domestic defense industrial base improvement

measures;

(C) provisions for a graduated response to any threatening international or military situation;

(D) the expansion of domestic productive capacity beyond the levels needed to meet the civilian demand; and

(E) some diversion of certain materials and facilities

from civilian use to military and related purposes.

(5) to meet the requirements referred to in this subsection,

this Act affords to the President an array of authorities to

shape defense preparedness programs and to take appropriate
Sec. 2 DEFENSE PRODUCTION ACT OF 1950 722

steps to maintain and enhance the defense industrial and technological base;

(6) the activities referred to in this subsection are needed

in order to—

(A) improve domestic defense industrial base efficiency

and responsiveness;

(B) reduce the time required for industrial mobilization in the event of an attack on the United States; or

(C) to respond to actions occurring outside of the

United States which could result in the termination or reduction of the availability of strategic and critical materials, including energy, and which could adversely affect

the national defense preparedness of the United States;

(7) in order to ensure national defense preparedness,

which is essential to national security, it is necessary and appropriate to assure the availability of domestic energy supplies

for national defense needs;

(8) to further assure the adequate maintenance of the defense industrial base, to the maximum extent possible, such

supplies should be augmented through reliance on renewable

fuels, including solar, geothermal, and wind energy and ethanol and its derivatives, and on energy conservation measures;

(9) the domestic defense industrial base is a component

part of the core industrial capacity of the Nation;

(10) much of the industrial capacity which is relied upon

by the Federal Government for military production and other

defense-related purposes is deeply and directly influenced by—

(A) the overall competitiveness of the United States

industrial economy; and

(B) the ability of United States industry, in general, to

produce internationally competitive products and operate

profitably while maintaining adequate research and development to preserve that competitive edge in the future,

with respect to military and civilian production;

(11) the domestic defense industrial base is developing a

growing dependency on foreign sources for critical components

and materials used in manufacturing and assembling major

weapons systems for the national defense;

(12) such dependence is threatening the capability of many

critical industries to respond rapidly to defense production

needs in the event of war or other hostilities or diplomatic confrontation; and

(13) the inability of United States industry, especially

smaller subcontractors and suppliers, to provide vital parts

and components and other materials would impair our ability

to sustain United States Armed Forces in combat for longer

than a short period.

(b) STATEMENT OF POLICY.—It is the policy of the United

States that—

(1) in order to ensure productive capacity in the event of

an attack on the United States, the United States should encourage the geographic dispersal of industrial facilities in the

United States to discourage the concentration of such produc-
723 Sec. 101 DEFENSE PRODUCTION ACT OF 1950

tive facilities within limited geographic areas which are vulnerable to attack by an enemy of the United States;

(2) to ensure that essential mobilization requirements are

met, consideration should also be given to stockpiling strategic

materials to the extent that such stockpiling is economical and

feasible;

(3) in the construction of any Government-owned industrial facility, in the rendition of any Government financial assistance for the construction, expansion, or improvement of any

industrial facility, and in the production of goods and services,

under this or any other Act, each department and agency of

the executive branch should apply, under the coordination of

the Federal Emergency Management Agency, when practicable

and consistent with existing law and the desirability for maintaining a sound economy, the principle of the geographic dispersal of such facilities in the interest of national defense, except that nothing in this paragraph shall preclude the use of

existing industrial facilities;

(4) to ensure the adequacy of productive capacity and supply, executive agencies and departments responsible for defense acquisition should continuously assess the capability of

the domestic defense industrial base to satisfy peacetime requirements as well as increased mobilization production requirements, specifically evaluating the availability of adequate

production sources, including subcontractors and suppliers,

materials, skilled labor, and professional and technical personnel;

(5) every effort should be made to foster cooperation between the defense and commercial sectors for research and development and for acquisition of materials, components, and

equipment; and

(6) plans and programs to carry out this section shall be

undertaken with due consideration for promoting efficiency

and competition.

TITLE I—PRIORITIES AND ALLOCATIONS

SEC. 101. ø50 U.S.C. App. 2071¿ (a) The President is hereby

authorized (1) to require that performance under contracts or orders (other than contracts of employment) which he deems necessary or appropriate to promote the national defense shall take

priority over performance under any other contract or order, and

for the purpose of assuring such priority, to require acceptance and

performance of such contracts or orders in preference to other contracts or orders by any person he finds to be capable of their performance, and (2) to allocate materials, services, and facilities in

such manner, upon such conditions, and to such extent as he shall

deem necessary or appropriate to promote the national defense.

(b) The powers granted in this section shall not be used to control the general distribution of any material in the civilian market

unless the President finds (1) that such material is a scarce and

critical material essential to the national defense, and (2) that the

requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the nor-
Sec. 103 DEFENSE PRODUCTION ACT OF 1950 724

1Section 6(3) of Public Law 102–99 amended section 101 by striking paragraphs (2) and (3)

and inserting a new paragraph (2). The amendment probably should have been made to subsection (c) of section 101. 2Section 6(4) of Public Law 102–99 amended section 101 by redesignating paragraph (4) as

(3). The amendment probably should have been made to subsection (c) of section 101.

mal distribution of such material in the civilian market to such a

degree as to create appreciable hardship.

(c)(1) Notwithstanding any other provision of this Act, the

President may, by rule or order, require the allocation of, or the

priority performance under contracts or orders (other than contracts of employment) relating to, materials, equipment, and services in order to maximize domestic energy supplies if he makes the

findings required by paragraph (3) of this subsection.

(2) 1 The authority granted by this subsection may not be used

to require priority performance of contracts or orders, or to control

the distribution of any supplies of materials, services, and facilities

in the marketplace, unless the President finds that—

(A) such materials, services, and facilities are scarce, critical, and essential—

(i) to maintain or expand exploration, production, refining, transportation;

(ii) to conserve energy supplies; or

(iii) To construct or maintain energy facilities; and

(B) maintenance or expansion of exploration, production,

refining, transportation, or conseruation of energy supplies or

the construction and maintenance of energy facilities cannot

reasonably be accomplished without exercising the authority

specified in paragraph (1) of this subsection.

(3) 2 During any period when the authority conferred by this

subsection is being exercised, the President shall take such action

as may be appropriate to assure that such authority is being exercised in a manner which assures the coordinated administration of

such authority with any priorities or allocations established under

subsection (a) of this section and in effect during the same period.

SEC. 102. ø50 U.S.C. App. 2072¿ In order to prevent hoarding,

no person shall accumulate (1) in excess of the reasonable demands

of business, personal, or home consumption, or (2) for the purpose

of resale at prices in excess of prevailing market prices, materials

which have been designated by the President as scarce materials

or materials the supply of which would be threatened by such accumulation. The President shall order published in the Federal Register, and in such other manner as he may deem appropriate, every

designation of materials the accumulation of which is unlawful and

any withdrawal of such designation. In making such designations

the President may prescribe such conditions with respect to the accumulation of materials in excess of the reasonable demands of

business, personal, or home consumption as he deems necessary to

carry out the objectives of this Act. This section shall not be construed to limit the authority contained in sections 101 and 704 of

this Act.

SEC. 103. ø50 U.S.C. App. 2073¿ Any person who willfully performs any act prohibited, or willfully fails to perform any act required, by the provisions of this title or any rule, regulation, or
725 Sec. 107 DEFENSE PRODUCTION ACT OF 1950

order thereunder, shall, upon conviction, be fined not more than

$10,000 or imprisoned for not more than one year, or both.

SEC. 104. ø50 U.S.C. App. 2074¿ LIMITATION ON ACTIONS WITHOUT

CONGRESSIONAL AUTHORIZATION.

(a) WAGE OR PRICE CONTROLS.—No provision of this Act shall

be interpreted as providing for the imposition of wage or price controls without the prior authorization of such action by a joint resolution of Congress.

(b) CHEMICAL OR BIOLOGICAL WEAPONS.—No provision of title

I of this Act shall be exercised or interpreted to require action or

compliance by any private person to assist in any way in the production of or other involvement in chemical or biological warfare

capabilities, unless authorized by the President (or the President’s

designee who is serving in a position at level I of the Executive

Schedule in accordance with section 5312 of title 5, United States

Code) without further redelegation.

SEC. 105. ø50 U.S.C. App. 2075¿ Nothing in this Act shall be

construed to authorize the President to institute, without the approval of the Congress, a program for the rationing of gasoline

among classes of end-users.

SEC. 106. ø50 U.S.C. App. 2076¿ For purposes of this Act, ‘‘energy’’ shall be designated as a ‘‘strategic and critical material’’ after

the date of the enactment of this section: Provided, That no provision of this Act shall, by virtue of such designation—

(1) grant any new direct or indirect authority to the President for the mandatory allocation or pricing of any fuel or feedstock (including, but not limited to, crude oil, residual fuel oil,

any refined petroleum product, natural gas, or coal) or electricity or any other form of energy; or

(2) grant any new direct or indirect authority to the President to engage in the production of energy in any manner

whatsoever (such as oil and gas exploration and development,

or any energy facility construction), except as expressly provided in sections 305 and 306 for synthetic fuel production.

SEC. 107. ø50 U.S.C. App. 2077¿ STRENGTHENING DOMESTIC CAPABILITY.

(a) IN GENERAL.—Utilizing the authority of title III of this Act

or any other provision of law, the President may provide appropriate incentives to develop, maintain, modernize, and expand the

productive capacities of domestic sources for critical components,

critical technology items, and industrial resources essential for the

execution of the national security strategy of the United States.

(b) CRITICAL COMPONENTS AND CRITICAL TECHNOLOGY ITEMS.—

(1) IDENTIFICATION.—

(A) IN GENERAL.—The President, acting through the

Secretary of Defense, shall identify critical components

and critical technology items for each item on the Critical

Items List of the Commanders-in-Chief of the Unified and

Specified Commands and other items within the inventory

of weapon systems and defense equipment.

(B) DEFINITION.—Any component identified as critical

by a National Security Assessment conducted pursuant to

section 113(i) of title 10, United States Code, or by a Presi-
Sec. 108 DEFENSE PRODUCTION ACT OF 1950 726

dential determination as a result of a petition filed under

section 232 of the Trade Expansion Act of 1962 shall be

designated as a critical component for purposes of this Act,

unless the President determines that the designation is

unwarranted.

(2) MAINTENANCE OF RELIABLE SOURCES OF SUPPLY.—The

President shall take appropriate actions to assure that critical

components or critical technology items are available from reliable sources when needed to meet defense requirements during

peacetime, graduated mobilization, and national emergency.

(3) APPROPRIATE ACTION.—For purposes of this subsection,

appropriate action may include—

(A) restricting contract solicitations to reliable sources;

(B) restricting contract solicitations to domestic

sources pursuant to—

(i) section 2304(b)(1)(B) or section 2304(c)(3) of

title 10, United States Code;

(ii) section 303(b)(1)(B) or section 303(c)(3) of the

Federal Property and Administrative Services Act of

1949; or

(iii) other statutory authority;

(C) stockpiling critical components; and

(D) developing substitutes for a critical component or

a critical technology item.

SEC. 108. ø50 U.S.C. App. 2078¿ MODERNIZATION OF SMALL BUSINESS

SUPPLIERS.

(a) IN GENERAL.—In providing any assistance under this Act,

the President shall accord a strong preference for small business

concerns which are subcontractors or suppliers, and, to the maximum extent practicable, to such small business concerns located in

areas of high unemployment or areas that have demonstrated a

continuing pattern of economic decline, as identified by the Secretary of Labor.

(b) MODERNIZATION OF EQUIPMENT.—

(1) IN GENERAL.—Funds authorized under title III may be

used to guarantee the purchase or lease of advance manufacturing equipment, and any related services with respect to any

such equipment for purposes of this Act.

(2) SMALL BUSINESS SUPPLIERS.—In considering proposals

for title III projects under paragraph (1), the President shall

provide a strong preference for proposals submitted by a small

business supplier or subcontractor whose proposal—

(A) has the support of the department or agency which

will provide the guarantee;

(B) reflects that the small business concern has made

arrangements to obtain qualified outside assistance to support the effective utilization of the advanced manufacturing equipment being proposed for installation; and

(C) meets the requirements of section 301, 302, or 303.

TITLE II—AUTHORITY TO REQUISITION AND CONDEMN

øThe authority to condemn was added by section 102 of the

Defense Production Act Amendments of 1951, 65 Stat. 132–133,
727 Sec. 301 DEFENSE PRODUCTION ACT OF 1950

July 31, 1951. The title was terminated at the close of June 30,

1953, by section 11 of the Defense Production Act Amendments of

1953, 67 Stat. 131, June 30, 1953.¿

TITLE III—EXPANSION OF PRODUCTIVE CAPACITY AND

SUPPLY

SEC. 301. ø50 U.S.C. App. 2091¿ (a)(1) In order to expedite production and deliveries or services under Government contracts, the

President may authorize, subject to such regulations as he may

prescribe, the Department of Defense, the Department of Energy,

the Department of Commerce, and such other agencies of the

United States engaged in procurement for the national defense as

he may designate (herein-after referred to as ‘‘guaranteeing agencies’’) without regard to provisions of law relating to the making,

performance, amendment, or modification of contracts, to guarantee in whole or in part any public or private financing institution

(including any Federal Reserve bank), by commitment to purchase,

agreement to share losses, or otherwise, against loss of principal or

interest on any loan, discount or advance, or on any commitment

in connection therewith, which may be made by such financing institution for the purpose of financing any contractor, subcontractor,

or other person in connection with the performance of any contract

or other operation deemed by the guaranteeing agency to be necessary to expedite or expand production and deliveries or services

under Government contracts for the procurement of industrial resources or critical technology items essential to the national defense, or for the purpose of financing any contractor, subcontractor,

or other person in connection with or in contemplation of the termination, in the interest of the United States, of any contract made

for the national defense; but no small-business concern (as defined

in section 702(16)) shall be held ineligible for the issuance of such

a guaranty by reason of alternative sources of supply.

(2) Except as provided in section 305 and section 306, no authority contained in section 301, 302, or 303 may be used in any

manner—

(A) in the development, production, or distribution of synthetic fuel.;

(B) for any synthetic fuel project;

(C) to assist any person for the purpose of providing goods

or services to a synthetic fuel project; or

(D) to provide any assistance to any person for the purchase of synthetic fuel.

(3) Except during periods of national emergency declared by

the Congress or the President, a guarantee may be entered into

under this section only if the President determines that—

(A) the guaranteed contract or activity is for industrial resources or a critical technology item which is essential to the

national defense;

(B) without the guarantee, United States industry cannot

reasonably be expected to provide the needed industrial resources or critical technology item in a timely manner;

(C) the guarantee is the most cost-effective, expedient, and

practical alternative for meeting the need involved; and
Sec. 301 DEFENSE PRODUCTION ACT OF 1950 728

1 Indentation so in law.

(D) 1 the combination of the United States national defense demand and foreseeable nondefense demand is not

less than the output of domestic industrial capability, as

determined by the President, including the output to be established through the guarantee.

(b) Any Federal agency or any Federal Reserve bank, when

designated by the President, is hereby authorized to act, on behalf

of any guaranteeing agency, as fiscal agent of the United States in

the making of such contracts of guarantee and in otherwise carrying out the purposes of this section. All such funds as may be

necessary to enable any such fiscal agent to carry out any guarantee made by it on behalf of any guaranteeing agency shall be

supplied and disbursed by or under authority from such guaranteeing agency. No such fiscal agent shall have any responsibility or

accountability except as agent in taking any action pursuant to or

under authority of the provisions of this section. Each such fiscal

agent shall be reimbursed by each guaranteeing agency for all expenses and losses incurred by such fiscal agent in acting as agent

on behalf of such guaranteeing agency, including among such expenses, notwithstanding any other provision of law, attorneys’ fees

and expenses of litigation.

(c) All actions and operations of such fiscal agents under authority of or pursuant to this section shall be subject to the supervision of the President, and to such regulations as he may prescribe; and the President is authorized to prescribe, either specifically or by maximum limits or otherwise, rates of interest, guarantee and commitment fees, and other charges which may be made

in connection with loans, discounts, advances, or commitments

guaranteed by the guaranteeing agencies through such fiscal

agents, and to prescribe regulations governing the forms and procedures (which shall be uniform to the extent practicable) to be utilized in connection with such guarantees.

(d) Each guaranteeing agency is hereby authorized to use for

the purposes of this section any funds which have heretofore been

appropriated or allocated or which hereafter may be appropriated

or allocated to it, or which are or may become available to it, for

such purposes or for the purpose of meeting the necessities of the

national defense.

(e)(1)(A) Except as provided in subparagraph (D), a guarantee

may be made under this section only if the industrial resource or

critical technology item shortfall which such guarantee is intended

to correct has been identified in the Budget of the United States,

or amendments thereto, submitted to the Congress, accompanied

by a statement from the President demonstrating that the budget

submission is in accordance with the provisions of subsection (a)(3)

of this section.

(B) Any such guarantee may be made only after 60 days have

elapsed after such industrial resource or critical technology item

shortfall has been identified pursuant to subparagraph (A).

(C) If the making of any guarantee or guarantees to correct an

industrial resource or critical technology item shortfall would cause

the aggregate outstanding amount of all guarantees for such indus-
729 Sec. 302 DEFENSE PRODUCTION ACT OF 1950

1 Indentation so in law.

trial resource or critical technology item shortfall to exceed

$50,000,000, any such guarantee or guarantees may be made only

if specifically authorized by law.

(D) 1 The requirements of subparagraphs (A), (B), and

(C) may be waived—

(i) 1 during periods of national emergency declared

by the Congress or the President; or

(ii) 1 upon a determination by the President, on a

nondelegable basis, that a specific guarantee is necessary to avert an industrial resource or critical technology item shortfall that would severely impair national defense capability.

(2) The authority conferred by this section shall not be used

primarily to prevent the financial insolvency or bankruptcy of any

person, unless

(A) the President certifies that the insolvency or bankruptcy would have a direct and substantially adverse effect

upon defense production; and

(B) a copy of such certification, together with a detailed

justification thereof, is transmitted to the Congress and to the

Committee on Banking, Housing, and Urban Affairs of the

Senate and the Committee on Financial Services of the House

of Representatives at least ten days prior to the exercise of

that authority for such use.

SEC. 302. ø50 U.S.C. App. 2092¿ (a) To expedite production

and deliveries or services to aid in carrying out Government contracts for the procurement of industrial resources or a critical technology item for the national defense, the President may make provisions for loans (including participations, or guarantees of, loans)

to private business enterprises (including research corporations not

organized for profit) for the expansion of capacity, the development

of technological processes, or the production of essential materials,

including the exploration, development, and mining of strategic and

critical metals and minerals, and manufacture of newsprint.

(b) Such loans may be made without regard to the limitations

of existing law and on such terms and conditions as the President

deems necessary, except that—

(1) financial assistance may be extended only to the extent

that it is not otherwise available on reasonable terms; and

(2) except during periods of national emergency declared

by the Congress or the President, no such loan may be made

unless the President determines that—

(A) the loan is for the expansion of capacity, the development of a technological process, or the production of materials essential to the national defense;

(B) without the loan, United States industry cannot

reasonably be expected to provide the needed capacity,

technological processes, or materials in a timely manner;

(C) the loan is the most cost-effective, expedient, and

practical alternative method for meeting the need; and

(D) the combination of the United States national defense demand and foreseeable nondefense demand is not
Sec. 303 DEFENSE PRODUCTION ACT OF 1950 730

1 Indentation so in law.

less than the output of domestic industrial capability, as

determined by the President, including the output to be established through the loan.

(c)(1) Except as provided in paragraph (4), no loans may be

made under this section, unless the industrial resource shortfall

which such loan is intended to correct has been identified in the

Budget of the United States, or amendments thereto, submitted to

the Congress, accompanied by a statement from the President demonstrating that the budget submission is in accordance with the

provisions of subsection (b)(2) of this section.

(2) Any such loan may be made only after 60 days have

elapsed after such industrial resource shortfall has been identified

pursuant to paragraph (1).

(3) If the making of any loan or loans to correct an industrial

resource shortfall would cause the aggregate outstanding amount

of all loans for such industrial resource shortfall to exceed

$50,000,000, any such loans or loans may be made only if specifically authorized by law.

(4) 1 The requirements of paragraphs (1), (2), and (3) may

be waived—

(A) 1 during periods of national emergency declared by

the Congress or the President; and

(B) 1 upon a determination by the President, on a nondelegable basis, that a specific guarantee is necessary to

avert an industrial resource or critical technology shortfall

that would severely impair national defense capability.

SEC. 303. ø50 U.S.C. App. 2093¿ (a) PRESIDENTIAL PROVI- SIONS.—(1) IN GENERAL.—To assist in carrying out the objectives of

this Act, the President may make provision—

(A) for purchases of or commitments to purchase an

industrial resource or a critical technology item, for Government use or resale; and

(B) for the encouragement of exploration, development,

and mining of critical and strategic materials, and other

materials.

(2) TREATMENT OF CERTAIN AGRICULTURAL COMMODITIES.— Purchases for resale under this subsection shall not include

that part of the supply of an agricultural commodity which is

domestically produced, except to the extent that such domestically produced supply may be purchased for resale for industrial use or stockpiling.

(3) TERMS OF SALES.—No commodity purchased under this

subsection shall be sold at less than—

(A) the established ceiling price for such commodity,

except that minerals, metals, and materials shall not be

sold at less than the established ceiling price, or the current domestic market price, whichever is lower; or

(B) if no ceiling price has been established, the higher

of—

(i) the current domestic market price for such

commodity; or
731 Sec. 303 DEFENSE PRODUCTION ACT OF 1950

(ii) the minimum sale price established for agricultural commodities owned or controlled by the Commodity Credit Corporation, as provided in section 407

of the Agricultural Act of 1949.

(4) DELIVERY DATES.—No purchase or commitment to purchase any imported agricultural commodity shall specify a delivery date which is more than 1 year after the expiration of

this section.

(5) PRESIDENTIAL DETERMINATIONS.—Except as provided in

paragraph (7), the President may not execute a contract under

this subsection unless the President determines that—

(A) the industrial resource or critical technology item

is essential to the national defense;

(B) without Presidential action under the authority

provided for in this section, United States industry cannot

reasonably be expected to provide the capability for the

needed industrial resource or critical technology item in a

timely manner;

(C) purchases, purchase commitments, or other action

pursuant to this section are the most cost-effective, expedient, and practical alternative method for meeting the

need; and

(D) the combination of the United States national defense demand and foreseeable nondefense demand for the

industrial resource or critical technology item is not less

than the output of domestic industrial capability, as determined by the President, including the output to be established through the purchase, purchase commitment, or

other action.

(6) IDENTIFICATION OF SHORTFALL.—

(A) IN GENERAL.—Except as provided in paragraph (7),

the President shall take no action under this section unless the industrial resource shortfall which such action is

intended to correct has been identified in the Budget of the

United States, or amendments thereto, submitted to the

Congress and accompanied by a statement from the President demonstrating that the budget submission is in accordance with the provisions of paragraph (5).

(B) TIMING OF ACTION.—Any such action may be taken

only after 60 days have elapsed after such industrial resource shortfall has been identified pursuant to subparagraph (A).

(C) LIMITATION.—If the taking of any action or actions

under this section to correct an industrial resource shortfall would cause the aggregate outstanding amount of all

such actions for such industrial resource shortfall to exceed $50,000,000, any such action or actions may be taken

only if specifically authorized by law.

(7) WAIVER.—The requirements of paragraphs (1) through

(6) may be waived—

(A) during periods of national emergency declared by

the Congress or the President; or

(B) upon a determination by the President, on a nondelegable basis, that a specific guarantee is necessary to
Sec. 303 DEFENSE PRODUCTION ACT OF 1950 732

1Public Law 96–294, the Energy Security Act of June 30, 1980, extended the period for purchases and commitments to purchase and sales under the provisions of section 303 from September 30, 1985, to September 30, 1995.

avert an industrial resource or critical technology item

shortfall that would severely impair national defense capability.

(b) Subject to the limitations in subsection (a), purchases and

commitments to purchase and sales under such subsection may be

made without regard to the limitations of existing law, for such

quantities, and on such terms and conditions, including advance

payments, and for such periods, but not extending beyond a date

that is not more than 10 years from the date such purchase, purchase commitment, or sale was initially made, as the President

deems necessary, except that purchases or commitments to purchase involving higher than established ceiling prices (or if there

be no established ceiling prices, currently prevailing market prices)

or anticipated loss on resale shall not be made unless it is determined that supply of the materials could not be effectively increased at lower prices or on terms more favorable to the Government, or that such purchases are necessary to assure the availability to the United States of overseas supplies.1

(c) If the President finds—

(1) that under generally fair and equitable ceiling prices,

for any raw or nonprocessed material, there will result a decrease in supplies from high-cost sources of such material, and

that the continuation of such supplies is necessary to carry out

the objectives of the act; or

(2) that an increase in cost of transportation is temporary

in character and threatens to impair maximum production or

supply in any area at stable prices of any materials,

he may make provision for subsidy payments on any such domestically produced material other than an agricultural commodity in

such amounts and in such manner (including purchases of such

material and its resale at a loss without regard to the limitations

of existing law), and on such terms and conditions, as he determines to be necessary to insure that supplies from such high-cost

sources are continued, or that maximum production or supply in

such area at stable prices of such materials is maintained as the

case may be.

(d) The procurement power granted to the President by this

section shall include the power to transport and store and have

processed and refined any materials procured under this section.

(e) When in his judgment it will aid the national defense the

President is authorized to install additional equipment, facilities,

processes, or improvements to plants, factories, and other industrial facilities owned by the United States Government, and to install Government owned equipment in plants, factories, and other

industrial facilities owned by private persons.

(f) Notwithstanding any other provision of law to the contrary,

metals, minerals, and materials acquired pursuant to the provisions of this section which, in the judgment of the President, are

excess to the needs of programs under this act, shall be transferred

to the National Defense Stockpile established by the Strategic and

Critical Materials Stock Piling Act (50 U.S.C. 98 et seq.) when the
733 Sec. 305 DEFENSE PRODUCTION ACT OF 1950

President deems such action to be in the public interest. Transfers

made pursuant to this subsection shall be made without charge

against or reimbursement from funds appropriated for the purposes

of such Act, except that costs incident to such transfer other than

acquisition costs shall be paid or reimbursed from such funds, and

the acquisition costs of such metals, minerals, and materials transferred shall be deemed to be net losses incurred by the transferring

agency and the notes payable issued to the Secretary of the Treasury representing the amounts thereof shall be canceled. Upon the

cancellation of any such notes the aggregate amount of borrowing

which may be outstanding at any one time under section 304(b) of

this act, as amended, shall be reduced in an amount equal to the

amount of any notes so canceled.

(g) When in his judgement it will aid the national defense, the

President may make provision for the development of substitutes

for strategic and critical materials, critical components, critical

technology items, and other industrial resources.

SEC. 304. ø50 U.S.C. App. 2094¿ DEFENSE PRODUCTION ACT FUND.

(a) ESTABLISHMENT OF FUND.—There is established in the

Treasury of the United States a separate fund to be known as the

Defense Production Act Fund (hereafter in this section referred to

as ‘‘the Fund’’).

(b) MONEYS IN FUND.—There shall be credited to the Fund—

(1) all moneys appropriated for the Fund, as authorized by

section 711(b); and

(2) all moneys received by the Fund on transactions entered into pursuant to section 303.

(c) USE OF FUND.—The Fund shall be available to carry out the

provisions and purposes of this title, subject to the limitations set

forth in this Act and in appropriations Acts.

(d) DURATION OF FUND.—Moneys in the Fund shall remain

available until expended.

(e) FUND BALANCE.—The Fund balance at the close of each fiscal year shall not exceed $400,000,000, excluding any moneys appropriated to the Fund during that fiscal year or obligated funds.

If, at the close of any fiscal year, the Fund balance exceeds

$400,000,000, the amount in excess of $400,000,000 shall be paid

into the general fund of the Treasury.

(f) FUND MANAGER.—The President shall designate a Fund

manager. The duties of the Fund manager shall include—

(1) determining the liability of the Fund in accordance

with subsection (g);

(2) ensuring the visibility and accountability of transactions engaged in through the Fund; and

(3) reporting to the Congress each year regarding activities

of the Fund during the previous fiscal year.

(g) LIABILITIES AGAINST FUND.—When any agreement entered

into pursuant to this title after December 31, 1991, imposes any

contingent liability upon the United States, such liability shall be

considered an obligation against the Fund.

SEC. 305. ø50 U.S.C. App. 2095¿ (a)(1)(A) Subject to subsection

(k)(1), in order to encourage and expedite the development of synthetic fuel for use for national defense purposes, the President, uti-
Sec. 305 DEFENSE PRODUCTION ACT OF 1950 734

lizing the provisions of this Act (other than sections 101(a), 101(b),

301, 302, 303, and 306), and any other applicable provision of law,

shall take immediate action to achieve production of synthetic fuel

to meet national defense needs.

(B) The President shall exercise the authority granted by this

section—

(i) in consultation with the Secretary of Energy;

(ii) through the Department of Defense and any other Federal department or agency designated by the President; and

(iii) consistent with an orderly transition to the separate

authorities established pursuant to the United States Synthetic Fuels Corporation Act of 1980.

(2) This section shall not affect the authority of the United

States Synthetic Fuels Corporation.

(b)(1)(A) To assist in carrying out the objectives of this section,

the President, subject to subsections (c) and (d), shall—

(i) contract for purchases of, or commitments to purchase,

synthetic fuel for Government use for defense needs;

(ii) subject to paragraph (3), issue guarantees in accordance with the provisions of section 301, except that the provisions of section 301(e)(1)(B) shall not apply with respect to

such guarantees; and

(iii) subject to paragraph (3), make loans in accordance

with the provisions of section 302, except that the provisions

of section 302(2) shall not apply with respect to such loans.

(2)(A) Except as provided in subparagraph (B) assistance authorized under this subsection may be provided only to persons

who are participating in a synthetic fuel project.

(B) For purposes of fabrication or manufacture of any component of a synthetic fuel project, assistance authorized under paragraph (1)(A)(ii) and paragraph (1)(A)(iii) may be provided to any

fabricator or manufacturer of such component.

(3) The President may not utilize the authority under paragraph (1) to provide any loan or guarantee in accordance with the

provisions of section 301 or section 302 in amounts which exceed

the limitations established in such sections unless the President

submits to the Congress notification of the proposed loan or guarantee in the manner specified under section 307 and such proposed

action is either approved or not disapproved by the Congress under

such section. For purposes of section 307, any proposal pertaining

to a proposed loan or guarantee, notice of which is transmitted to

the Congress under this paragraph, shall be considered to be a synthetic fuel action.

(c)(1) Subject to paragraph (2), purchases and commitments to

purchase under subsection (b) may be made—

(A) without regard to the limitations of existing law (other

than the limitations contained in this Act) regarding the procurement of goods or services by the Government; and

(B) subject to section 717(a), for such quantities, on such

terms and conditions (including advance payments subject to

paragraph (3)), and for such periods as the President deems

necessary.

(2) Purchases or commitments to purchase under subsection (b)

involving higher than established ceiling prices (or if there are no
735 Sec. 305 DEFENSE PRODUCTION ACT OF 1950

established ceiling prices, currently prevailing market prices as determined by the Secretary of Energy) shall not be made unless it

is determined that supplies of synthetic fuel could not be effectively

increased at lower prices or on terms more favorable to the Government, or that such commitments or purchases are necessary to assure the availability to the United States of supplies overseas for

use for national defense purposes.

(3) Advance payments may not be made under this section unless construction has begun on the synthetic fuel project involved

or the President determines that all conditions precedent to construction have been met.

(d)(1) Except as provided in paragraph (2), any purchase of or

commitment to purchase synthetic fuel under subsection (b) shall

be made by solicitation of sealed competitive bids.

(2) In any case in which no such bids are submitted to the

President or the President determines that no such bids which

have been submitted to the President are acceptable, the President

may negotiate contracts for such purchases and commitments to

purchase.

(3) Any contract for such purchases or commitments to purchase shall provide that the President has the right to refuse delivery of the synthetic fuel involved and to pay the person involved

an amount equal to the amount by which the price for such synthetic fuel, as specified in the contract involved, exceeds the market

price, as determined by the Secretary of Energy, for such synthetic

fuel on the delivery date specified in such contract.

(4)(A)(i) With respect to any person, including any other person

who is substantially controlled by such person (as determined by

the Secretary of Energy), the President, subject to subparagraph

(A)(ii), may not award contracts for the purchase of or commitment

to purchase more than 100,000 barrels per day crude oil equivalent

of synthetic fuel.

(ii) With respect to any person, including any other person who

is substantially controlled by such person (as determined by the

Secretary of Energy), the President may not award any contract for

the purchase or commitment to purchase of more than 75,000 barrels per day crude oil equivalent of synthetic fuel unless the President submits to the Congress notification of such proposed contract

or commitment in the manner specified under section 307 and such

proposed action is either approved or not disapproved by the Congress under such section. For purposes of section 307, any proposal

pertaining to such a proposed contract or commitment, notice of

which is transmitted to the Congress under this subparagraph,

shall be considered to be a synthetic fuel action.

(B) A contract for the purchase of or commitment to purchase

synthetic fuel may be entered into only for synthetic fuel which is

produced in a synthetic fuel project which is located in the United

States.

(C) Each contract entered into under this section for the purchase of or commitment to purchase synthetic fuel shall provide

that all parties to such contract agree to review and to possibly renegotiate such contract within 10 years after the date of the initial

production at the synthetic fuel project involved. At the time of
Sec. 305 DEFENSE PRODUCTION ACT OF 1950 736

such review, the President shall determine the need for continued

financial assistance pursuant to such contract.

(5) In any case in which the President, under the provisions of

this section, accepts delivery of any synthetic fuel, such synthetic

fuel may be used by an appropriate Federal agency. Such Federal

agency shall pay for such synthetic fuel the prevailing market price

for the product which such synthetic fuel is replacing, as determined by the Secretary of Energy, from sums appropriated to such

Federal agency for the purchase of fuel, and the President shall

pay, from sums appropriated for such purpose pursuant to the authorizations contained in sections 711(a)(2) and 711(a)(3), an

amount equal to the amount by which the contract price for such

synthetic fuel as specified in the contract involved exceeds such

prevailing market price.

(6) In considering any proposed contract under this section, the

President shall take into account the socioeconomic impacts on

communities which would be affected by any new or expanded facilities required for the production of the synthetic fuel under such

contract.

(e) The procurement power granted to the President under this

section shall include the power to transport and store and have

processed and refined any product procured under this section.

(f)(1) No authority contained in this section may be exercised

to acquire any amount of synthetic fuel unless the President determines that such synthetic fuel is needed to meet national defense

needs and that it is not anticipated that such synthetic fuel will be

resold by the Government.

(2) In any case in which synthetic fuel is acquired by the Government under this section, such synthetic fuel is no longer needed

to meet national defense needs, and such synthetic fuel is not accepted by a Federal agency pursuant to subsection (d)(5), the President shall offer such synthetic fuel to the Secretary of Energy for

purposes of meeting the storage requirements of the Strategic Petroleum Reserve.

(3) Any synthetic fuel which is acquired by the Government

under this section and which is not used by the Government or accepted by the Secretary of Energy pursuant to paragraph (2) shall

be sold in accordance with applicable Federal law.

(g)(1) Any contract under this section including any amendment or other modification of such contract, shall, subject to the

availability of unencumbered appropriations in advance, specify in

dollars the maximum liability of the Federal Government under

such contract as determined in accordance with paragraph (2).

(2) For the purpose of determining the maximum liability

under any contract under paragraph (1)—

(A) loans shall be valued at the initial face value of the

loan;

(B) guarantees shall be valued at the initial face value of

such guarantee (including any amount of interest which is

guaranteed under such guarantee);

(C) purchase agreements shall be valued as of the date of

each such contract based upon the President’s estimate of the

maximum liability under such contract; and
737 Sec. 305 DEFENSE PRODUCTION ACT OF 1950

(D) any increase in the liability of the Government pursuant to any amendment or other modification to a contract for

a loan, guarantee, or purchase agreement shall be valued in

accordance with the applicable preceding subparagraph.

(3) If more than one form of assistance is provided under this

section to any synthetic fuel project, then the maximum liability

under such contract for purposes of paragraphs (1) and (2) shall be

valued at the maximum potential exposure on such project at any

time during the life of such project.

(4) Any such contract shall be accompanied by a certification

by the Director of the Office of Management and Budget that the

necessary appropriations have been made for the purpose of such

contract and are available. The remaining available and

unencumbered appropriations shall equal the total aggregate appropriations less the aggregate maximum liability of the Federal

Government under all contracts pursuant to this section.

(5) Any commitment made under this section which is nullified

or voided for any reason shall not be considered in the aggregate

maximum liability for the purposes of paragraph (4).

(h) For purposes of section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)), no action in providing any loan, guarantee, or purchase agreement under this section shall be deemed to be a major Federal action significantly affecting the quality of the human environment.

(i) All laborers and mechanics employed for the construction,

repair, or alteration of any synthetic fuel project funded, in whole

or in part, by a guarantee or loan entered into pursuant to this section shall be paid wages at rates not less than those prevailing on

projects of a similar character in the locality as determined by the

Secretary of Labor in accordance with subchapter IV of chapter 31

of title 40, United States Code. Guaranteeing agencies shall not extend guarantees and the President shall not make loans for the

construction, repair or alteration of any synthetic fuel project unless a certification is provided to the agency or the President, as

the case may be, prior to the commencement of construction or at

the time of filing an application for a loan or guarantee, if construction has already commenced, that these labor standards will be

maintained at the synthetic fuel project. With respect to the labor

standards specified in this subsection, the Secretary of Labor shall

have the authority and functions set forth in Reorganization Plan

Numbered 14 of 1950.

(j)(1) Nothing in this section shall—

(A) affect the jurisdiction of the States and the United

States over waters of any stream or over any ground water resource;

(B) alter, amend, repeal, interpret, modify, or be in conflict

with any interstate compact made by any States; or

(C) confer upon any non-Federal entity the ability to exercise any Federal right to the waters of any stream or to any

ground water resource.

(2) No synthetic fuel project constructed pursuant to the authorities of this section shall be considered to be a Federal project

for purposes of the application for or assignment of water rights.
Sec. 306 DEFENSE PRODUCTION ACT OF 1950 738

1Section 106 of Public Law 96–294, the Energy Security Act of June 30, 1980, requires an

annual report by the President to the Congress on actions taken under sections 305 and 306.

(k)(1) Subject to paragraph (2), the authority of the President

to enter into any new contract or commitment under this section

shall cease to be effective on the date on which the President determines that the United States Synthetic Fuels Corporation is established and fully operational consistent with the provisions of the

United States Synthetic Fuels Corporation Act of 1980.

(2) Contracts entered into under this section before the date

specified in paragraph (1) may be renewed and extended by the

President after the date specified in paragraph (1) but only to the

extent that Congress has specifically appropriated funds for such

renewals and extensions. 1

SEC. 306. ø50 U.S.C. App. 2096¿ (a)(1) At any time after the

date of the enactment of this section, the President may, subject to

paragraph (2), invoke the authorities provided under this section

upon making all the following determinations and transmitting a

report to the Congress regarding such determinations:

(A) a national energy supply shortage has resulted or is

likely to result in a shortfall of petroleum supplies in the

United States, and such shortage is expected to persist for a

period of time sufficient to seriously threaten the adequacy of

defense fuel supplies essential to direct defense and direct defense industrial base programs;

(B) the continued adequacy of such supplies cannot be assured and requires expedited production of synthetic fuel to

provide such defense fuel supplies;

(C) the expedited production of synthetic fuel to provide

such defense fuel supplies will not be accomplished in a timely

manner by the United States Synthetic Fuels Corporation; and

(D) the exercise of the authorities provided under subsection (c) is necessary to provide for the expedited production

of synthetic fuel to provide such defense fuel supplies.

(2)(A) Any transmittal under paragraph (1) shall contain a determination by the President regarding the extent of the anticipated shortage of petroleum supplies. If the President determines

that such shortage is greater than 25 percent, the authorities invoked by the President under this section shall be effective on the

date on which the report required under paragraph (1) is transmitted to the Congress.

(B) If the President determines that such shortage is less than

25 percent, the transmittal under paragraph (1) shall be made in

accordance with section 307 and the authorities under this section

shall be effective only as provided under such section. For purposes

of section 307, any determination to invoke authorities under this

section, notice of which is transmitted to the Congress under this

subsection, shall be considered to be a synthetic fuel action.

(3) No court shall have the authority to review any determination made by the President under this subsection.

(b)(1)(A) Subject to the requirements of subsection (a), in order

to encourage and expedite the development of synthetic fuel for use

for national defense purposes, the President, utilizing the provisions of this Act (other than sections 101(a), 101(b), 301, 302, 303,
739 Sec. 306 DEFENSE PRODUCTION ACT OF 1950

and 305), and any other applicable provision of law, shall take immediate action to achieve production of synthetic fuel to meet national defense needs.

(B) The President shall exercise the authority granted by this

section—

(i) in consultation with the Secretary of Energy; and

(ii) through the Department of Defense and any other Federal department or agency designated by the President.

(2) This section shall not affect the authority of the United

States Synthetic Fuels Corporation.

(c)(1)(A) To assist in carrying out the objectives of this section,

the President, subject to subsections (d) and (e), shall—

(i) contract for purchases of or commitments to purchase

synthetic fuel for Government use for defense needs;

(ii) subject to paragraph (4), issue guarantees in accordance with the provisions of section 301, except that the provisions of section 301(e)(1)(B) shall not apply with respect to

such guarantees;

(iii) subject to paragraph (4), make loans in accordance

with the provisions of section 302, except that the provisions

of section 302(2) shall not apply with respect to such loans;

(iv) have the authority to require fuel suppliers to provide

synthetic fuel in any case in which the President deems it

practicable and necessary to meet the national defense needs

of the United States. Nothing in this paragraph shall be intended to provide authority for the President to require fuel

suppliers to produce synthetic fuel if such suppliers are not already producing synthetic fuel or do not intend to produce synthetic fuel;

(v) have the authority to install additional equipment, facilities, processes, or improvements to plants, factories, and

other industrial facilities owned by the Government, and to install Government-owned equipment in plants, factories, and

other industrial facilities owned by private persons; and

(vi) have the authority to undertake Government synthetic

fuel projects in accordance with the provisions of paragraph

(2).

(B)(i) Except as provided in clause (ii), assistance authorized

under this subsection may be provided only to persons who are participating in a synthetic fuel project.

(ii) For purposes of fabrication or manufacture of any component of a synthetic fuel project, assistance authorized under paragraph (1)(A)(ii) and paragraph (1)(A)(iii) may be provided to any

fabricator or manufacturer of such component.

(2)(A) The Government, acting through the President, is authorized to own Government synthetic fuel projects. In any case in

which the Government owns a Government synthetic fuel project,

the Government shall contract for the construction and operation

of such project.

(B) The authority of the Government pursuant to subparagraph (A) to own and contract for the construction and operation

of any Government synthetic fuel project shall include, among

other things, the authority to—
Sec. 306 DEFENSE PRODUCTION ACT OF 1950 740

(i) subject to subparagraph (C), take delivery of synthetic

fuel from such project; and

(ii) transport and store and have processed and refined

such synthetic fuel.

(C) Any synthetic fuel which the Government takes delivery of

from a Government synthetic fuel project shall be disposed of in accordance with subsection (g).

(D) To the maximum extent feasible, the President shall utilize

the private sector for the activities associated with this paragraph.

(3)(A) Except as provided in subparagraph (B), any contract for

the construction or operation of a Government synthetic fuel

project shall be made by solicitation of sealed competitive bids.

(B) In any case in which no such bids are submitted to the

President or the President determines that no such bids have been

submitted which are acceptable to the President, the President

may negotiate contracts for such construction and operation.

(4) The President may not utilize the authority under paragraph (1) to provide any loan or guarantee in accordance with the

provisions of section 301 or section 302 in amounts which exceed

the limitations established in such sections unless the President

submits to the Congress notification of the proposed loan or guarantee in the manner specified under section 307 and such proposed

action is either approved or not disapproved by the Congress under

such section. For purposes of section 307, any proposal pertaining

to a proposed loan or guarantee, notice of which is transmitted to

the Congress under this paragraph, shall be considered to be a synthetic fuel action.

(5) Before the President may utilize any specific authority described under paragraph (1), the President shall transmit to the

Congress a statement containing a certification that the determinations made by the President in the transmittal to the Congress

under subsection (a)(1) are still valid at the time of the transmittal

of such certification.

(6)(A) No authority contained in paragraphs (1)(A)(i) through

(1)(A)(iv) may be utilized by the President unless the use of such

authority has been authorized by the Congress in an Act hereinafter enacted by the Congress.

(B) The President may not utilize any authority under paragraph (1)(A)(v) or paragraph (1)(A)(vi) unless the proposed exercise

of authority has been specifically authorized on a project-by-project

basis in an Act hereinafter enacted by the Congress and funds have

been specifically appropriated by the Congress for purposes of exercising such authority.

(d)(1) Subject to paragraph (2), purchases and commitments to

purchase under subsection (c) may be made—

(A) without regard to the limitations of existing law (other

than those limitations contained in this Act) regarding the procurement of goods or services by the Government; and

(B) subject to section 717(a), for such quantities, on such

terms and conditions (including advance payments subject to

paragraph (3)), and for such periods as the President deems

necessary.

(2) Purchases or commitments to purchase under subsection (c)

involving higher than established ceiling prices (or if there are no
741 Sec. 306 DEFENSE PRODUCTION ACT OF 1950

established ceiling prices, currently prevailing market prices as determined by the Secretary of Energy) shall not be made unless it

is determined that supplies of synthetic fuel could not be effectively

increased at lower prices or on terms more favorable to the Government, or that such commitments or purchases are necessary to assure the availability to the United States of supplies overseas for

use for national defense purposes.

(3) Advance payments may not be made under this section unless construction has begun on the synthetic fuel project involved

or the President determines that all conditions precedent to construction have been met.

(e)(1) Except as provided in paragraph (2), any purchase or

commitment to purchase synthetic fuel under subsection (c) shall

be made by solicitation of sealed competitive bids.

(2) In any case in which no such bids are submitted to the

President or the President determines that no such bids which

have been submitted to the President are acceptable, the President

may negotiate contracts for such purchases and commitments to

purchase.

(3) Any contract for such purchases or commitments to purchase shall provide that the President has the right to refuse delivery of the synthetic fuel involved and to pay the person involved

an amount equal to the amount by which the price for such synthetic fuel, as specified in the contract involved, exceeds the market

price, as determined by the Secretary of Energy, for such synthetic

fuel on the delivery date specified in such contract.

(4)(A) With respect to any person, including any other person

who is substantially controlled by such person (as determined by

the Secretary of Energy), the President, subject to subparagraph

(B), may not award contracts for the purchase of or commitment

to purchase more than 100,000 barrels per day crude oil equivalent

of synthetic fuel.

(B) With respect to any person, including any other person who

is substantially controlled by such person (as determined by the

Secretary of Energy), the President may not award any contract for

the purchase of or commitment to purchase more than 75,000 barrels per day crude oil equivalent of synthetic fuel unless the President submits to the Congress notification of such proposed contract

or commitment in the manner specified under section 307 and such

proposed action is either approved or not disapproved by the Congress under such section. For purposes of section 307, any proposal

pertaining to such a proposed contract or commitment, notice of

which is transmitted to the Congress under this subparagraph,

shall be considered to be a synthetic fuel action.

(5) A contract for the purchase of or commitment to purchase

synthetic fuel may be entered into only for synthetic fuel which is

produced in a synthetic fuel project which is located in the United

States.

(6) Each contract entered into under this section for the purchase of or commitment to purchase synthetic fuel shall provide

that all parties to such contract agree to review and to possibly renegotiate such contract within 10 years after the date of the initial

production at the synthetic fuel project involved. At the time of
Sec. 306 DEFENSE PRODUCTION ACT OF 1950 742

such review, the President shall determine the need for continued

financial assistance pursuant to such contract.

(7) In any case in which the President, under the provisions of

this section, accepts delivery of any synthetic fuel, such synthetic

fuel may be used by an appropriate Federal agency. Such Federal

agency shall pay for such synthetic fuel the prevailing market price

for the product which such synthetic fuel is replacing, as determined by the Secretary of Energy, from sums appropriated to such

Federal agency for the purchase of fuel, and the President shall

pay, from sums appropriated for such purpose, an amount equal to

the amount by which the contract price for such synthetic fuel as

specified in the contract involved exceeds such prevailing market

price.

(8) In considering any proposed contract under this section, the

President shall take into account the socioeconomic impacts on

communities which would be affected by any new or expanded facilities required for the production of the synthetic fuel under such

contract.

(f) The procurement power granted to the President under this

section shall include the power to transport and store and have

processed and refined any product procured under this section.

(g)(1) No authority contained in this section may be exercised

to acquire any amount of synthetic fuel unless the President determines that such synthetic fuel is needed to meet national defense

needs and that it is not anticipated that such synthetic fuel will be

resold by the Government.

(2) In any case in which synthetic fuel is acquired by the Government under this section, such synthetic fuel is no longer needed

to meet national defense needs, and such synthetic fuel is not accepted by a Federal agency pursuant to subsection (e)(7), the President shall offer such synthetic fuel to the Secretary of Energy for

purposes of meeting the storage requirements of the Strategic Petroleum Reserve.

(3) Any synthetic fuel which is acquired by the Government

under this section and which is not used by the Government or accepted by the Secretary of Energy pursuant to paragraph (2), shall

be sold in accordance with applicable Federal law.

(h)(1) Any contract under this section, including any amendment or other modification of such contract, shall, subject to the

availability of unencumbered appropriations in advance, specify in

dollars the maximum liability of the Federal Government under

such contract as determined in accordance with paragraph (2).

(2) For the purpose of determining the maximum liability

under any contract under paragraph (1)—

(A) loans shall be valued at the initial face value of the

loan;

(B) guarantees shall be valued at the initial face value of

such guarantee (including any amount of interest which is

guaranteed under such guarantee);

(C) purchase agreements shall be valued as of the date of

each such contract based upon the President’s estimate of the

maximum liability under such contract;

(D) contracts for activities under subsection (c)(1)(A)(v)

shall be valued at the initial face value of such contract;
743 Sec. 306 DEFENSE PRODUCTION ACT OF 1950

(E) Government synthetic fuel projects pursuant to subsection (c)(1)(A)(vi) shall be valued at the current estimated

cost to the Government, as determined annually by the President; and

(F) any increase in the liability of the Government pursuant to any amendment or other modification to a contract for

a loan, guarantee, purchase agreement, contract for activities

under subsection (c)(1)(A)(v), or Government synthetic fuel

project pursuant to subsection (c)(1)(A)(vi) shall be valued in

accordance with the applicable preceding subparagraph.

(3) If more than one form of assistance is provided under this

section to any synthetic fuel project then the maximum liability

under such contract for purposes of paragraphs (1) and (2) shall be

valued at the maximum potential exposure on such project at any

time during the life of such project.

(4) Any such contract shall be accompanied by a certification

by the Director of the Office of Management and Budget that the

necessary appropriations have been made for the purpose of such

contract and are available. The remaining available and

unencumbered appropriations shall equal the total aggregate appropriations less the aggregate maximum liability of the Federal

Government under all contracts pursuant to this section.

(5) Any commitment made under this section which is nullified

or voided for any reason shall not be considered in the aggregate

maximum liability for the purposes of paragraph (4).

(i) For purposes of section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)), no action in providing any loan, guarantee, or purchase agreement under this section, shall be deemed to be a major Federal action significantly affecting the quality of the human environment.

(j) All laborers and mechanics employed for the construction,

repair, or alteration of any synthetic fuel project funded, in whole

or in part, by a guarantee or loan entered into pursuant to this section shall be paid wages at rates not less than those prevailing on

projects of a similar character in the locality as determined by the

Secretary of Labor in accordance with subchapter IV of chapter 31

of title 40, United States Code. Guaranteeing agencies shall not extend guarantees and the President shall not make loans for the

construction, repair or alteration of any synthetic fuel project unless a certification is provided to the agency or the President, as

the case may be, prior to the commencement of construction or at

the time of filing an application for a loan or guarantee, if construction has already commenced, that these labor standards will be

maintained at the synthetic fuel project. With respect to the labor

standards specified in this subsection, the Secretary of Labor shall

have the authority and functions set forth in Reorganization Plan

Numbered 14 of 1950.

(k)(1) Nothing in this section shall—

(A) affect the jurisdiction of the States and the United

States over waters of any stream or over any ground water resource;

(B) alter, amend, repeal, interpret, modify, or be in conflict

with any interstate compact made by any States; or
Sec. 307 DEFENSE PRODUCTION ACT OF 1950 744

(C) confer upon any non-Federal entity the ability to exercise any Federal right to the waters of any stream or to any

ground water resource.

(2) No synthetic fuel project constructed pursuant to the authorities of this section shall be considered to be a Federal project

for purposes of the application for or assignment of water rights.

(l) Renewals and extensions of contracts entered into under

this section shall be made only to the extent that Congress has specifically appropriated funds for such renewals and extensions, unless the President certifies that the determinations under section

306(a)(1) remain in effect for purposes of the use of such authority.

SEC. 307. ø50 U.S.C. App. 2097¿ (a) For purposes of this section, the term ‘‘synthetic fuel action’’ means any matter required to

be transmitted, or submitted to the Congress in accordance with

the procedures of this section.

(b) The President shall transmit any synthetic fuel action

(bearing an identification number) to both Houses of the Congress

on the same day.

SEC. 308. ø50 U.S.C. App. 2098¿ (a) For purposes of this Act,

the term ‘‘Government synthetic fuel project’’ means a synthetic

fuel project undertaken in accordance with the provisions of section

306(c).

(b)(1)(A) For purposes of this Act, the term ‘‘synthetic fuel’’

means any solid, liquid, or gas, or combination thereof, which can

be used as a substitute for petroleum or natural gas (or any derivatives thereof, including chemical feedstocks) and which is produced

by chemical or physical transformation (other than washing, coking, or desulfurizing) of domestic sources of—

(i) coal, including lignite and peat;

(ii) shale;

(iii) tar sands, including those heavy oil resources where—

(I) the cost and the technical and economic risks make

extraction and processing of a heavy oil resource uneconomical under applicable pricing and tax policies; and

(II) the costs and risks are comparable to those associated with shale, coal, and tar sand resources (other than

heavy oil) qualifying for assistance under section 305 or

section 306; and

(iv) water, as a source of hydrogen only through electrolysis.

(B) Such term includes mixtures of coal and combustible liquids, including petroleum.

(C) Such term does not include solids, liquids, or gases, or combinations thereof, derived from biomass, which includes timber,

animal and timber waste, municipal and industrial waste, sewage,

sludge, oceanic and terrestrial plants, and other organic matter.

(2)(A) For purposes of this Act, the term ‘‘synthetic fuel project’’

means any facility using an integrated process or processes at a

specific geographic location in the United States for the purpose of

commercial production of synthetic fuel. The project may include

only—

(i) the facility, including the equipment, plant, machinery,

supplies, and other materials associated with the facility,

which converts the domestic resource to synthetic fuel;
745 Sec. 308 DEFENSE PRODUCTION ACT OF 1950

(ii) the land and mineral rights required directly for use in

connection with the facilities for the production of synthetic

fuels;

(iii) any facility or equipment to be used in the extraction

of a mineral for use directly and exclusively in such conversion;

(I) which—

(aa) is co-located with the conversion facility or is

located in the immediate vicinity of the conversion facility; or

(bb) if not co-located or located in the immediate

vicinity, is incidental to the project (except in the

event of a coal mine where no other reasonable source

of coal is available to the project); and

(II) which is necessary to the project; and

(iv) any transportation facility, electric powerplant, electric

transmission line or other facility—

(I) which is for the exclusive use of the project;

(II) which is incidental to the project; and

(III) which is necessary to the project, except that

transportation facilities used to transport synthetic fuel

away from the project shall be used exclusively to transport synthetic fuel to a storage facility or pipeline connecting to an existing pipeline or processing facility or area

within close proximity of the project.

(B)(i) Such term may also include a project which will result

in the replacement of a significant amount of oil and is—

(I) used solely for the production of a mixture of coal and

combustible liquids, including petroleum, for direct use as a

fuel, but shall not include—

(aa) any mineral right; or

(bb) any facility or equipment for extraction of any

mineral;

(II) used solely for the commercial production of hydrogen

from water through electrolysis; and

(III) a magnetohydrodynamic topping cycle used solely for

the commercial production of electricity.

(ii) Such a synthetic fuel project using magnetohydrodynamic

technology shall only be eligible for guarantees under section 305

or section 306.

(C) For purposes of this paragraph—

(i) the term ‘‘exclusive’’ means for the sole use of the

project, except that an incidental by-product might be used for

other purposes;

(ii) the term ‘‘incidental’’ means a relatively small portion

of the total project cost; and

(iii) the term ‘‘necessary’’ means an integrated part of the

project taking into account considerations of economy and efficiency of operation.

(c) For purposes of section 305 and section 306, the term

‘‘United States’’ means the several States, the District of Columbia,

the Commonwealth of Puerto Rico, Guam, the Virgin Islands, the

Northern Mariana Islands, the Trust Territory of the Pacific Islands, and any other territory or possession of the United States.
Sec. 309 DEFENSE PRODUCTION ACT OF 1950 746

SEC. 309.ø50 U.S.C. App. 2099¿ (a) ANNUAL REPORT ON IMPACT OF OFFSETS.—

(1) REPORT REQUIRED.—Not later than 18 months after the

date of the enactment of the Defense Production Act Amendments of 1984, and annually thereafter, the President shall

submit to the Committee on Financial Services of the House of

Representatives and the Committee on Banking, Housing, and

Urban Affairs of the Senate, a detailed report on the impact of

offsets on the defense preparedness, industrial competitiveness,

employment, and trade of the United States.

(2) DUTIES OF THE SECRETARY OF COMMERCE.—The Secretary of Commerce (hereafter in this subsection referred to as

‘‘the Secretary’’) shall—

(A) prepare the report required by paragraph (1);

(B) consult with the Secretary of Defense, the Secretary of the Treasury, the Secretary of State, and the

United States Trade Representative in connection with the

preparation of such report; and

(C) function as the President’s Executive Agent for

carrying out this section.

(b) INTERAGENCY STUDIES AND RELATED DATA.—

(1) PURPOSE OF REPORT.—Each report required under subsection (a) shall identify the cumulative effects of offset agreements on—

(A) the full range of domestic defense productive capability (with special attention paid to the firms serving as

lower-tier subcontractors or suppliers); and

(B) the domestic defense technology base as a consequence of the technology transfers associated with such

offset agreements.

(2) USE OF DATA.—Data developed or compiled by any

agency while conducting any interagency study or other independent study or analysis shall be made available to the Secretary to facilitate the execution of the Secretary’s responsibilities with respect to trade offset and countertrade policy development.

(c) NOTICE OF OFFSET AGREEMENTS.—

(1) IN GENERAL.—If a United States firm enters into a contract for the sale of a weapon system or defense-related item

to a foreign country or foreign firm and such contract is subject

to an offset agreement exceeding $5,000,000 in value, such

firm shall furnish to the official designated in the regulations

promulgated pursuant to paragraph (2) information concerning

such sale.

(2) REGULATIONS.—The information to be furnished under

paragraph (1) shall be prescribed in regulations promulgated

by the Secretary. Such regulations shall provide protection

from public disclosure for such information, unless public disclosure is subsequently specifically authorized by the firm furnishing the information.

(d) CONTENTS OF REPORT.—

(1) IN GENERAL.—Each report under subsection (a) shall

include—
747 Sec. 310 DEFENSE PRODUCTION ACT OF 1950

(A) a net assessment of the elements of the industrial

base and technology base covered by the report;

(B) recommendations for appropriate remedial action

under the authority of this Act, or other law or regulations;

(C) a summary of the findings and recommendations

of any interagency studies conducted during the reporting

period under subsection (b);

(D) a summary of offset arrangements concluded during the reporting period for which information has been

furnished pursuant to subsection (c); and

(E) a summary and analysis of any bilateral and multilateral negotiations relating to the use of offsets completed during the reporting period.

(2) ALTERNATIVE FINDINGS OR RECOMMENDATIONS.—Each

report required under this section shall include any alternative

findings or recommendations offered by any departmental Secretary, agency head, or the United States Trade Representative to the Secretary.

(e) UTILIZATION OF ANNUAL REPORT IN NEGOTIATIONS.—The

findings and recommendations of the reports required by subsection (a), and any interagency reports and analyses shall be considered by representatives of the United States during bilateral

and multilateral negotiations to minimize the adverse effects of offsets.

SEC. 310. ø50 U.S.C. App. 2099a¿ CIVIL-MILITARY INTEGRATION.

An important purpose of this title is the creation of production

capacity that will remain economically viable after guarantees and

other assistance provided under this title have expired.

TITLE IV—PRICE AND WAGE STABILIZATION

øThis title terminated at the close of April 30, 1953, by section

121(b) of the Defense Production Act Amendments of 1952, 66 Stat.

306, June 30, 1952.¿

TITLE V—SETTLEMENT OF LABOR DISPUTES

øThis title terminated at the close of April 30, 1953, by section

121(b) of the Defense Production Act Amendments of 1952, 66 Stat.

306, June 30, 1952.¿

TITLE VI—CONTROL OF CONSUMER AND REAL ESTATE

CREDIT

øThe authority for the control of consumer credit terminated

June 30, 1952, by section 116(a) of the Defense Production Act

Amendments of 1952, 66 Stat. 305, June 30, 1952.¿

øThe authority for the control of real estate credit terminated

at the close of June 30, 1953, by section 11 of the Defense Production Act Amendments of 1953, 67 Stat. 131, June 30, 1953.¿
Sec. 701 DEFENSE PRODUCTION ACT OF 1950 748

TITLE VII—GENERAL PROVISIONS

SEC. 701. ø50 U.S.C. App. 2151¿ SMALL BUSINESS.

(a) PARTICIPATION.—Small business concerns shall be given the

maximum practicable opportunity to participate as contractors, and

subcontractors at various tiers, in all programs to maintain and

strengthen the Nation’s industrial base and technology base undertaken pursuant to this Act.

(b) ADMINISTRATION OF ACT.—In administering the programs,

implementing regulations, policies, and procedures under this Act,

requests, applications, or appeals from small business concerns

shall, to the maximum extent practicable, be expeditiously handled.

(c) ADVISORY COMMITTEE PARTICIPATION.—Representatives of

small business concerns shall be afforded the maximum opportunity to participate in such advisory committees as may be established pursuant to this Act.

(d) INFORMATION.—Information about this Act and activities

undertaken in accordance with this Act shall be made available to

small business concerns.

(e) ALLOCATIONS UNDER SECTION 101.—Whenever the President makes a determination to exercise any authority to allocate

any material pursuant to section 101, small business concerns shall

be accorded, to the extent practicable, a fair share of such material,

in proportion to the share received by such business concerns

under normal conditions, giving such special consideration as may

be possible to emerging small business concerns.

SEC. 702. ø50 U.S.C. App. 2152¿ DEFINITIONS.

For purposes of this Act, the following definitions shall apply:

(1) CRITICAL COMPONENT.—The term ‘‘critical component’’

includes such components, subsystems, systems, and related

special tooling and test equipment essential to the production,

repair, maintenance, or operation of weapon systems or other

items of military equipment identified by the Secretary of Defense as being essential to the execution of the national security strategy of the United States. Components identified as

critical by a National Security Assessment conducted pursuant

to section 113(i) of title 10, United States Code, or by a Presidential determination as a result of a petition filed under section 232 of the Trade Expansion Act of 1962 shall be designated as critical components for purposes of this Act, unless

the President determines that the designation is unwarranted.

(2) CRITICAL INDUSTRY FOR NATIONAL SECURITY.—The term

‘‘critical industry for national security’’ means any industry (or

industry sector) identified pursuant to section 2503(6) of title

10, United States Code, and such other industries or industry

sectors as may be designated by the President as essential to

provide industrial resources required for the execution of the

national security strategy of the United States.

(3) CRITICAL INFRASTRUCTURE.—The term ‘‘critical infrastructure’’ means any systems and assets, whether physical or

cyber-based, so vital to the United States that the degradation

or destruction of such systems and assets would have a debilitating impact on national security, including, but not limited
749 Sec. 702 DEFENSE PRODUCTION ACT OF 1950

to, national economic security and national public health or

safety.

(4) CRITICAL TECHNOLOGY.—The term ‘‘critical technology’’

includes any technology that is included in 1 or more of the

plans submitted pursuant to section 6681 of title 42, United

States Code, or section 2508 of title 10, United States Code

(unless subsequently deleted), or such other emerging or dual

use technology as may be designated by the President.

(5) CRITICAL TECHNOLOGY ITEM.—The term ‘‘critical technology item’’ means materials directly employing, derived from,

or utilizing a critical technology.

(6) DEFENSE CONTRACTOR.—The term ‘‘defense contractor’’

means any person who enters into a contract with the United

States—

(A) to furnish materials, industrial resources, or a critical technology for the national defense; or

(B) to perform services for the national defense.

(7) DOMESTIC DEFENSE INDUSTRIAL BASE.—The term ‘‘domestic defense industrial base’’ means domestic sources which

are providing, or which would be reasonably expected to provide, materials or services to meet national defense requirements during peacetime, graduated mobilization, national

emergency, or war.

(8) DOMESTIC SOURCE.—The term ‘‘domestic source’’ means

a business concern—

(A) that performs in the United States or Canada substantially all of the research and development, engineering, manufacturing, and production activities required of

such business concern under a contract with the United

States relating to a critical component or a critical technology item; and

(B) that procures from business concerns described in

subparagraph (A) substantially all of any components and

assemblies required under a contract with the United

States relating to a critical component or critical technology item.

(9) ESSENTIAL WEAPON SYSTEM.—The term ‘‘essential

weapon system’’ means a major weapon system and other

items of military equipment identified by the Secretary of Defense as being essential to the execution of the national security strategy of the United States.

(10) FACILITIES.—The term ‘‘facilities’’ includes all types of

buildings, structures, or other improvements to real property

(but excluding farms, churches or other places of worship, and

private dwelling houses), and services relating to the use of

any such building, structure, or other improvement.

(11) FOREIGN SOURCE.—The term ‘‘foreign source’’ means a

business entity other than a ‘‘domestic source’’.

(12) INDUSTRIAL RESOURCES.—The term ‘‘industrial resources’’ means materials, services, processes, or manufacturing equipment (including the processes, technologies, and

ancillary services for the use of such equipment) needed to establish or maintain an efficient and modern national defense

industrial capacity.
Sec. 703 DEFENSE PRODUCTION ACT OF 1950 750

(13) MATERIALS.—The term ‘‘materials’’ includes—

(A) any raw materials (including minerals, metals, and

advanced processed materials), commodities, articles, components (including critical components), products, and

items of supply; and

(B) any technical information or services ancillary to

the use of any such materials, commodities, articles, components, products, or items.

(14) NATIONAL DEFENSE.—The term ‘‘national defense’’

means programs for military and energy production or construction, military assistance to any foreign nation, stockpiling,

space, and any directly related activity. Such term includes

emergency preparedness activities conducted pursuant to title

VI of The Robert T. Stafford Disaster Relief and Emergency

Assistance Act and critical infrastructure protection and restoration.

(15) PERSON.—The term ‘‘person’’ includes an individual,

corporation, partnership, association, or any other organized

group of persons, or legal successor or representative thereof,

or any State or local government or agency thereof.

(16) SERVICES.—The term ‘‘services’’ includes any effort

that is needed for or incidental to—

(A) the development, production, processing, distribution, delivery, or use of an industrial resource or a critical

technology item; or

(B) the construction of facilities.

(17) SMALL BUSINESS CONCERN.—The term ‘‘small business

concern’’ means a business concern that meets the requirements of section 3(a) of the Small Business Act and the regulations promulgated pursuant to that section, and includes such

business concerns owned and controlled by socially and economically disadvantaged individuals or by women.

(18) SMALL BUSINESS CONCERN OWNED AND CONTROLLED BY

SOCIALLY AND ECONOMICALLY DISADVANTAGED INDIVIDUALS.—

The term ‘‘small business concern owned and controlled by socially and economically disadvantaged individuals’’ has the

same meaning as in section 8(d)(3)(C) of the Small Business

Act.

SEC. 703. ø50 U.S.C. App. 2153¿ CIVILIAN PERSONNEL.

Any officer or agency head may—

(1) appoint civilian personnel without regard to section

5331(b) of title 5, United States Code, and without regard to

the provisions of title 5, United States Code, governing appointments in the competitive service; and

(2) fix the rate of basic pay for such personnel without regard to the provisions of chapter 51 and subchapter III of chapter 53 of title 5, United States Code, relating to classification

and General Schedule pay rates,

except that no individual so appointed may receive pay in excess

of the annual rate of basic pay payable for GS–18 of the General

Schedule, as the President deems appropriate to carry out this Act.
751 Sec. 705 DEFENSE PRODUCTION ACT OF 1950

SEC. 704. ø50 U.S.C. App. 2154¿ REGULATIONS AND ORDERS.

(a) IN GENERAL.—Subject to section 709 and subsection (b), the

President may prescribe such regulations and issue such orders as

the President may determine to be appropriate to carry out this

Act.

(b) PROCUREMENT REGULATIONS.—Any procurement regulation,

procedure, or form issued pursuant to subsection (a) shall be issued

pursuant to section 25 of the Office of Federal Procurement Policy

Act, and shall conform to any governmentwide procurement policy

or regulation issued pursuant to section 6 or 25 of that Act.

SEC. 705. ø50 U.S.C. App. 2155¿ (a) The President shall be entitled, while this Act is in effect and for a period of two years thereafter, by regulation, subpoena, or otherwise, to obtain such information from, require such reports and the keeping of such records

by, make such inspection of the books, records, and other writings,

premises or property of, and take the sworn testimony of, and administer oaths and affirmations to, any person as may be necessary

or appropriate, in his discretion, to the enforcement or the administration of this Act and the regulations or orders issued thereunder.

The authority of the President under this section includes the authority to obtain information in order to perform industry studies

assessing the capabilities of the United States industrial base to

support the national defense. The President shall issue regulations

insuring that the authority of this subsection will be utilized only

after the scope and purpose of the investigation, inspection, or inquiry to be made have been defined by competent authority, and

it is assured that no adequate and authoritative data are available

from any Federal or other responsible agency. In case of contumacy

by, or refusal to obey a subpoena served upon, any person referred

to in this subsection, the district court of the United States for any

district in which such person is found or resides or transacts business, upon application by the President, shall have jurisdiction to

issue an order requiring such person to appear and give testimony

or to appear and produce documents or both; and any failure to

obey such order of the court may be punished by such court as a

contempt thereof.

(b) The production of a person’s books, records, or other documentary evidence shall not be required at any place other than the

place where such person usually keeps them, if prior to the return

date specified in the regulations, subpoena, or other document

issued with respect thereto, such person furnishes the President

with a true copy of such books, records, or other documentary evidence (certified by such person under oath to be a true and correct

copy) or enters into a stipulation with the President as to the information contained in such books, records, or other documentary evidence. Witnesses shall be paid the same fees and mileage that are

paid witnesses in the courts of the United States.

(c) Any person who willfully performs any act prohibited or

willfully fails to perform any act required by the above provisions

of this section, or any rule, regulation, or order thereunder, shall

upon conviction be fined not more than $10,000 or imprisoned for

not more than one year or both.

(d) Information obtained under this section which the President deems confidential or with reference to which a request for
Sec. 706 DEFENSE PRODUCTION ACT OF 1950 752

confidential treatment is made by the person furnishing such information shall not be published or disclosed unless the President determines that the withholding thereof is contrary to the interest of

the national defense, and any person willfully violating this provision shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both.

(e) Any person subpoenaed under this section shall have the

right to make a record of his testimony and to be represented by

counsel.

SEC. 706. ø50 U.S.C. App. 2156¿ (a) Whenever in the judgment

of the President any person has engaged or is about to engage in

any acts or practices which constitute or will constitute a violation

of any provision of this Act, he may make application to the appropriate court for an order enjoining such acts or practices, or for an

order enforcing compliance with such provision, and upon a showing by the President that such person has engaged or is about to

engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order, with or without such injunction or restraining order, shall be granted without bond.

(b) The district courts of the United States and the United

States courts of any Territory or other place subject to the jurisdiction of the United States shall have jurisdiction of violations of this

Act or any rule, regulation, order, or subpena thereunder, and of

all civil actions under this Act to enforce any liability or duty created by, or to enjoin any violation of, this Act or any rule, regulation, order, or subpena thereunder. Any criminal proceeding on account of any such violation may be brought in any district in which

any act, failure to act, or transaction constituting the violation occurred. Any such civil action may be brought in any such district

or in the district in which the defendant resides or transacts business. Process in such cases, criminal or civil, may be served in any

district wherein the defendant resides or transacts business or

wherever the defendant may be found; the subpena for witnesses

who are required to attend a court in any district in such case may

run into any other district. The termination of the authority granted in any title or section of this Act, or of any rule, regulation, or

order issued thereunder, shall not operate to defeat any suit, action, or prosecution, whether theretofore or thereafter commenced,

with respect to any right, liability, or offense incurred or committed

prior to the termination date of such title or of such rule, regulation, or order. No costs shall be assessed against the United States

in any proceeding under this Act. All litigation arising under this

Act or the regulations promulgated thereunder shall be under the

supervision and control of the Attorney General.

SEC. 707. ø50 U.S.C. App. 2157¿ No person shall be held liable

for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with a rule, regulation, or

order issued pursuant to this Act notwithstanding that any such

rule, regulation, or order shall thereafter be declared by judicial or

other competent authority to be invalid. No person shall discriminate against orders or contracts to which priority is assigned or for

which materials or facilities are allocated under title I of this Act

or under any rule, regulation, or order issued thereunder, by charging higher prices or by imposing different terms and conditions for
753 Sec. 708 DEFENSE PRODUCTION ACT OF 1950

such orders or contracts than for other generally comparable orders

or contracts, on in any other manner.

SEC. 708. ø50 U.S.C. App. 2158¿ (a) Except as specifically provided in subsection (j) of this section, no provision of this Act shall

be deemed to convey to any person any immunity from civil or

criminal liability, or to create defenses to actions, under the antitrust laws.

(b) DEFINITIONS.—For purposes of this Act—

(1) ANTITRUST LAWS.—The term ‘‘antitrust laws’’ has the

meaning giving to such term in subsection (a) of the first section of the Clayton Act, except that such term includes section

5 of the Federal Trade Commission Act to the extent that such

section 5 applies to unfair methods of competition.

(2) PLAN OF ACTION.—The term ‘‘plan of action’’ means any

of 1 or more documented methods adopted by participants in

an existing voluntary agreement implement that agreement.

(c)(1) Upon finding that conditions exist which may pose a direct threat to the national defense or its preparedness programs,

the President may consult with representatives of industry, business, financing, agriculture, labor, and other interests in order to

provide for the making by such persons, with the approval of the

President, of voluntary agreements and plans of action to help provide for the defense of the United States through the development

of preparedness programs and the expansion of productive capacity

and supply beyond levels needed to meet essential civilian demand

in the United States.

(2) The authority granted to the President in paragraph (1)

and subsection (d) may be delegated by him (A) to individuals who

are appointed by and with the advice and consent of the Senate,

or are holding offices to which they have been appointed by and

with the advice and consent of the Senate, (B) upon the condition

that such individuals consult with the Attorney General and with

the Federal Trade Commission not less than ten days before consulting with any persons under paragraph (1), and (C) upon the

condition that such individuals obtain the prior approval of the Attorney General, after consultation by the Attorney General with

the Federal Trade Commission, to consult under paragraph (1).

(d)(1) To achieve the objectives of subsection (c)(1) of this section, the President or any individual designated pursuant to subsection (c)(2) may provide for the establishment of such advisory

committees as he determines are necessary. In addition to the requirement specified in this section and except as provided in subsection (n), any such advisory committee shall be subject to the provisions of the Federal Advisory Committee Act, whether or not

such Act or any of its provisions expire or terminate during the

term of this Act or of such committees, and in all cases such advisory committees shall be chaired by a Federal employee (other than

an individual employed pursuant to section 3109 of title 5, United

States Code) and shall include representatives of the public. The

Attorney General and the Federal Trade Commission shall have

adequate advance notice of any meeting and may have an official

representative attend and participate in any such meeting.

(2) A full and complete verbatim transcript shall be kept of

such advisory committee meetings, and shall be taken and depos-
Sec. 708 DEFENSE PRODUCTION ACT OF 1950 754

ited, together with any agreement resulting therefrom, with the Attorney General and the Federal Trade Commission. Such transcript

and agreement shall be made available for public inspection and

copying, subject to the provisions of paragraphs (1), (3), and (4) of

section 552(b) of title 5, United States Code.

(e)(1) The individual or individuals referred to in subsection

(c)(2) shall, after approval of the Attorney General, after consultation by the Attorney General with the Chairman of the Federal

Trade Commission, promulgate rules, in accordance with section

553 of title 5, United States Code, incorporating standards and procedures by which voluntary agreements and plans of action may be

developed and carried out.

(2) In addition to the requirements of section 553 of title 5,

United States Code—

(A) general notice of the proposed rulemaking referred to

in paragraph (1) shall be published in the Federal Register,

and such notice shall include—

(i) a statement of the time, place, and nature of the

proposed rulemaking proceedings;

(ii) reference to the legal authority under which the

rule is being proposed; and

(iii) either the terms of substance of the proposed rule

or a description of the subjects and issues involved;

(B) the required publication of a rule shall be made not

less than thirty days before its effective date; and

(C) the individual or individuals referred to in paragraph

(1) shall give interested persons the right to petition for the

issuance, amendment, or repeal of a rule.

(3) The rules promulgated pursuant to this subsection incorporating standards and procedures by which voluntary agreements

may be developed shall provide, among other things, that—

(A) such agreements shall be developed at meetings which

include—

(i) the Attorney General or his delegate,

(ii) the Chairman of the Federal Trade Commission or

his delegate, and

(iii) an individual designated by the President in subsection (c)(2) or his delegate,

and which are chaired by the individual referred to in clause

(iii);

(B) at least seven days prior to any such meeting, notice

of the time, place, and nature of the meeting shall be published

in the Federal Register;

(C) interested persons may submit written data and views

concerning the proposed voluntary agreement, with or without

opportunity for oral presentation;

(D) interested persons may attend any such meeting unless the individual designated by the President in subsection

(c)(2) finds that the matter or matters to be discussed at such

meeting falls within the purview of matters described in section 552b(c) of title 5, United States Code;

(E) a full and verbatim transcript shall be made of any

such meeting and shall be transmitted by the chairman of the
755 Sec. 708 DEFENSE PRODUCTION ACT OF 1950

meeting to the Attorney General and to the Chairman of the

Federal Trade Commission;

(F) any voluntary agreement resulting from the meetings

shall be transmitted by the chairman of the meetings to the

Attorney General, the Chairman of the Federal Trade Commission, and the Congress; and

(G) any transcript referred to in subparagraph (E) and any

voluntary agreement referred to in subparagraph (F) shall be

available for public inspection and copying, subject to paragraphs (1), (3), and (4) of section 552(b) of title 5, United States

Code.

(f)(1) A voluntary agreement or plan of action may not become

effective unless and until—

(A) the individual referred to in subsection (c)(2) who is to

administer the agreement or plan approves it and certifies, in

writing, that the agreement or plan is necessary to carry out

the purposes of subsection (c)(1) and submits a copy of such

agreement or plan to the Congress; and

(B) the Attorney General (after consultation with the

Chairman of the Federal Trade Commission) finds, in writing,

that such purpose may not reasonably be achieved through a

voluntary agreement or plan of action having less anticompetitive effects or without any voluntary agreement or plan of action and publishes such finding in the Federal Register.

(2) Each voluntary agreement or plan of action which becomes

effective under paragraph (1) shall expire two years after the date

it becomes effective (and at two-year intervals thereafter, as the

case may be), unless (immediately prior to such expiration date)

the individual referred to in subsection (c)(2) who administers the

agreement or plan and the Attorney General (after consultation

with the Chairman of the Federal Trade Commission) make the

certification or finding, as the case may be, described in paragraph

(1) with respect to such voluntary agreement or plan of action and

publishes such certification or finding in the Federal Register, in

which case, the voluntary agreement or plan of action may be extended for an additional period of two years.

(g) The Attorney General and the Chairman of the Federal

Trade Commission shall monitor the carrying out of any voluntary

agreement or plan of action to assure—

(1) that the agreement or plan is carrying out the purposes

of subsection (c)(1);

(2) that the agreement or plan is being carried out under

rules promulgated pursuant to subsection (e);

(3) that the participants are acting in accordance with the

terms of the agreement or plan; and

(4) the protection and fostering of competition and the prevention of anticompetitive practices and effects.

(h) The rules promulgated under subsection (e) with respect to

the carrying out of voluntary agreements and plans of action shall

provide—

(1) for the maintenance, by participants in any voluntary

agreement or plan of action, of documents, minutes of meetings, transcripts, records, and other data related to the carrying out of any voluntary agreement or plan of action;
Sec. 708 DEFENSE PRODUCTION ACT OF 1950 756

(2) that participants in any voluntary agreement or plan

of action agree, in writing, to make available to the individual

designated by the President in subsection (c)(2) to administer

the voluntary agreement or plan of action, the Attorney General and the Chairman of the Federal Trade Commission for

inspection and copying at reasonable times and upon reasonable notice any item maintained pursuant to paragraph (1);

(3) that any item made available to the individual designated by the President in subsection (c)(2) to administer the

voluntary agreement or plan of action, the Attorney General,

or the Chairman of the Federal Trade Commission pursuant to

paragraph (2) shall be available from such individual, the Attorney General, or the Chairman of the Federal Trade Commission, as the case may be, for public inspection and copying,

subject to paragraph (1), (3), or (4) of section 552(b) of title 5,

United States Code;

(4) that the individual designated by the President in subsection (c)(2) to administer the voluntary agreement or plan of

action, the Attorney General, and the Chairman of the Federal

Trade Commission, or their delegates, may attend meetings to

carry out any voluntary agreement or plan of action;

(5) that a Federal employee (other than an individual employed pursuant to section 3109 of title 5 of the United States

Code) shall attend meetings to carry out any voluntary agreement or plan of action;

(6) that participants in any voluntary agreement or plan

of action provide the individual designated by the President in

subsection (c)(2) to administer the voluntary agreement, or

plan of action, the Attorney General, and the Chairman of the

Federal Trade Commission with adequate prior notice of the

time, place, and nature of any meeting to be held to carry out

the voluntary agreement or plan of action;

(7) for the attendance by interested persons of any meeting

held to carry out any voluntary agreement or plan of action,

unless the individual designated by the President in subsection

(c)(2) to administer the voluntary agreement or plan of action

finds that the matter or matters to be discussed at such meeting falls within the purview of matters described in section

552b(c) of title 5, United States Code;

(8) that the individual designated by the President in subsection (c)(2) to administer the voluntary agreement or plan of

action has published in the Federal Register prior notification

of the time, place, and nature of any meeting held to carry out

any voluntary agreement or plan of action, unless he finds that

the matter or matters to be discussed at such meeting falls

within the purview of matters described in section 552b(c) of

title 5, United States Code, in which case, notification of the

time, place, and nature of such meeting shall be published in

the Federal Register within ten days of the date of such meeting;

(9) that—

(A) the Attorney General (after consultation with the

Chairman of the Federal Trade Commission and the indi-
757 Sec. 708 DEFENSE PRODUCTION ACT OF 1950

vidual designated by the President in subsection (c)(2) to

administer a voluntary agreement or plan of action), or

(B) the individual designated by the President in subsection (c)(2) to administer a voluntary agreement or plan

of action (after consultation with the Attorney General and

the Chairman of the Federal Trade Commission),

may terminate or modify, in writing, the voluntary agreement

or plan of action at any time, and that effective, immediately

upon such termination or modification, any antitrust immunity

conferred upon the participants in the voluntary agreement or

plan of action by subsection (j) shall not apply to any act or

omission occurring after the time of such termination or modification;

(10) that participants in any voluntary agreement or plan

of action be reasonably representative of the appropriate industry or segment of such industry; and

(11) that the individual designated by the President in

subsection (c)(2) to administer the voluntary agreement or plan

of action shall provide prior written notification of the time,

place, and nature of any meeting to carry out a voluntary

agreement or plan of action to the Attorney General, the

Chairman of the Federal Trade Commission and the Congress.

(i) The Attorney General and the Chairman of the Federal

Trade Commission shall each promulgate such rules as each deems

necessary or appropriate to carry out his responsibility under this

section.

(j) DEFENSES.—

(1) IN GENERAL.—Subject to paragraph (4), there shall be

available as a defense for any person to any civil or criminal

action brought under the antitrust laws (or any similar law of

any State) with respect to any action taken to develop or carry

out any voluntary agreement or plan of action under this section that—

(A) such action was taken—

(i) in the course of developing a voluntary agreement initiated by the President or a plan of action

adopted under any such agreement; or

(ii) to carry out a voluntary agreement initiated by

the President and approved in accordance with this

section or a plan of action adopted under any such

agreement, and

(B) such person—

(i) complied with the requirements of this section

and any regulation prescribed under this section; and

(ii) acted in accordance with the terms of the voluntary agreement or plan of action.

(2) SCOPE OF DEFENSE.—Except in the case of actions

taken to develop a voluntary agreement or plan of action, the

defense established in paragraph (1) shall be available only if

and to the extent that the person asserting the defense demonstrates that the action was specified in, or was within the

scope of, an approved voluntary agreement initiated by the

President and approved in accordance with this section or a

plan of action adopted under any such agreement and ap-
Sec. 708 DEFENSE PRODUCTION ACT OF 1950 758

proved in accordance with this section. The defense established

in paragraph (1) shall not be available unless the President or

the President’s designee has authorized and actively supervised the voluntary agreement or plan of action.

(3) BURDEN OF PERSUASION.—Any person raising the defense established in paragraph (1) shall have the burden of

proof to establish the elements of the defense.

(4) EXCEPTION FOR ACTIONS TAKEN TO VIOLATE THE ANTI- TRUST LAWS.—The defense established in paragraph (1) shall

not be available if the person against whom the defense is asserted shows that the action was taken for the purpose of violating the antitrust laws.

(k) The Attorney General and the Federal Trade Commission

shall each make surveys for the purpose of determining any factors

which may tend to eliminate competition, create or strengthen

monoplies, injure small business, or otherwise promote undue concentration of economic power in the course of the administration of

this section. Such surveys shall include studies of the voluntary

agreements and plans of action authorized by this section. The Attorney General shall (after consultation with the Federal Trade

Commission) submit to the Congress and the President at least

once every year reports setting forth the results of such studies of

voluntary agreements and plans of action.

(l) The individual or individuals designated by the President in

subsection (c)(2) shall submit to the Congress and the President at

least once every year reports describing each voluntary agreement

or plan of action in effect and its contribution to achievement of the

purpose of subsection (c)(1).

(m) On complaint, the United States District Court for the District of Columbia shall have jurisdiction to enjoin any exemption or

suspension pursuant to subsections (d)(2), (e)(3) (D) and (G), and

(h) (3), (7), and (8), and to order the production of transcripts,

agreements, items, or other records maintained pursuant to this

section by the Attorney General, the Federal Trade Commission or

any individual designated under subsection (c)(2), where the court

determines that such transcripts, agreements, items, or other

records have been improperly withheld from the complainant. In

such a case the court shall determine the matter de novo, and may

examine the contents of such transcripts, agreements, items, or

other records in camera to determine whether such transcripts,

agreements, items, or other records or any parts thereof shall be

withheld under any of the exemption or suspension provisions referred to in this subsection, and the burden is on the Attorney General, the Federal Trade Commission, or such designated individual,

as the case may be, to sustain its action.

(n) EXEMPTION FROM ADVISORY COMMITTEE ACT PROVISIONS.—

Notwithstanding any other provision of law, any activity conducted

under a voluntary agreement or plan of action approved pursuant

to this section, when conducted in compliance with the requirements of this section, any regulation prescribed under this subsection, and the provisions of the voluntary agreement or plan of

action, shall be exempt from the Federal Advisory Committee Act

and any other Federal law and any Federal regulation relating to

advisory committees.
759 Sec. 710 DEFENSE PRODUCTION ACT OF 1950

(o) PREEMPTION OF CONTRACT LAW IN EMERGENCIES.—In any

action in any Federal or State court for breach of contract, there

shall be available as a defense that the alleged breach of contract

was caused predominantly by action taken during an emergency to

carry out a voluntary agreement or plan of action authorized and

approved in accordance with this section. Such defense shall not release the party asserting it from any obligation under applicable

law to mitigate damages to the greatest extent possible.

SEC. 709. ø50 U.S.C. App. 2159¿ PUBLIC PARTICIPATION IN RULEMAKING.

(a) EXEMPTION FROM THE ADMINISTRATIVE PROCEDURE ACT.— Any regulation issued under this Act shall not be subject to sections 551 through 559 of title 5, United States Code.

(b) OPPORTUNITY FOR NOTICE AND COMMENT.— (1) IN GENERAL.—Except as provided in subsection (c), any

regulation issued under this Act shall be published in the Federal Register and opportunity for public comment shall be provided for not less than 30 days, consistent with the requirements of section 553(b) of title 5, United States Code.

(2) WAIVER FOR TEMPORARY PROVISIONS.—The requirements of paragraph (1) may be waived, if—

(A) the officer authorized to issue the regulation finds

that urgent and compelling circumstances make compliance with such requirements impracticable;

(B) the regulation is issued on a temporary basis; and

(C) the publication of such temporary regulation is accompanied by the finding made under subparagraph (A)

(and a brief statement of the reasons for such finding) and

an opportunity for public comment is provided for not less

than 30 days before any regulation becomes final.

(3) CONSIDERATION OF PUBLIC COMMENTS.—All comments

received during the public comment period specified pursuant

to paragraph (1) or (2) shall be considered and the publication

of the final regulation shall contain written responses to such

comments.

(c) PUBLIC COMMENT ON PROCUREMENT REGULATIONS.—Any

procurement policy, regulation, procedure, or form (including any

amendment or modification of any such policy, regulation, procedure, or form) issued under this Act shall be subject to section 22

of the Office of Federal Procurement Policy Act.

SEC. 710. ø50 U.S.C. App. 2160¿ (a) øSubsec. (a) was repealed

by section 12(c)(1) of the Federal Employees Salary Increase Act of

1955, 69 Stat. 180, June 28, 1955.¿

(b)(1) The President is further authorized, to the extent he

deems it necessary and appropriate in order to carry out the provisions of this Act and subject to such regulations as he may issue,

to employ persons of outstanding experience and ability without

compensation.

(2) The President shall be guided in the exercise of the authority provided in this subsection by the following policies:

(i) So far as possible, operations under the Act shall be carried on by full-time salaried employees of the Government, and

appointments under this authority shall be to advisory or consultative positions only.
Sec. 710 DEFENSE PRODUCTION ACT OF 1950 760

1These sections were repealed and supplanted by sections 203–209 of title 18 of the United

States Code: see sections 2 and 3 of Public Law 87–849, October 23, 1962 (76 Stat. 1119, 1126).

(ii) Appointments to positions other than advisory or consultative may be made under this authority only when the requirements of the positions are such that the incumbent must

personally possess outstanding experience and ability not obtainable on a full-time, salaried basis.

(iii) In the appointment of personnel and in assignment of

their duties, the head of the department or agency involved

shall take steps to avoid, to as great an extent as possible, any

conflict between the governmental duties and the private interests of such personnel.

(3) Appointees under this subsection (b) shall when policy matters are involved, be limited to advising appropriate full-time salaried Government officials who are responsible for making policy decisions.

(4) Any person employed under this subsection (b) is hereby exempted, with respect to such employment, from the operation of

sections 281, 283, 284, 434, and 1914 of title 18, United States

Code, and section 190 of the Revised Statutes (5 U.S.C. 99),1 except

that—

(i) exemption hereunder shall not extend to the negotiation

or execution, by such appointee, of Government contracts with

the private employer of such appointee or with any corporation, joint stock company, association, firm, partnership, or

other entity in the pecuniary profits or contracts of which the

appointee has any direct or indirect interest;

(ii) exemption hereunder shall not extend to making any

recommendation or taking any action with respect to individual applications to the Government for relief or assistance,

on appeal or otherwise, made by the private employer of the

appointee or by any corporation, joint stock company, association, firm, partnership, or other entity in the pecuniary profits

or contracts of which the appointee has any direct or indirect

interest;

(iii) exemption hereunder shall not extend to the prosecution by the appointee, or participation by the appointee in any

fashion in the prosecution, of any claims against the Government involving any matter concerning which the appointee had

any responsibility during his employment under this subsection, during the period of such employment and the further

period of two years after the termination of such employment;

and

(iv) exemption hereunder shall not extend to the receipt or

payment of salary in connection with the appointee’s Government service hereunder from any source other than the private

employer of the appointee at the time of his appointment hereunder.

(5) Appointments under this subsection (b) shall be supported

by written certification by the head of the employing department

or agency—

(i) that the appointment is necessary and appropriate in

order to carry out the provisions of the Act;
761 Sec. 710 DEFENSE PRODUCTION ACT OF 1950

1These sections were repealed and supplanted by sections 203–209 of title 18 of the United

States Code: see sections 2 and 3 of Public Law 87–849, October 23, 1962 (76 Stat. 1119, 1126).

(ii) that the duties of the position to which the appointment is being made require outstanding experience and ability;

(iii) that the appointee has the outstanding experience and

ability required by the position; and

(iv) that the department or agency head has been unable

to obtain a person with the qualifications necessary for the position on a full-time, salaried basis.

(6) NOTICE AND FINANCIAL DISCLOSURE REQUIREMENTS.—

(A) PUBLIC NOTICE OF APPOINTMENT.—The head of any department or agency who appoints any individual under this

subsection shall publish a notice of such appointment in the

Federal Register, including the name of the appointee, the employing department or agency, the title of the appointee’s position, and the name of the appointee’s private employer.

(B) FINANCIAL DISCLOSURE.—Any individual appointed

under this subsection who is not required to file a financial disclosure report pursuant to section 101 of the Ethics in Government Act of 1978, shall file a confidential financial disclosure

report pursuant to section 107 of that Act with the appointing

department or agency.

(7) At least once every year the Director of the Office of Personnel Management shall survey appointments made under this

subsection and shall report his or her findings to the President and

make such recommendations as he or she may deem proper.

(8) Persons appointed under the authority of this subsection

may be allowed reimbursement for travel, subsistence, and other

necessary expenses incurred by them in carrying out the functions

for which they were appointed in the same manner as persons employed intermittently in the Federal Government are allowed expenses under section 5703 of title 5, United States Code.

(c) The President is authorized, to the extent he deems it necessary and appropriate in order to carry out the provisions of this

Act, to employ experts and consultants or organizations thereof, as

authorized by section 55a of title 5 of the United States Code. Individuals so employed may be compensated at rates not in excess of

$50 per diem and while away from their homes or regular places

of business they may be allowed transportation and not to exceed

$15 per diem in lieu of subsistance and other expenses while so

employed. The President is authorized to provide by regulation for

the exemption of such persons from the operation of sections 281,

283, 284, 434, and 1914 of title 18 of the United States Code and

section 190 of the Revised Statutes (5 U.S.C. 99). 1

(d) The President may utilize the services of Federal, State,

and local agencies and may utilize and establish such regional,

local, or other agencies and, utilize such voluntary and uncompensated services, as may from time to time be needed; and he is authorized to provide by regulation for the exemption of persons

whose services are utilized under this subsection from the operation of sections 281, 283, 284, 434, and 1914 of title 18 of the

United States Code and section 190 of the Revised Statutes (5

U.S.C. 99). 1
Sec. 711 DEFENSE PRODUCTION ACT OF 1950 762

1See footnote on previous page.

(e) The President is further authorized to provide for the establishment and training of a nucleus executive reserve for employment in executive positions in Government during periods of emergency. Members of this executive reserve who are not full-time

Government employees may be allowed transportation and per

diem in lieu of subsistence, in accordance with title 5 of the United

States Code (with respect to individuals serving without pay, while

away from their homes or regular places of business), for the purpose of participating in the executive reserve training program. The

President is authorized to provide by regulation for the exemption

of such persons who are not full-time Government employees from

the operation of sections 281, 283, 284, 434, and 1914 of title 18

of the United States Code and section 190 of the Revised Statutes

(5 U.S.C. 99).1

(f) Whoever, being an officer or employee of the United States

or any department or agency thereof (including any Member of the

Senate or House of Representatives), receives, by virtue of his office

or employment, confidential information, and (1) uses such information in speculating directly or indirectly on any commodity exchange, or (2) discloses such information for the purpose of aiding

any other person so to speculate, shall be fined not more than

$10,000 or imprisoned not more than one year, or both. As used in

this section, the term ‘‘speculate’’ shall not include a legitimate

hedging transaction, or a purchase or sale which is accompanied by

actual delivery of the commodity.

(g) The President, when he deems such action necessary, may

make provision for the printing and distribution of reports, in such

number and in such manner as he deems appropriate, concerning

the actions taken to carry out the objectives of this Act.

SEC. 711. ø50 U.S.C. App. 2161¿ (a) AUTHORIZATION.—Except

as provided in subsection (b), there are hereby authorized to be appropriated such sums as may be necessary and appropriate for the

carrying out of the provisions and purposes of this Act (including

sections 302 and 303, but excluding sections 305 and 306) by the

President and such agencies as he may designate or create. Funds

made available pursuant to this paragraph for the purposes of this

Act may be allocated or transferred for any of the purposes of this

Act, with the approval of the Office of Management and Budget, to

any agency designated to assist in carrying out this Act. Funds so

allocated or transferred shall remain available for such period as

may be specified in the Acts making such funds available.

(b) TITLE III AUTHORIZATION.—There are authorized to be appropriated for each of fiscal years 1996 through 2008, such sums

as may be necessary to carry out title III.

øSection 712 repealed by section 153 of P.L. 102–558 (106 Stat. 4219).¿

SEC. 713. ø50 U.S.C. App. 2163¿ The provisions of this Act

shall be applicable to the United States, its Territories and possessions, and the District of Columbia.

SEC. 714. øThe Small Defense Plants Administration created

by this section, added by the Defense Production Act amendments
763 Sec. 717 DEFENSE PRODUCTION ACT OF 1950

of 1951, was terminated at the close of July 31, 1953, and was succeeded by the Small Business Administration created under the

Small business Act of 1953. For purposes of section 301(a) of this

Act, section 714(a)(1) defined a small-business concern as follows:

‘‘* * * a small-business concern shall be deemed to be one which

is independently owned and operated and which is not dominant in

its field of operation,’’ and provided that, ‘‘The Administration, in

making a detailed definition, may use these criteria, among others:

independency of ownership and operation, number of employees,

dollar volume of business, and nondominance in its field.’’¿

SEC. 715. ø50 U.S.C. App. 2164¿ If any provision of this Act

or the application of such provision to any person or circumstances

shall be held invalid, the remainder of the Act, and the application

of such provision to persons or circumstances other than those as

to which it is held invalid, shall not be affected thereby.

øSection 716 repealed by section 154 of P.L. 102–558 (106 Stat. 4219).¿

SEC. 717. ø50 U.S.C. App. 2166¿ (a) Title I (except section

104), title III, and title VII (except sections 707, 708, and 721), and

all authority conferred thereunder, shall terminate at the close of

September 30, 2008: Provided, That all authority hereby or hereafter extended under title III of this Act shall be effective for any

fiscal year only to such extent or in such amounts as are provided

in advance in appropriation Acts. Section 714 of this Act, and all

authority conferred thereunder, shall terminate at the close of July

31, 1953. Section 104, title II, and title VI of this Act, and all authority conferred thereunder shall terminate at the close of June

30, 1953. Title IV and V of this Act, and all authority conferred

thereunder, shall terminate at the close of April 30, 1953.

(b) Notwithstanding the foregoing—

(1) The Congress by concurrent resolution or the President

by proclamation may terminate this Act prior to the termination otherwise provided thereof.

(2) The Congress may also provide by concurrent resolution that any section of this Act and all authority conferred

thereunder shall terminate prior to the termination otherwise

provided therefor.

(3) Any agency created under this Act may be continued in

existence for purposes of liquidation for not to exceed six

months after the termination of the provision authorizing the

creation of such agency.

(c) The termination of any section of this Act, or of any agency

or corporation utilized under this Act, shall not affect the disbursement of funds under, or the carrying out of, any contract, guarantee, commitment or other obligation entered into pursuant to

this Act prior to the date of such termination, or the taking of any

action necessary to preserve or protect the interests of the United

States in any amounts advanced or paid out in carrying on operations under this Act, or the taking of any action (including the

making of new guarantees) deemed by a guaranteeing agency to be

necessary to accomplish the orderly liquidation, adjustment, or settlement of any loans guaranteed under this Act, including actions

deemed necessary to avoid undue hardship to borrowers in recon-
Sec. 721 DEFENSE PRODUCTION ACT OF 1950 764

verting to normal civilian production; and all of the authority

granted to the President, guaranteeing agencies, and fiscal agents,

under section 301 of this Act shall be applicable to actions taken

pursuant to the authority contained in this subsection.

Notwithstanding any other provision of this Act, the termination of title VI or any section thereof shall not be construed as

affecting any obligation, condition, liability, or restriction arising

out of any agreement heretofore entered into pursuant to, or under

the authority of, section 602 or section 605 of this Act, or any

issuance thereunder, by any person or corporation and the Federal

Government or any agency thereof relating to the provision of

housing for defense workers or military personnel in an area designated as a critical defense housing area pursuant to law.

(d) No action for the recovery of any cooperative payment made

to a cooperative association by a Market Administrator under an

invalid provision of a milk marketing order issued by the Secretary

of Agriculture pursuant to the Agricultural Marketing Agreement

Act of 1937 shall be maintained unless such action is brought by

producers specifically named as party plaintiffs to recover their respective share of such payments within ninety days after the date

of enactment of the Defense Production Act Amendments of 1952

with respect to any cause of action heretofore accrued and not otherwise barred, or within ninety days after accrual with respect to

future payments, and unless each claimant shall allege and prove

(1) that he objected at the hearing to the provisions of the order

under which such payments were made and (2) that he either refused to accept payments computed with such deduction or accepted them under protest to either the Secretary or the Administrator.

The district courts of the United States shall have exclusive original jurisdiction of all such actions regardless of the amount involved. This subsection shall not apply to funds held in escrow pursuant to court order. Notwithstanding any other provision of this

Act, no termination date shall be applicable to this subsection.

øSection 718 repealed by section 155 of P.L. 102–558 (106 Stat. 4219).¿

øSection 719 repealed by section 5(b) of P.L. 100–679 (102 Stat. 4063).¿

øSection 720 repealed by section 156 of P.L. 102–558 (106 Stat. 4219).¿

AUTHORITY TO REVIEW CERTAIN MERGERS, ACQUISITIONS, AND

TAKEOVERS

SEC. 721. ø50 U.S.C. App. 2170¿ (a) INVESTIGATIONS.—The

President or the President’s designee may make an investigation to

determine the effects on national security of mergers, acquisitons,

and takeovers proposed or pending on or after the date of enactment of this section by or with foreign persons which could result

in foreign control of persons engaged in interstate commerce in the

United States. If it is determined that an investigation should be

undertaken, it shall commence no later than 30 days after receipt

by the President or the President’s designee of written notification

of the proposed or pending merger, acquisition, or takeover as prescribed by regulations promulgated pursuant to this section. Such
765 Sec. 721 DEFENSE PRODUCTION ACT OF 1950

investigation shall be completed no later than 45 days after such

determination.

(b) MANDATORY INVESTIGATIONS.—The President or the President’s designee shall make an investigation, as described in subsection (a), in any instance in which an entity controlled by or acting on behalf of a foreign government seeks to engage in any merger, acquisition, or takeover which could result in control of a person

engaged in interstate commerce in the United States that could affect the national security of the United States. Such investigation

shall—

(1) commence not later than 30 days after receipt by the

President or the President’s designee of written notification of

the proposed or pending merger, acquisition, or takeover, as

prescribed by regulations promulgated pursuant to this section;

and

(2) shall be completed not later than 45 days after its commencement.

(c) CONFIDENTIALITY OF INFORMATION.—Any information or

documentary material filed with the President or the President’s

designee pursuant to this section shall be exempt from disclosure

under section 552 of title 5, United States Code, and no such information or documentary material may be made public, except as

may be relevant to any administrative or judicial action or proceeding. Nothing in this subsection shall be construed to prevent

disclosure to either House of Congress or to any duly authorized

committee or subcommittee of the Congress.

(d) ACTION BY THE PRESIDENT.—Subject to subsection (d), the

President may take such action for such time as the President considers appropriate to suspend or prohibit any acquisition, merger,

or takeover, of a person engaged in interstate commerce in the

United States proposed or pending on or after the date of enactment of this section by or with foreign persons so that such control

will not threaten to impair the national security. The President

shall announce the decision to take action pursuant to this subsection not later than 15 days after the investigation described in

subsection (a) is completed. The President may direct the Attorney

General to seek appropriate relief, including divestment relief, in

the district courts of the United States in order to implement and

enforce this section.

(e) FINDINGS OF THE PRESIDENT.—The President may exercise

the authority conferred by subsection (c) only if the President finds

that—

(1) there is credible evidence that leads the President to

believe that the foreign interest exercising control might take

action that threatens to impair the national security, and

(2) provisions of law, other than this section and the International Emergency Economic Powers Act (50 U.S.C. 1701–

1706), do not in the President’s judgment provide adequate and

appropriate authority for the President to protect the national

security in the matter before the President.

The provisions of subsection (d) of this section shall not be subject

to judicial review.

(f) FACTORS TO BE CONSIDERED.—For purposes of this section,

the President or the President’s designee may, taking into account
Sec. 721 DEFENSE PRODUCTION ACT OF 1950 766

the requirements of national security, consider among other

factors—

(1) domestic production needed for projected national defense requirements,

(2) the capability and capacity of domestic industries to

meet national defense requirements, including the availability

of human resources, products, technology, materials, and other

supplies and services,

(3) the control of domestic industries and commercial activity by foreign citizens as it affects the capability and capacity

of the United States to meet the requirements of national security,

(4) the potential effects of the proposed or pending transaction on sales of military goods, equipment, or technology to

any country—

(A) identified by the Secretary of State—

(i) under section 6(j) of the Export Administration

Act of 1979, as a country that supports terrorism;

(ii) under section 6(l) of the Export Administration

Act of 1979, as a country of concern regarding missile

proliferation; or

(iii) under section 6(m) of the Export Administration Act of 1979, as a country of concern regarding the

proliferation of chemical and biological weapons; or

(B) listed under section 309(c) of the Nuclear Non-Proliferation Act of 1978 on the ‘‘Nuclear Non-ProliferationSpecial Country List’’ (15 C.F.R. Part 778, Supplement No.

4) or any successor list; and

(5) the potential effects of the proposed or pending transaction on United States international technological leadership

in areas affecting United States national security.

(g) REPORT TO THE CONGRESS.—The President shall immediately transmit to the Secretary of the Senate and the Clerk of the

House of Representatives a written report of the President’s determination of whether or not to take action under subsection (d), including a detailed explanation of the findings made under subsection (e) and the factors considered under subsection (f). Such report shall be consistent with the requirements of subsection (c) of

this Act.

(h) REGULATIONS.—The President direct the issuance of regulations to carry out this section. Such regulations shall, to the extent

possible, minimize paperwork burdens and shall to the extent possible coordinate reporting requirements under this section with reporting requirements under any other provision of Federal law.

(i) EFFECT ON OTHER LAW.—Nothing in this section shall be

construed to alter or affect any existing power, process, regulation,

investigation, enforcement measure, or review provided by any

other provision of law.

(j) TECHNOLOGY RISK ASSESSMENTS.—In any case in which an

assessment of the risk of diversion of defense critical technology is

performed by a designee of the President, a copy of such assessment shall be provided to any other designee of the President responsible for reviewing or investigating a merger, acquisition, or

takeover under this section.
767 Sec. 722 DEFENSE PRODUCTION ACT OF 1950

(k) QUADRENNIAL REPORT.— (1) IN GENERAL.—In order to assist the Congress in its

oversight responsibilities with respect to this section, the President and such agencies as the President shall designate shall

complete and furnish to the Congress, not later than 1 year

after the date of enactment of this section and upon the expiration of every 4 years thereafter, a report which—

(A) evaluates whether there is credible evidence of a

coordinated strategy by 1 or more countries or companies

to acquire United States companies involved in research,

development, or production of critical technologies for

which the United States is a leading producer; and

(B) evaluates whether there are industrial espionage

activities directed or directly assisted by foreign governments against private United States companies aimed at

obtaining commercial secrets related to critical technologies.

(2) DEFINITION.—For the purposes of this subsection, the

term ‘‘critical technologies’’ means technologies identified under

title VI of the National Science and Technology Policy, Organization, and Priorities Act of 1976 or other critical technology,

critical components, or critical technology items essential to national defense identified pursuant to this section.

(3) RELEASE OF UNCLASSIFIED STUDY.—The report required

by this subsection may be classified. An unclassified version of

the report shall be made available to the public.

SEC. 722. ø50 U.S.C. App. 2171¿ DEFENSE INDUSTRIAL BASE INFORMATION SYSTEM.

(a) ESTABLISHMENT REQUIRED.— (1) IN GENERAL.—The President, acting through the Secretary of Defense and the heads of such other Federal agencies

as the President may determine to be appropriate, shall provide for the establishment of an information system on the domestic defense industrial base which—

(A) meets the requirements of this section; and

(B) includes a systematic continuous procedure, to collect and analyze information necessary to evaluate—

(i) the adequacy of domestic industrial capacity to

furnish critical components and critical technology

items essential to the national security of the United

States;

(ii) dependence on foreign sources for critical components and critical technology items essential to defense production; and

(iii) the reliability of foreign sources for critical

components and critical technology items.

(2) INCORPORATION OF DINET.—The Defense Information

Network (or DINET), as established and maintained by the

Secretary of Defense on the date of enactment of the Defense

Production Act Amendments of 1992, shall be incorporated into

the system established pursuant to paragraph (1).

(3) USE OF INFORMATION.—Information collected and analyzed under the procedure established pursuant to paragraph

(1) shall constitute a basis for making any determination to ex-
Sec. 722 DEFENSE PRODUCTION ACT OF 1950 768

ercise any authority under this Act and a procedure for using

such information shall be integrated into the decisionmaking

process with regard to the exercise of any such authority.

(b) SOURCES OF INFORMATION.—

(1) FOREIGN DEPENDENCE.—

(A) SCOPE OF INFORMATION REVIEW.—The procedure

established to meet the requirement of subsection

(a)(1)(B)(ii) shall address defense production with respect

to the operations of prime contractors and at least the first

2 tiers of subcontractors, or at lower tiers if a critical component is identified at such lower tier.

(B) USE OF EXISTING DATA COLLECTION AND REVIEW

CAPABILITIES.—To the extent feasible and appropriate, the

President shall build upon existing methods of data collection and analysis and shall integrate information available

from intelligence agencies with respect to industrial and

technological conditions in foreign countries.

(C) INITIAL EMPHASIS ON PRIORITY LISTS.—In establishing the procedure referred to in subparagraph (A), the

Secretary may place initial emphasis on the production of

critical components and critical technology items.

(2) PRODUCTION BASE ANALYSIS.—

(A) COMPREHENSIVE REVIEW.—The analysis of the production base for any major system acquisition included in

the information system maintained pursuant to subsection

(a) shall, in addition to any information and analyses the

President may require—

(i) include a review of all subcontractors and suppliers, beginning with any raw material, special alloy,

or composite material involved in the production of a

completed system;

(ii) identify each contractor and subcontractor (or

supplier) at each level of production for such major

system acquisition which represents a potential for delaying or preventing the system’s production and acquisition, including the identity of each contractor or

subcontractor whose contract qualifies as a foreign

source or sole source contract and any supplier which

is a foreign source or sole source for any item required

in the production, including critical components; and

(iii) include information to permit appropriate

management of accelerated or surge production.

(B) INITIAL REQUIREMENT FOR STUDY OF PRODUCTION

BASES FOR NOT MORE THAN 6 MAJOR WEAPON SYSTEMS.—In

establishing the information system under subsection (a),

the President, acting through the Secretary of Defense,

shall require an analysis of the production base for not

more than 2 weapons of each military department which

are major systems (as defined in section 2302(5) of title 10,

United States Code). Each such analysis shall identify the

critical components of each system.

(3) CONSULTATION REGARDING THE CENSUS OF MANUFACTURERS.—
769 Sec. 722 DEFENSE PRODUCTION ACT OF 1950

(A) IN GENERAL.—The Secretary of Commerce, acting

through the Bureau of the Census, shall consult with the

Secretary of Defense and the Director of the Federal Emergency Management Agency to improve the usefulness of

information derived from the Census of Manufacturers in

carrying out this section.

(B) ISSUES TO BE ADDRESSED.—The consultation required under subparagraph (A) shall address improvements in the level of detail, timeliness, and availability of

input and output analyses derived from the Census of

Manufacturers necessary to carry out this section.

(c) STRATEGIC PLAN FOR DEVELOPING COMPREHENSIVE SYS- TEM.— (1) PLAN REQUIRED.—Not later than December 31, 1993,

the President shall provide for the establishment of and report

to the Congress on a strategic plan for developing a cost-effective, comprehensive information system capable of identifying

on a timely, ongoing basis vulnerability in critical components

and critical technology items.

(2) ASSESSMENT OF CERTAIN PROCEDURES.—In establishing

the plan pursuant to paragraph (1), the President shall assess

the performance and cost-effectiveness of procedures implemented under subsection (b), and shall seek to build upon such

procedures, as appropriate.

(d) CAPABILITIES OF SYSTEM.—

(1) IN GENERAL.—In connection with the establishment of

the information system under subsection (a), the President

shall direct the Secretary of Defense, the Secretary of Commerce, and the heads of such other Federal agencies as the

President may determine to be appropriate—

(A) to consult with each other and provide such information, assistance, and cooperation as may be necessary to

establish and maintain the information system required by

this section in a manner which allows the coordinated and

efficient entry of information on the domestic defense industrial base into, and the withdrawal, subject to the protection of proprietary data, of information on the domestic

defense industrial base from the system on an on-line

interactive basis by the Department of Defense;

(B) to assure access to the information on the system,

as appropriate, for all participating Federal agencies, including each military department;

(C) to coordinate standards, definitions, and specifications for information on defense production, which is collected by the Department of Defense and the military departments so that such information can be used by any

Federal agency or department, as the President determines to be appropriate; and

(D) to assure that the information in the system is updated, as appropriate, with the active assistance of the private sector.

(2) TASK FORCE ON MILITARY-CIVILIAN PARTICIPATION.—

Upon the establishment of the information system under subsection (a), the President shall convene a task force consisting
Sec. 722 DEFENSE PRODUCTION ACT OF 1950 770

of the Secretary of Defense, the Secretary of Commerce, the

Secretary of each military department, and the heads of such

other Federal agencies and departments as the President may

determine to be appropriate to establish guidelines and procedures to ensure that all Federal agencies and departments

which acquire information with respect to the domestic defense

industrial base are fully participating in the system, unless the

President determines that all appropriate Federal agencies and

departments, including each military department, are voluntarily providing information which is necessary for the system

to carry out the purposes of this Act and chapter 148 of title

10, United States Code.

(e) REPORT ON SUBCONTRACTOR AND SUPPLIER BASE.— (1) REPORT REQUIRED.—The President shall issue a report

(in accordance with paragraph (4) which includes—

(A) a list of critical components, technologies, and

technology items for which there is found to be inadequate

domestic industrial capacity or capability; and

(B) an assessment of those subsectors of the economy

of the United States which—

(i) support production of any component, technology, or technology item listed pursuant to subparagraph (A); or

(ii) have been identified as being critical to the development and production of components required for

the production of weapons, weapon systems, and other

military equipment essential to the national defense.

(2) MATTERS TO BE CONSIDERED.—The assessment made

under paragraph (1)(B) shall include consideration of—

(A) the capacity of domestic sources, especially commercial firms, to fulfill peacetime requirements and graduated mobilization requirements for various items of supply and services;

(B) any trend relating to the capabilities of domestic

sources to meet such peacetime and mobilization requirements;

(C) the extent to which the production or acquisition

of various items of military material is dependent on foreign sources; and

(D) any reason for the decline of the capabilities of selected sectors of the United States economy necessary to

meet peacetime and mobilization requirements,

including—

(i) stability of defense requirements;

(ii) acquisition policies;

(iii) vertical integration of various segments of the

industrial base;

(iv) superiority of foreign technology and production efficiencies;

(v) foreign government support of nondomestic

sources; and

(vi) offset arrangements.

(3) POLICY RECOMMENDATIONS.—The report required by

paragraph (1) may provide specific policy recommendations to
771 Sec. 722 DEFENSE PRODUCTION ACT OF 1950

correct deficiencies identified in the assessment, which would

help to strengthen domestic sources.

(4) TIME FOR ISSUANCE.—The report required by paragraph

(1) shall be issued not later than July 1 of each even-numbered

year which begins after 1992.

(5) RELEASE OF UNCLASSIFIED REPORT.—The report required by this subsection may be classified. An unclassified

version of the report shall be made available to the public.
772

12. SPECIAL ACCESS PROGRAMS

Section 1152 of the National Defense Authorization Act for Fiscal Year 1994 (Public

Law 103–160; approved Nov. 30, 1993)

SEC. 1152. ø50 U.S.C. 435 note¿ REPORTS RELATING TO CERTAIN SPECIAL ACCESS PROGRAMS AND SIMILAR PROGRAMS.

(a) IN GENERAL.—(1) Not later than February 1 of each year,

the head of each covered department or agency shall submit to

Congress a report on each special access program carried out in the

department or agency.

(2) Each such report shall set forth—

(A) the total amount requested by the department or agency for special access programs within the budget submitted

under section 1105 of title 31, United States Code, for the fiscal year following the fiscal year in which the report is submitted; and

(B) for each program in such budget that is a special access program—

(i) a brief description of the program;

(ii) in the case of a procurement program, a brief discussion of the major milestones established for the

program;

(iii) the actual cost of the program for each fiscal year

during which the program has been conducted before the

fiscal year during which that budget is submitted; and

(iv) the estimated total cost of the program and the estimated cost of the program for (I) the current fiscal year,

(II) the fiscal year for which the budget is submitted, and

(III) each of the four succeeding fiscal years during which

the program is expected to be conducted.

(b) NEWLY DESIGNATED PROGRAMS.—(1) Not later than February 1 of each year, the head of each covered department or agency shall submit to Congress a report that, with respect to each new

special access program of that department or agency, provides—

(A) notice of the designation of the program as a special

access program; and

(B) justification for such designation.

(2) A report under paragraph (1) with respect to a program

shall include—

(A) the current estimate of the total program cost for the

program; and

(B) an identification, as applicable, of existing programs or

technologies that are similar to the technology, or that have a

mission similar to the technology, or that have a mission similar to the mission, of the program that is the subject of the notice.
773 Sec. 1152 SPECIAL ACCESS PROGRAMS

(3) In this subsection, the term ‘‘new special access program’’

means a special access program that has not previously been covered in a notice and justification under this subsection.

(c) REVISION IN CLASSIFICATION OF PROGRAMS.—(1) Whenever

a change in the classification of a special access program of a covered department or agency is planned to be made or whenever classified information concerning a special access program of a covered

department or agency is to be declassified and made public, the

head of the department or agency shall submit to Congress a report

containing a description of the proposed change or the information

to be declassified, the reasons for the proposed change or declassification, and notice of any public announcement planned to be

made with respect to the proposed change or declassification.

(2) Except as provided in paragraph (3), a report referred to in

paragraph (1) shall be submitted not less than 14 days before the

date on which the proposed change, declassification, or public announcement is to occur.

(3) If the head of the department or agency determines that because of exceptional circumstances the requirement of paragraph

(2) cannot be met with respect to a proposed change, declassification, or public announcement concerning a special access program

of the department or agency, the head of the department or agency

may submit the report required by paragraph (1) regarding the

proposed change, declassification, or public announcement at any

time before the proposed change, declassification, or public announcement is made and shall include in the report an explanation

of the exceptional circumstances.

(d) REVISION OF CRITERIA FOR DESIGNATING PROGRAMS.—

Whenever there is a modification or termination of the policy and

criteria used for designating a program of a covered department or

agency as a special access program, the head of the department or

agency shall promptly notify Congress of such modification or termination. Any such notification shall contain the reasons for the

modification or termination and, in the case of a modification, the

provisions of the policy as modified.

(e) WAIVER OF REPORTING REQUIREMENT.—(1) The head of a

covered department or agency may waive any requirement under

subsection (a), (b), or (c) that certain information be included in a

report under that subsection if the head of the department or agency determines that inclusion of that information in the report

would adversely affect the national security. Any such waiver shall

be made on a case-by-case basis.

(2) If the head of a department or agency exercises the authority provided under paragraph (1), the head of the department or

agency shall provide the information described in that subsection

with respect to the special access program concerned, and the justification for the waiver, to Congress.

(f) INITIATION OF PROGRAMS.—A special access program may

not be initiated by a covered department or agency until—

(1) the appropriate oversight committees are notified of the

program; and

(2) a period of 30 days elapses after such notification is received.

(g) DEFINITIONS.—For purposes of this section:
Sec. 1152 SPECIAL ACCESS PROGRAMS 774

(1) COVERED DEPARTMENT OR AGENCY.—(A) Except as provided in subparagraph (B), the term ‘‘covered department or

agency’’ means any department or agency of the Federal Government that carries out a special access program.

(B) Such term does not include—

(i) the Department of Defense (which is required to

submit reports on special access programs under section

119 of title 10, United States Code);

(ii) the National Nuclear Security Administration

(which is required to submit reports on special access programs under section 3236 of the National Nuclear Security

Administration Act); or

(iii) an agency in the Intelligence Community (as defined in section 3(4) of the National Security Act of 1947

(50 U.S.C. 401a)).

(2) SPECIAL ACCESS PROGRAM.—The term ‘‘special access

program’’ means any program that, under the authority of Executive Order 12356 (or any successor Executive order), is established by the head of a department or agency whom the

President has designated in the Federal Register as an original

‘‘secret’’ or ‘‘top secret’’ classification authority that imposes

‘‘need-to-know’’ controls or access controls beyond those controls normally required (by regulations applicable to such department or agency) for access to information classified as

‘‘confidential’’, ‘‘secret’’, or ‘‘top secret’’.
775

E. BASE CLOSURE AND REALIGNMENT AND

REAL PROPERTY ISSUES

[As amended through the end of the first session of the

108th Congress, December 31, 2003]

777

1. DEFENSE BASE CLOSURE AND REALIGNMENT ACT OF

1990

[Enacted as title XXIX of the National Defense Authorization Act for Fiscal Year

1991 (Public Law 101–510, approved Nov. 5, 1990; ø10 U.S.C. 2687 note¿)]

TITLE XXIX—DEFENSE BASE CLOSURES AND

REALIGNMENTS

PART A—DEFENSE BASE CLOSURE AND REALIGNMENT COMMISSION

SEC. 2901. SHORT TITLE AND PURPOSE

(a) SHORT TITLE.—This part may be cited as the ‘‘Defense Base

Closure and Realignment Act of 1990’’.

(b) PURPOSE.—The purpose of this part is to provide a fair

process that will result in the timely closure and realignment of

military installations inside the United States.

SEC. 2902. THE COMMISSION

(a) ESTABLISHMENT.—There is established an independent commission to be known as the ‘‘Defense Base Closure and Realignment Commission’’.

(b) DUTIES.—The Commission shall carry out the duties specified for it in this part.

(c) APPOINTMENT.—(1)(A) The Commission shall be composed of

eight members appointed by the President, by and with the advise

and consent of the Senate.

(B) The President shall transmit to the Senate the nominations

for appointment to the Commission—

(i) by no later than January 3, 1991, in the case of members of the Commission whose terms will expire at the end of

the first session of the 102nd Congress;

(ii) by no later than January 25, 1993, in the case of members of the Commission whose terms will expire at the end of

the first session of the 103rd Congress; and

(iii) by no later than January 3, 1995, in the case of members of the Commission whose terms will expire at the end of

the first session of the 104th Congress.

(C) If the President does not transmit to Congress the nominations for appointment to the Commission on or before the date

specified for 1993 in clause (ii) of subparagraph (B) or for 1995 in

clause (iii) of such subparagraph, the process by which military installations may be selected for closure or realignment under this

part with respect to that year shall be terminated.

(2) In selecting individuals for nominations for appointments to

the Commission, the President should consult with—

(A) the Speaker of the House of Representatives concerning the appointment of two members;
Sec. 2902 1990 BASE REALIGNMENT AND CLOSURE ACT 778

(B) the majority leader of the Senate concerning the appointment of two members;

(C) the minority leader of the House of Representatives

concerning the appointment of one member; and

(D) the minority leader of the Senate concerning the appointment of one member.

(3) At the time the President nominates individuals for appointment to the Commission for each session of Congress referred

to in paragraph (1)(B), the President shall designate one such individual who shall serve as Chairman of the Commission.

(d) TERMS.—(1) Except as provided in paragraph (2), each

member of the Commission shall serve until the adjournment of

Congress sine die for the session during which the member was appointed to the Commission.

(2) The Chairman of the Commission shall serve until the confirmation of a successor.

(e) MEETINGS.—(1) The Commission shall meet only during calendar years 1991, 1993, and 1995.

(2)(A) Each meeting of the Commission, other than meetings in

which classified information is to be discussed, shall be open to the

public.

(B) All the proceedings, information, and deliberations of the

Commission shall be open, upon request, to the following:

(i) The Chairman and the ranking minority party member

of the Subcommittee on Readiness, Sustainability, and Support

of the Committee on Armed Services of the Senate, or such

other members of the Subcommittee designated by such Chairman or ranking minority party member.

(ii) The Chairman and the ranking minority party member

of the Subcommittee on Military Installations and Facilities of

the Committee on Armed Services of the House of Representatives, or such other members of the Subcommittee designated

by such Chairman or ranking minority party member.

(iii) The Chairmen and ranking minority party members of

the Subcommittees on Military Construction of the Committees

on Appropriations of the Senate and of the House of Representatives, or such other members of the Subcommittees designated by such Chairmen or ranking minority party members.

(f) VACANCIES.—A vacancy in the Commission shall be filled in

the same manner as the original appointment, but the individual

appointed to fill the vacancy shall serve only for the unexpired portion of the term for which the individual’s predecessor was appointed.

(g) PAY AND TRAVEL EXPENSES.—(1)(A) Each member, other

than the Chairman, shall be paid at a rate equal to the daily equivalent of the minimum annual rate of basic pay payable for level IV

of the Executive Schedule under section 5315 of title 5, United

States Code, for each day (including travel time) during which the

member is engaged in the actual performance of duties vested in

the Commission.

(B) The Chairman shall be paid for each day referred to in subparagraph (A) at a rate equal to the daily equivalent of the minimum annual rate of basic pay payable for level III of the Executive

Schedule under section 5314 of title 5, United States Code.
779 Sec. 2902 1990 BASE REALIGNMENT AND CLOSURE ACT

(2) Members shall receive travel expenses, including per diem

in lieu of subsistence, in accordance with sections 5702 and 5703

of title 5, United States Code.

(h) DIRECTOR OF STAFF.—(1) The Commission shall, without

regard to section 5311(b) of title 5, United States Code, appoint a

Director who has not served on active duty in the Armed Forces

or as a civilian employee of the Department of Defense during the

one-year period preceding the date of such appointment.

(2) The Director shall be paid at the rate of basic pay payable

for level IV of the Executive Schedule under section 5315 of title

5, United States Code.

(i) STAFF.—(1) Subject to paragraphs (2) and (3), the Director,

with the approval of the Commission, may appoint and fix the pay

of additional personnel.

(2) The Director may make such appointments without regard

to the provisions of title 5, United States Code, governing appointments in the competitive service, and any personnel so appointed

may be paid without regard to the provisions of chapter 51 and

subchapter III of chapter 53 of that title relating to classification

and General Schedule pay rates, except that an individual so appointed may not receive pay in excess of the annual rate of basic

pay payable for GS–18 of the General Schedule.

(3)(A) Not more than one-third of the personnel employed by

or detailed to the Commission may be on detail from the Department of Defense.

(B)(i) Not more than one-fifth of the professional analysts of

the Commission staff may be persons detailed from the Department of Defense to the Commission.

(ii) No person detailed from the Department of Defense to the

Commission may be assigned as the lead professional analyst with

respect to a military department or defense agency.

(C) A person may not be detailed from the Department of Defense to the Commission if, within 12 months before the detail is

to begin, that person participated personally and substantially in

any matter within the Department of Defense concerning the preparation of recommendations for closures or realignments of military

installations.

(D) No member of the Armed Forces, and no officer or employee of the Department of Defense, may—

(i) prepare any report concerning the effectiveness, fitness,

or efficiency of the performance on the staff of the Commission

of any person detailed from the Department of Defense to that

staff;

(ii) review the preparation of such a report; or

(iii) approve or disapprove such a report.

(4) Upon request of the Director, the head of any Federal department or agency may detail any of the personnel of that department or agency to the Commission to assist the Commission in carrying out its duties under this part.

(5) The Comptroller General of the United States shall provide

assistance, including the detailing of employees, to the Commission

in accordance with an agreement entered into with the Commission.

(6) The following restrictions relating to the personnel of the

Commission shall apply during 1992 and 1994:
Sec. 2903 1990 BASE REALIGNMENT AND CLOSURE ACT 780

(A) There may not be more than 15 persons on the staff

at any one time.

(B) The staff may perform only such functions as are necessary to prepare for the transition to new membership on the

Commission in the following year.

(C) No member of the Armed Forces and no employee of

the Department of Defense may serve on the staff.

(j) OTHER AUTHORITY.—(1) The Commission may procure by

contract, to the extent funds are available, the temporary or intermittent services of experts or consultants pursuant to section 3109

of title 5, United States Code.

(2) The Commission may lease space and acquire personal

property to the extent funds are available.

(k) FUNDING.—(1) There are authorized to be appropriated to

the Commission such funds as are necessary to carry out its duties

under this part. Such funds shall remain available until expended.

(2) If no funds are appropriated to the Commission by the end

of the second session of the 101st Congress, the Secretary of Defense may transfer, for fiscal year 1991, to the Commission funds

from the Department of Defense Base Closure Account established

by section 207 of Public Law 100–526. Such funds shall remain

available until expended. (3)(A) The Secretary may transfer not more than $300,000

from unobligated funds in the account referred to in subparagraph

(B) for the purpose of assisting the Commission in carrying out its

duties under this part during October, November, and December

1995. Funds transferred under the preceding sentence shall remain

available until December 31, 1995.

(B) The account referred to in subparagraph (A) is the Department of Defense Base Closure Account established under section

207(a) of the Defense Authorization Amendments and Base Closure

and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note).

(l) TERMINATION.—The Commission shall terminate on December 31, 1995.

(m) PROHIBITION AGAINST RESTRICTING COMMUNICATIONS.— Section 1034 of title 10, United States Code, shall apply with respect to communications with the Commission.

SEC. 2903. PROCEDURE FOR MAKING RECOMMENDATIONS FOR BASE

CLOSURES AND REALIGNMENTS

(a) FORCE-STRUCTURE PLAN.—(1) As part of the budget justification documents submitted to Congress in support of the budget for the Department of Defense for each of the fiscal years 1992,

1994, and 1996, the Secretary shall include a force-structure plan

for the Armed Forces based on an assessment by the Secretary of

the probable threats to the national security during the six-year period beginning with the fiscal year for which the budget request is

made and of the anticipated levels of funding that will be available

for national defense purposes during such period.

(2) Such plan shall include, without any reference (directly or

indirectly) to military installations inside the United States that

may be closed or realigned under such plan—

(A) a description of the assessment referred to in paragraph (1);

(B) a description (i) of the anticipated force structure during and at the end of each such period for each military depart-
781 Sec. 2903 1990 BASE REALIGNMENT AND CLOSURE ACT

ment (with specifications of the number and type of units in

the active and reserve forces of each such department), and (ii)

of the units that will need to be forward based (with a justification thereof) during and at the end of each such period; and

(C) a description of the anticipated implementation of such

force-structure plan.

(3) The Secretary shall also transmit a copy of each such forcestructure plan to the Commission.

(b) SELECTION CRITERIA.—(1) The Secretary shall, by no later

than December 31, 1990, publish in the Federal Register and transmit to the congressional defense committees the criteria proposed

to be used by the Department of Defense in making recommendations for the closure or realignment of military installations inside

the United States under this part. The Secretary shall provide an

opportunity for public comment on the proposed criteria for a period of at least 30 days and shall include notice of that opportunity

in the publication required under the preceding sentence.

(2)(A) The Secretary shall, by no later than February 15, 1991,

publish in the Federal Register and transmit to the congressional

defense committees the final criteria to be used in making recommendations for the closure or realignment of military installations inside the United States under this part. Except as provided

in subparagraph (B), such criteria shall be the final criteria to be

used, along with the force-structure plan referred to in subsection

(a), in making such recommendations unless disapproved by a joint

resolution of Congress enacted on or before March 15, 1991.

(B) The Secretary may amend such criteria, but such amendments may not become effective until they have been published in

the Federal Register, opened to public comment for at least 30

days, and then transmitted to the congressional defense committees in final form by no later than January 15 of the year concerned. Such amended criteria shall be the final criteria to be used,

along with the force-structure plan referred to in subsection (a), in

making such recommendations unless disapproved by a joint resolution of Congress enacted on or before February 15 of the year

concerned.

(c) DOD RECOMMENDATIONS.—(1) The Secretary may, by no

later than April 15, 1991, March 15, 1993, and March 1, 1995, publish in the Federal Register and transmit to the congressional defense committees and to the Commission a list of the military installations inside the United States that the Secretary recommends

for closure or realignment on the basis of the force-structure plan

and the final criteria referred to in subsection (b)(2) that are applicable to the year concerned.

(2) The Secretary shall include, with the list of recommendations published and transmitted pursuant to paragraph (1), a summary of the selection process that resulted in the recommendation

for each installation, including a justification for each recommendation. The Secretary shall transmit the matters referred to in the

preceding sentence not later than 7 days after the date of the

transmittal to the congressional defense committees and the Commission of the list referred to in paragraph (1).

(3)(A) In considering military installations for closure or realignment, the Secretary shall consider all military installations inside the United States equally without regard to whether the in-
Sec. 2903 1990 BASE REALIGNMENT AND CLOSURE ACT 782

stallation has been previously considered or proposed for closure or

realignment by the Department.

(B) In considering military installations for closure or realignment, the Secretary may not take into account for any purpose any

advance conversion planning undertaken by an affected community

with respect to the anticipated closure or realignment of an installation.

(C) For purposes of subparagraph (B), in the case of a community anticipating the economic effects of a closure or realignment

of a military installation, advance conversion planning—

(i) shall include community adjustment and economic diversification planning undertaken by the community before an

anticipated selection of a military installation in or near the

community for closure or realignment; and

(ii) may include the development of contingency redevelopment plans, plans for economic development and diversification, and plans for the joint use (including civilian and military

use, public and private use, civilian dual use, and civilian

shared use) of the property or facilities of the installation after

the anticipated closure or realignment.

(4) In addition to making all information used by the Secretary

to prepare the recommendations under this subsection available to

Congress (including any committee or member of Congress), the

Secretary shall also make such information available to the Commission and the Comptroller General of the United States.

(5)(A) Each person referred to in subparagraph (B), when submitting information to the Secretary of Defense or the Commission

concerning the closure or realignment of a military installation,

shall certify that such information is accurate and complete to the

best of that person’s knowledge and belief.

(B) Subparagraph (A) applies to the following persons:

(i) The Secretaries of the military departments.

(ii) The heads of the Defense Agencies.

(iii) Each person who is in a position the duties of which

include personal and substantial involvement in the preparation and submission of information and recommendations concerning the closure or realignment of military installations, as

designated in regulations which the Secretary of Defense shall

prescribe, regulations which the Secretary of each military department shall prescribe for personnel within that military department, or regulations which the head of each Defense Agency shall prescribe for personnel within that Defense Agency.

(6) Any information provided to the Commission by a person

described in paragraph (5)(B) shall also be submitted to the Senate

and the House of Representatives to be made available to the Members of the House concerned in accordance with the rules of that

House. The information shall be submitted to the Senate and

House of Representatives within 24 hours after the submission of

the information to the Commission.

(d) REVIEW AND RECOMMENDATIONS BY THE COMMISSION.—(1)

After receiving the recommendations from the Secretary pursuant

to subsection (c) for any year, the Commission shall conduct public

hearings on the recommendations. All testimony before the Commission at a public hearing conducted under this paragraph shall

be presented under oath.
783 Sec. 2903 1990 BASE REALIGNMENT AND CLOSURE ACT

(2)(A) The Commission shall, by no later than July 1 of each

year in which the Secretary transmits recommendations to it pursuant to subsection (c), transmit to the President a report containing the Commission’s findings and conclusions based on a review and analysis of the recommendations made by the Secretary,

together with the Commission’s recommendations for closures and

realignments of military installations inside the United States.

(B) Subject to subparagraph (C), in making its recommendations, the Commission may make changes in any of the recommendations made by the Secretary if the Commission determines that the Secretary deviated substantially from the forcestructure plan and final criteria referred to in subsection (c)(1) in

making recommendations.

(C) In the case of a change described in subparagraph (D) in

the recommendations made by the Secretary, the Commission may

make the change only if the Commission—

(i) makes the determination required by subparagraph (B);

(ii) determines that the change is consistent with the forcestructure plan and final criteria referred to in subsection (c)(1);

(iii) publishes a notice of the proposed change in the Federal Register not less than 45 days before transmitting its recommendations to the President pursuant to paragraph (2); and

(iv) conducts public hearings on the proposed change.

(D) Subparagraph (C) shall apply to a change by the Commission in the Secretary’s recommendations that would—

(i) add a military installation to the list of military installations recommended by the Secretary for closure;

(ii) add a military installation to the list of military installations recommended by the Secretary for realignment; or

(iii) increase the extent of a realignment of a particular

military installation recommended by the Secretary.

(E) In making recommendations under this paragraph, the

Commission may not take into account for any purpose any advance conversion planning undertaken by an affected community

with respect to the anticipated closure or realignment of a military

installation.

(3) The Commission shall explain and justify in its report submitted to the President pursuant to paragraph (2) any recommendation made by the Commission that is different from the

recommendations made by the Secretary pursuant to subsection (c).

The Commission shall transmit a copy of such report to the congressional defense committees on the same date on which it transmits its recommendations to the President under paragraph (2).

(4) After July 1 of each year in which the Commission transmits recommendations to the President under this subsection, the

Commission shall promptly provide, upon request, to any Member

of Congress information used by the Commission in making its recommendations.

(5) The Comptroller General of the United States shall—

(A) assist the Commission, to the extent requested, in the

Commission’s review and analysis of the recommendations

made by the Secretary pursuant to subsection (c); and

(B) by no later than April 15 of each year in which the Secretary makes such recommendations, transmit to the Congress
Sec. 2904 1990 BASE REALIGNMENT AND CLOSURE ACT 784

and to the Commission a report containing a detailed analysis

of the Secretary’s recommendations and selection process.

(e) REVIEW BY THE PRESIDENT.—(1) The President shall, by no

later than July 15 of each year in which the Commission makes

recommendations under subsection (d), transmit to the Commission

and to the Congress a report containing the President’s approval or

disapproval of the Commission’s recommendations.

(2) If the President approves all the recommendations of the

Commission, the President shall transmit a copy of such recommendations to the Congress, together with a certification of such

approval.

(3) If the President disapproves the recommendations of the

Commission, in whole or in part, the President shall transmit to

the Commission and the Congress the reasons for that disapproval.

The Commission shall then transmit to the President, by no later

than August 15 of the year concerned, a revised list of recommendations for the closure and realignment of military installations.

(4) If the President approves all of the revised recommendations of the Commission transmitted to the President under paragraph (3), the President shall transmit a copy of such revised recommendations to the Congress, together with a certification of such

approval.

(5) If the President does not transmit to the Congress an approval and certification described in paragraph (2) or (4) by September 1 of any year in which the Commission has transmitted recommendations to the President under this part, the process by

which military installations may be selected for closure or realignment under this part with respect to that year shall be terminated.

SEC. 2904. CLOSURE AND REALIGNMENT OF MILITARY INSTALLATIONS

(a) IN GENERAL.—Subject to subsection (b), the Secretary

shall—

(1) close all military installations recommended for closure

by the Commission in each report transmitted to the Congress

by the President pursuant to section 2903(e);

(2) realign all military installations recommended for realignment by such Commission in each such report;

(3) carry out the privatization in place of a military installation recommended for closure or realignment by the Commission in the 2005 report only if privatization in place is a method of closure or realignment of the military installation specified in the recommendations of the Commission in such report

and is determined by the Commission to be the most cost-effective method of implementation of the recommendation;

(4) initiate all such closures and realignments no later

than two years after the date on which the President transmits

a report to the Congress pursuant to section 2903(e) containing

the recommendations for such closures or realignments; and

(5) complete all such closures and realignments no later

than the end of the six-year period beginning on the date on

which the President transmits the report pursuant to section

2903(e) containing the recommendations for such closures or

realignments.
785 Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT

(b) CONGRESSIONAL DISAPPROVAL.—(1) The Secretary may not

carry out any closure or realignment recommended by the Commission in a report transmitted from the President pursuant to section

2903(e) if a joint resolution is enacted, in accordance with the provisions of section 2908, disapproving such recommendations of the

Commission before the earlier of—

(A) the end of the 45-day period beginning on the date on

which the President transmits such report; or

(B) the adjournment of Congress sine die for the session

during which such report is transmitted.

(2) For purposes of paragraph (1) of this subsection and subsections (a) and (c) of section 2908, the days on which either House

of Congress is not in session because of an adjournment of more

than three days to a day certain shall be excluded in the computation of a period.

SEC. 2905. IMPLEMENTATION

(a) IN GENERAL.—(1) In closing or realigning any military installation under this part, the Secretary may—

(A) take such actions as may be necessary to close or realign any military installation, including the acquisition of

such land, the construction of such replacement facilities, the

performance of such activities, and the conduct of such advance

planning and design as may be required to transfer functions

from a military installation being closed or realigned to another military installation, and may use for such purpose funds

in the Account or funds appropriated to the Department of Defense for use in planning and design, minor construction, or operation and maintenance;

(B) provide—

(i) economic adjustment assistance to any community

located near a military installation being closed or realigned, and

(ii) community planning assistance to any community

located near a military installation to which functions will

be transferred as a result of the closure or realignment of

a military installation,

if the Secretary of Defense determines that the financial resources available to the community (by grant or otherwise) for

such purposes are inadequate, and may use for such purposes

funds in the Account or funds appropriated to the Department

of Defense for economic adjustment assistance or community

planning assistance;

(C) carry out activities for the purposes of environmental

restoration and mitigation at any such installation, and shall

use for such purposes funds in the Account;

(D) provide outplacement assistance to civilian employees

employed by the Department of Defense at military installations being closed or realigned, and may use for such purpose

funds in the Account or funds appropriated to the Department

of Defense for outplacement assistance to employees; and

(E) reimburse other Federal agencies for actions performed

at the request of the Secretary with respect to any such closure

or realignment, and may use for such purpose funds in the Ac-
Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT 786

count or funds appropriated to the Department of Defense and

available for such purpose.

(2) In carrying out any closure or realignment under this part,

the Secretary shall ensure that environmental restoration of any

property made excess to the needs of the Department of Defense

as a result of such closure or realignment be carried out as soon

as possible with funds available for such purpose.

(b) MANAGEMENT AND DISPOSAL OF PROPERTY.—(1) The Administrator of General Services shall delegate to the Secretary of Defense, with respect to excess and surplus real property, facilities,

and personal property located at a military installation closed or

realigned under this part—

(A) the authority of the Administrator to utilize excess

property under subchapter II of chapter 5 of title 40, United

States Code;

(B) the authority of the Administrator to dispose of surplus

property under subchapter III of chapter 5 of title 40, United

States Code;

(C) the authority to dispose of surplus property for public

airports under sections 47151 through 47153 of title 49, United

States Code; and

(D) the authority of the Administrator to determine the

availability of excess or surplus real property for wildlife conservation purposes in accordance with the Act of May 19, 1948

(16 U.S.C. 667b).

(2)(A) Subject to subparagraph (B) and paragraphs (3), (4), (5),

and (6), the Secretary of Defense shall exercise the authority delegated to the Secretary pursuant to paragraph (1) in accordance

with—

(i) all regulations governing the utilization of excess property and the disposal of surplus property under the Federal

Property and Administrative Services Act of 1949; and

(ii) all regulations governing the conveyance and disposal

of property under section 13(g) of the Surplus Property Act of

1944 (50 U.S.C. App. 1622(g)).

(B) The Secretary may, with the concurrence of the Administrator of General Services—

(i) prescribe general policies and methods for utilizing excess property and disposing of surplus property pursuant to

the authority delegated under paragraph (1); and

(ii) issue regulations relating to such policies and methods,

which shall supersede the regulations referred to in subparagraph (A) with respect to that authority.

(C) The Secretary of Defense may transfer real property or facilities located at a military installation to be closed or realigned

under this part, with or without reimbursement, to a military department or other entity (including a nonappropriated fund instrumentality) within the Department of Defense or the Coast Guard.

(D) Before any action may be taken with respect to the disposal of any surplus real property or facility located at any military

installation to be closed or realigned under this part, the Secretary

of Defense shall consult with the Governor of the State and the

heads of the local governments concerned for the purpose of considering any plan for the use of such property by the local community

concerned.
787 Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT

(E) If a military installation to be closed, realigned, or placed

in an inactive status under this part includes a road used for public

access through, into, or around the installation, the Secretary of

Defense shall consult with the Governor of the State and the heads

of the local governments concerned for the purpose of considering

the continued availability of the road for public use after the installation is closed, realigned, or placed in an inactive status.

(3)(A) Not later than 6 months after the date of approval of the

closure or realignment of a military installation under this part,

the Secretary, in consultation with the redevelopment authority

with respect to the installation, shall—

(i) inventory the personal property located at the installation; and

(ii) identify the items (or categories of items) of such personal property that the Secretary determines to be related to

real property and anticipates will support the implementation

of the redevelopment plan with respect to the installation.

(B) If no redevelopment authority referred to in subparagraph

(A) exists with respect to an installation, the Secretary shall consult with—

(i) the local government in whose jurisdiction the installation is wholly located; or

(ii) a local government agency or State government agency

designated for the purpose of such consultation by the chief executive officer of the State in which the installation is located.

(C)(i) Except as provided in subparagraphs (E) and (F), the

Secretary may not carry out any of the activities referred to in

clause (ii) with respect to an installation referred to in that clause

until the earlier of—

(I) one week after the date on which the redevelopment

plan for the installation is submitted to the Secretary;

(II) the date on which the redevelopment authority notifies

the Secretary that it will not submit such a plan;

(III) twenty-four months after the date of approval of the

closure or realignment of the installation; or

(IV) ninety days before the date of the closure or realignment of the installation.

(ii) The activities referred to in clause (i) are activities relating

to the closure or realignment of an installation to be closed or realigned under this part as follows:

(I) The transfer from the installation of items of personal

property at the installation identified in accordance with subparagraph (A).

(II) The reduction in maintenance and repair of facilities

or equipment located at the installation below the minimum

levels required to support the use of such facilities or equipment for nonmilitary purposes.

(D) Except as provided in paragraph (4), the Secretary may not

transfer items of personal property located at an installation to be

closed or realigned under this part to another installation, or dispose of such items, if such items are identified in the redevelopment plan for the installation as items essential to the reuse or redevelopment of the installation. In connection with the development of the redevelopment plan for the installation, the Secretary

shall consult with the entity responsible for developing the redevel-
Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT 788

opment plan to identify the items of personal property located at

the installation, if any, that the entity desires to be retained at the

installation for reuse or redevelopment of the installation.

(E) This paragraph shall not apply to any personal property located at an installation to be closed or realigned under this part

if the property—

(i) is required for the operation of a unit, function, component, weapon, or weapons system at another installation;

(ii) is uniquely military in character, and is likely to have

no civilian use (other than use for its material content or as

a source of commonly used components);

(iii) is not required for the reutilization or redevelopment

of the installation (as jointly determined by the Secretary and

the redevelopment authority);

(iv) is stored at the installation for purposes of distribution

(including spare parts or stock items); or

(v)(I) meets known requirements of an authorized program

of another Federal department or agency for which expenditures for similar property would be necessary, and (II) is the

subject of a written request by the head of the department or

agency.

(F) Notwithstanding subparagraphs (C)(i) and (D), the Secretary may carry out any activity referred to in subparagraph

(C)(ii) or (D) if the Secretary determines that the carrying out of

such activity is in the national security interest of the United

States.

(4)(A) The Secretary may transfer real property and personal

property located at a military installation to be closed or realigned

under this part to the redevelopment authority with respect to the

installation for purposes of job generation on the installation.

(B) With respect to military installations for which the date of

approval of closure or realignment is after January 1, 2005, the

Secretary shall seek to obtain consideration in connection with any

transfer under this paragraph of property located at the installation in an amount equal to the fair market value of the property,

as determined by the Secretary. The transfer of property of a military installation under subparagraph (A) may be without consideration if the redevelopment authority with respect to the

installation—

(i) agrees that the proceeds from any sale or lease of the

property (or any portion thereof) received by the redevelopment

authority during at least the first seven years after the date

of the initial transfer of property under subparagraph (A) shall

be used to support the economic redevelopment of, or related

to, the installation; and

(ii) executes the agreement for transfer of the property and

accepts control of the property within a reasonable time after

the date of the property disposal record of decision or finding

of no significant impact under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(C) For purposes of subparagraph (B), the use of proceeds from

a sale or lease described in such subparagraph to pay for, or offset

the costs of, public investment on or related to the installation for

any of the following purposes shall be considered a use to support

the economic redevelopment of, or related to, the installation:
789 Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT

1Section 2837(b) of the Military Construction Authorization Act for Fiscal Year 1996 (Public

Law 104–106; 110 Stat. 560) provides as follows: ‘‘Notwithstanding any other provision of law,

a department or agency of the Federal Government that enters into a lease of property under

[this subparagraph (C)] may improve the leased property using funds appropriated or otherwise

available to the department or agency for such purpose.’’.

(i) Road construction.

(ii) Transportation management facilities.

(iii) Storm and sanitary sewer construction.

(iv) Police and fire protection facilities and other public facilities.

(v) Utility construction.

(vi) Building rehabilitation.

(vii) Historic property preservation.

(viii) Pollution prevention equipment or facilities.

(ix) Demolition.

(x) Disposal of hazardous materials generated by demolition.

(xi) Landscaping, grading, and other site or public improvements.

(xii) Planning for or the marketing of the development and

reuse of the installation.

(D) The Secretary may recoup from a redevelopment authority

such portion of the proceeds from a sale or lease described in subparagraph (B) as the Secretary determines appropriate if the redevelopment authority does not use the proceeds to support economic

redevelopment of, or related to, the installation for the period specified in subparagraph (B).

(E) 1 (i) The Secretary may transfer real property at an installation approved for closure or realignment under this part (including property at an installation approved for realignment which will

be retained by the Department of Defense or another Federal agency after realignment) to the redevelopment authority for the installation if the redevelopment authority agrees to lease, directly upon

transfer, one or more portions of the property transferred under

this subparagraph to the Secretary or to the head of another department or agency of the Federal Government. Subparagraph (B)

shall apply to a transfer under this subparagraph.

(ii) A lease under clause (i) shall be for a term of not to exceed

50 years, but may provide for options for renewal or extension of

the term by the department or agency concerned.

(iii) A lease under clause (i) may not require rental payments

by the United States.

(iv) A lease under clause (i) shall include a provision specifying

that if the department or agency concerned ceases requiring the

use of the leased property before the expiration of the term of the

lease, the remainder of the lease term may be satisfied by the same

or another department or agency of the Federal Government using

the property for a use similar to the use under the lease. Exercise

of the authority provided by this clause shall be made in consultation with the redevelopment authority concerned.

(v) Notwithstanding clause (iii), if a lease under clause (i) involves a substantial portion of the installation, the department or

agency concerned may obtain facility services for the leased property and common area maintenance from the redevelopment authority or the redevelopment authority’s assignee as a provision of
Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT 790

the lease. The facility services and common area maintenance shall

be provided at a rate no higher than the rate charged to non-Federal tenants of the transferred property. Facility services and common area maintenance covered by the lease shall not include—

(I) municipal services that a State or local government is

required by law to provide to all landowners in its jurisdiction

without direct charge; or

(II) firefighting or security-guard functions.

(F) The transfer of personal property under subparagraph (A)

shall not be subject to the provisions of subchapters II and III of

chapter 5 of title 40, United States Code, if the Secretary determines that the transfer of such property is necessary for the effective implementation of a redevelopment plan with respect to the installation at which such property is located.

(G) The provisions of section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42

U.S.C. 9620(h)) shall apply to any transfer of real property under

this paragraph.

(H)(i) In the case of an agreement for the transfer of property

of a military installation under this paragraph that was entered

into before April 21, 1999, the Secretary may modify the agreement, and in so doing compromise, waive, adjust, release, or reduce

any right, title, claim, lien, or demand of the United States, if—

(I) the Secretary determines that as a result of changed

economic circumstances, a modification of the agreement is

necessary;

(II) the terms of the modification do not require the return

of any payments that have been made to the Secretary;

(III) the terms of the modification do not compromise,

waive, adjust, release, or reduce any right, title, claim, lien, or

demand of the United States with respect to in-kind consideration; and

(IV) the cash consideration to which the United States is

entitled under the modified agreement, when combined with

the cash consideration to be received by the United States for

the disposal of other real property assets on the installation,

are as sufficient as they were under the original agreement to

fund the reserve account established under section 204(b)(7)(C)

of the Defense Authorization Amendments and Base Closure

and Realignment Act, with the depreciated value of the investment made with commissary store funds or nonappropriated

funds in property disposed of pursuant to the agreement being

modified, in accordance with section 2906(d).

(ii) When exercising the authority granted by clause (i), the

Secretary may waive some or all future payments if, and to the extent that, the Secretary determines such waiver is necessary.

(iii) With the exception of the requirement that the transfer be

without consideration, the requirements of subparagraphs (B), (C),

and (D) shall be applicable to any agreement modified pursuant to

clause (i).

(I) In the case of an agreement for the transfer of property of

a military installation under this paragraph that was entered into

during the period beginning on April 21, 1999, and ending on the

date of enactment of the National Defense Authorization Act for

Fiscal Year 2000, at the request of the redevelopment authority
791 Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT

concerned, the Secretary shall modify the agreement to conform to

all the requirements of subparagraphs (B), (C), and (D). Such a

modification may include the compromise, waiver, adjustment, release, or reduction of any right, title, claim, lien, or demand of the

United States under the agreement.

(J) The Secretary may require any additional terms and conditions in connection with a transfer under this paragraph as such

Secretary considers appropriate to protect the interests of the

United States.

(5)(A) Except as provided in subparagraphs (B) and (C), the

Secretary shall take such actions as the Secretary determines necessary to ensure that final determinations under paragraph (1) regarding whether another department or agency of the Federal Government has identified a use for any portion of a military installation to be closed or realigned under this part, or will accept transfer of any portion of such installation, are made not later than 6

months after the date of approval of closure or realignment of that

installation.

(B) The Secretary may, in consultation with the redevelopment

authority with respect to an installation, postpone making the final

determinations referred to in subparagraph (A) with respect to the

installation for such period as the Secretary determines appropriate if the Secretary determines that such postponement is in the

best interests of the communities affected by the closure or realignment of the installation.

(C)(i) Before acquiring non-Federal real property as the location for a new or replacement Federal facility of any type, the head

of the Federal agency acquiring the property shall consult with the

Secretary regarding the feasibility and cost advantages of using

Federal property or facilities at a military installation closed or realigned or to be closed or realigned under this part as the location

for the new or replacement facility. In considering the availability

and suitability of a specific military installation, the Secretary and

the head of the Federal agency involved shall obtain the concurrence of the redevelopment authority with respect to the installation and comply with the redevelopment plan for the installation.

(ii) Not later than 30 days after acquiring non-Federal real

property as the location for a new or replacement Federal facility,

the head of the Federal agency acquiring the property shall submit

to Congress a report containing the results of the consultation

under clause (i) and the reasons why military installations referred

to in such clause that are located within the area to be served by

the new or replacement Federal facility or within a 200-mile radius

of the new or replacement facility, whichever area is greater, were

considered to be unsuitable or unavailable for the site of the new

or replacement facility.

(iii) This subparagraph shall apply during the period beginning

on the date of the enactment of the National Defense Authorization

Act for Fiscal Year 1998 and ending on July 31, 2001.

(6)(A) Except as provided in this paragraph, nothing in this

section shall limit or otherwise affect the application of the provisions of the McKinney-Vento Homeless Assistance Act (42 U.S.C.

11301 et seq.) to military installations closed under this part. For

procedures relating to the use to assist the homeless of buildings
Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT 792

and property at installations closed under this part after the date

of the enactment of this sentence, see paragraph (7).

(B)(i) Not later than the date on which the Secretary of Defense completes the determination under paragraph (5) of the

transferability of any portion of an installation to be closed under

this part, the Secretary shall—

(I) complete any determinations or surveys necessary to

determine whether any building or property referred to in

clause (ii) is excess property, surplus property, or unutilized or

underutilized property for the purpose of the information referred to in section 501(a) of such Act (42 U.S.C. 11411(a)); and

(II) submit to the Secretary of Housing and Urban Development information on any building or property that is so determined.

(ii) The buildings and property referred to in clause (i) are any

buildings or property located at an installation referred to in that

clause for which no use is identified, or of which no Federal department or agency will accept transfer, pursuant to the determination

of transferability referred to in that clause.

(C) Not later than 60 days after the date on which the Secretary of Defense submits information to the Secretary of Housing

and Urban Development under subparagraph (B)(ii), the Secretary

of Housing and Urban Development shall—

(i) identify the buildings and property described in such information that are suitable for use to assist the homeless;

(ii) notify the Secretary of Defense of the buildings and

property that are so identified;

(iii) publish in the Federal Register a list of the buildings

and property that are so identified, including with respect to

each building or property the information referred to in section

501(c)(1)(B) of such Act; and

(iv) make available with respect to each building and property the information referred to in section 501(c)(1)(C) of such

Act in accordance with such section 501(c)(1)(C).

(D) Any buildings and property included in a list published

under subparagraph (C)(iii) shall be treated as property available

for application for use to assist the homeless under section 501(d)

of such Act.

(E) The Secretary of Defense shall make available in accordance with section 501(f) of such Act any buildings or property referred to in subparagraph (D) for which—

(i) a written notice of an intent to use such buildings or

property to assist the homeless is received by the Secretary of

Health and Human Services in accordance with section

501(d)(2) of such Act;

(ii) an application for use of such buildings or property for

such purpose is submitted to the Secretary of Health and

Human Services in accordance with section 501(e)(2) of such

Act; and

(iii) the Secretary of Health and Human Services—

(I) completes all actions on the application in accordance with section 501(e)(3) of such Act; and

(II) approves the application under section 501(e) of

such Act.
793 Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT

(F)(i) Subject to clause (ii), a redevelopment authority may express in writing an interest in using buildings and property referred to in subparagraph (D), and buildings and property referred

to in subparagraph (B)(ii) which have not been identified as suitable for use to assist the homeless under subparagraph (C), or use

such buildings and property, in accordance with the redevelopment

plan with respect to the installation at which such buildings and

property are located as follows:

(I) If no written notice of an intent to use such buildings

or property to assist the homeless is received by the Secretary

of Health and Human Services in accordance with section

501(d)(2) of such Act during the 60-day period beginning on the

date of the publication of the buildings and property under

subparagraph (C)(iii).

(II) In the case of buildings and property for which such

notice is so received, if no completed application for use of the

buildings or property for such purpose is received by the Secretary of Health and Human Services in accordance with section 501(e)(2) of such Act during the 90-day period beginning

on the date of the receipt of such notice.

(III) In the case of buildings and property for which such

application is so received, if the Secretary of Health and

Human Services rejects the application under section 501(e) of

such Act.

(ii) Buildings and property shall be available only for the purpose of permitting a redevelopment authority to express in writing

an interest in the use of such buildings and property, or to use

such buildings and property, under clause (i) as follows:

(I) In the case of buildings and property referred to in

clause (i)(I), during the one-year period beginning on the first

day after the 60-day period referred to in that clause.

(II) In the case of buildings and property referred to in

clause (i)(II), during the one-year period beginning on the first

day after the 90-day period referred to in that clause.

(III) In the case of buildings and property referred to in

clause (i)(III), during the one-year period beginning on the date

of the rejection of the application referred to in that clause.

(iii) A redevelopment authority shall express an interest in the

use of buildings and property under this subparagraph by notifying

the Secretary of Defense, in writing, of such an interest.

(G)(i) Buildings and property available for a redevelopment authority under subparagraph (F) shall not be available for use to assist the homeless under section 501 of such Act while so available

for a redevelopment authority.

(ii) If a redevelopment authority does not express an interest

in the use of buildings or property, or commence the use of buildings or property, under subparagraph (F) within the applicable

time periods specified in clause (ii) of such subparagraph, such

buildings or property shall be treated as property available for use

to assist the homeless under section 501(a) of such Act.
Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT 794

1Section 2(e) of the Base Closure Community Redevelopment and Homeless Assistance Act

of 1994 (Public Law 103–421, approved October 25, 1994) provided that paragraph (7) would

apply to an installation approved for closure before October 25, 1994, subject to certain conditions, if the redevelopment authority for the installation submits a request to the Secretary of

Defense not later than 60 days after that date.

(7) 1(A) The disposal of buildings and property located at installations approved for closure or realignment under this part after

October 25, 1994, shall be carried out in accordance with this paragraph rather than paragraph (6).

(B)(i) Not later than the date on which the Secretary of Defense completes the final determinations referred to in paragraph

(5) relating to the use or transferability of any portion of an installation covered by this paragraph, the Secretary shall—

(I) identify the buildings and property at the installation

for which the Department of Defense has a use, for which another department or agency of the Federal Government has

identified a use, or of which another department or agency will

accept a transfer;

(II) take such actions as are necessary to identify any

building or property at the installation not identified under

subclause (I) that is excess property or surplus property;

(III) submit to the Secretary of Housing and Urban Development and to the redevelopment authority for the installation

(or the chief executive officer of the State in which the installation is located if there is no redevelopment authority for the installation at the completion of the determination described in

the stem of this sentence) information on any building or property that is identified under subclause (II); and

(IV) publish in the Federal Register and in a newspaper of

general circulation in the communities in the vicinity of the installation information on the buildings and property identified

under subclause (II).

(ii) Upon the recognition of a redevelopment authority for an

installation covered by this paragraph, the Secretary of Defense

shall publish in the Federal Register and in a newspaper of general

circulation in the communities in the vicinity of the installation information on the redevelopment authority.

(C)(i) State and local governments, representatives of the

homeless, and other interested parties located in the communities

in the vicinity of an installation covered by this paragraph shall

submit to the redevelopment authority for the installation a notice

of the interest, if any, of such governments, representatives, and

parties in the buildings or property, or any portion thereof, at the

installation that are identified under subparagraph (B)(i)(II). A notice of interest under this clause shall describe the need of the government, representative, or party concerned for the buildings or

property covered by the notice.

(ii) The redevelopment authority for an installation shall assist

the governments, representatives, and parties referred to in clause

(i) in evaluating buildings and property at the installation for purposes of this subparagraph.

(iii) In providing assistance under clause (ii), a redevelopment

authority shall—

(I) consult with representatives of the homeless in the

communities in the vicinity of the installation concerned; and
795 Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT

(II) undertake outreach efforts to provide information on

the buildings and property to representatives of the homeless,

and to other persons or entities interested in assisting the

homeless, in such communities.

(iv) It is the sense of Congress that redevelopment authorities

should begin to conduct outreach efforts under clause (iii)(II) with

respect to an installation as soon as is practicable after the date

of approval of closure or realignment of the installation.

(D)(i) State and local governments, representatives of the

homeless, and other interested parties shall submit a notice of interest to a redevelopment authority under subparagraph (C) not

later than the date specified for such notice by the redevelopment

authority.

(ii) The date specified under clause (i) shall be—

(I) in the case of an installation for which a redevelopment

authority has been recognized as of the date of the completion

of the determinations referred to in paragraph (5), not earlier

than 3 months and not later than 6 months after the date of

publication of such determination in a newspaper of general

circulation in the communities in the vicinity of the installation under subparagraph (B)(i)(IV); and

(II) in the case of an installation for which a redevelopment authority is not recognized as of such date, not earlier

than 3 months and not later than 6 months after the date of

the recognition of a redevelopment authority for the installation.

(iii) Upon specifying a date for an installation under this subparagraph, the redevelopment authority for the installation shall—

(I) publish the date specified in a newspaper of general circulation in the communities in the vicinity of the installation

concerned; and

(II) notify the Secretary of Defense of the date.

(E)(i) In submitting to a redevelopment authority under subparagraph (C) a notice of interest in the use of buildings or property at an installation to assist the homeless, a representative of

the homeless shall submit the following:

(I) A description of the homeless assistance program that

the representative proposes to carry out at the installation.

(II) An assessment of the need for the program.

(III) A description of the extent to which the program is

or will be coordinated with other homeless assistance programs

in the communities in the vicinity of the installation.

(IV) A description of the buildings and property at the installation that are necessary in order to carry out the program.

(V) A description of the financial plan, the organization,

and the organizational capacity of the representative to carry

out the program.

(VI) An assessment of the time required in order to commence carrying out the program.

(ii) A redevelopment authority may not release to the public

any information submitted to the redevelopment authority under

clause (i)(V) without the consent of the representative of the homeless concerned unless such release is authorized under Federal law

and under the law of the State and communities in which the installation concerned is located.
Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT 796

(F)(i) The redevelopment authority for each installation covered by this paragraph shall prepare a redevelopment plan for the

installation. The redevelopment authority shall, in preparing the

plan, consider the interests in the use to assist the homeless of the

buildings and property at the installation that are expressed in the

notices submitted to the redevelopment authority under subparagraph (C).

(ii)(I) In connection with a redevelopment plan for an installation, a redevelopment authority and representatives of the homeless shall prepare legally binding agreements that provide for the

use to assist the homeless of buildings and property, resources, and

assistance on or off the installation. The implementation of such

agreements shall be contingent upon the decision regarding the disposal of the buildings and property covered by the agreements by

the Secretary of Defense under subparagraph (K) or (L).

(II) Agreements under this clause shall provide for the reversion to the redevelopment authority concerned, or to such other entity or entities as the agreements shall provide, of buildings and

property that are made available under this paragraph for use to

assist the homeless in the event that such buildings and property

cease being used for that purpose.

(iii) A redevelopment authority shall provide opportunity for

public comment on a redevelopment plan before submission of the

plan to the Secretary of Defense and the Secretary of Housing and

Urban Development under subparagraph (G).

(iv) A redevelopment authority shall complete preparation of a

redevelopment plan for an installation and submit the plan under

subparagraph (G) not later than 9 months after the date specified

by the redevelopment authority for the installation under subparagraph (D).

(G)(i) Upon completion of a redevelopment plan under subparagraph (F), a redevelopment authority shall submit an application

containing the plan to the Secretary of Defense and to the Secretary of Housing and Urban Development.

(ii) A redevelopment authority shall include in an application

under clause (i) the following:

(I) A copy of the redevelopment plan, including a summary

of any public comments on the plan received by the redevelopment authority under subparagraph (F)(iii).

(II) A copy of each notice of interest of use of buildings and

property to assist the homeless that was submitted to the redevelopment authority under subparagraph (C), together with a

description of the manner, if any, in which the plan addresses

the interest expressed in each such notice and, if the plan does

not address such an interest, an explanation why the plan does

not address the interest.

(III) A summary of the outreach undertaken by the redevelopment authority under subparagraph (C)(iii)(II) in preparing the plan.

(IV) A statement identifying the representatives of the

homeless and the homeless assistance planning boards, if any,

with which the redevelopment authority consulted in preparing

the plan, and the results of such consultations.

(V) An assessment of the manner in which the redevelopment plan balances the expressed needs of the homeless and
797 Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT

the need of the communities in the vicinity of the installation

for economic redevelopment and other development.

(VI) Copies of the agreements that the redevelopment authority proposes to enter into under subparagraph (F)(ii).

(H)(i) Not later than 60 days after receiving a redevelopment

plan under subparagraph (G), the Secretary of Housing and Urban

Development shall complete a review of the plan. The purpose of

the review is to determine whether the plan, with respect to the

expressed interest and requests of representatives of the

homeless—

(I) takes into consideration the size and nature of the

homeless population in the communities in the vicinity of the

installation, the availability of existing services in such communities to meet the needs of the homeless in such communities, and the suitability of the buildings and property covered

by the plan for the use and needs of the homeless in such communities;

(II) takes into consideration any economic impact of the

homeless assistance under the plan on the communities in the

vicinity of the installation;

(III) balances in an appropriate manner the needs of the

communities in the vicinity of the installation for economic redevelopment and other development with the needs of the

homeless in such communities;

(IV) was developed in consultation with representatives of

the homeless and the homeless assistance planning boards, if

any, in the communities in the vicinity of the installation; and

(V) specifies the manner in which buildings and property,

resources, and assistance on or off the installation will be made

available for homeless assistance purposes.

(ii) It is the sense of Congress that the Secretary of Housing

and Urban Development shall, in completing the review of a plan

under this subparagraph, take into consideration and be receptive

to the predominant views on the plan of the communities in the vicinity of the installation covered by the plan.

(iii) The Secretary of Housing and Urban Development may engage in negotiations and consultations with a redevelopment authority before or during the course of a review under clause (i) with

a view toward resolving any preliminary determination of the Secretary that a redevelopment plan does not meet a requirement set

forth in that clause. The redevelopment authority may modify the

redevelopment plan as a result of such negotiations and consultations.

(iv) Upon completion of a review of a redevelopment plan

under clause (i), the Secretary of Housing and Urban Development

shall notify the Secretary of Defense and the redevelopment authority concerned of the determination of the Secretary of Housing

and Urban Development under that clause.

(v) If the Secretary of Housing and Urban Development determines as a result of such a review that a redevelopment plan does

not meet the requirements set forth in clause (i), a notice under

clause (iv) shall include—

(I) an explanation of that determination; and

(II) a statement of the actions that the redevelopment authority must undertake in order to address that determination.
Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT 798

(I)(i) Upon receipt of a notice under subparagraph (H)(iv) of a

determination that a redevelopment plan does not meet a requirement set forth in subparagraph (H)(i), a redevelopment authority

shall have the opportunity to—

(I) revise the plan in order to address the determination;

and

(II) submit the revised plan to the Secretary of Defense

and the Secretary of Housing and Urban Development.

(ii) A redevelopment authority shall submit a revised plan

under this subparagraph to such Secretaries, if at all, not later

than 90 days after the date on which the redevelopment authority

receives the notice referred to in clause (i).

(J)(i) Not later than 30 days after receiving a revised redevelopment plan under subparagraph (I), the Secretary of Housing and

Urban Development shall review the revised plan and determine if

the plan meets the requirements set forth in subparagraph (H)(i).

(ii) The Secretary of Housing and Urban Development shall notify the Secretary of Defense and the redevelopment authority concerned of the determination of the Secretary of Housing and Urban

Development under this subparagraph.

(K)(i) Upon receipt of a notice under subparagraph (H)(iv) or

(J)(ii) of the determination of the Secretary of Housing and Urban

Development that a redevelopment plan for an installation meets

the requirements set forth in subparagraph (H)(i), the Secretary of

Defense shall dispose of the buildings and property at the installation.

(ii) For purposes of carrying out an environmental assessment

of the closure or realignment of an installation, the Secretary of

Defense shall treat the redevelopment plan for the installation (including the aspects of the plan providing for disposal to State or

local governments, representatives of the homeless, and other interested parties) as part of the proposed Federal action for the installation.

(iii) The Secretary of Defense shall dispose of buildings and

property under clause (i) in accordance with the record of decision

or other decision document prepared by the Secretary in accordance

with the National Environmental Policy Act of 1969 (42 U.S.C.

4321 et seq.). In preparing the record of decision or other decision

document, the Secretary shall give substantial deference to the redevelopment plan concerned.

(iv) The disposal under clause (i) of buildings and property to

assist the homeless shall be without consideration.

(v) In the case of a request for a conveyance under clause (i)

of buildings and property for public benefit under section 550 of

title 40, United States Code, or sections 47151 through 47153 of

title 49, United States Code, the sponsoring Federal agency shall

use the eligibility criteria set forth in such section or such subchapter (as the case may be) to determine the eligibility of the applicant and use proposed in the request for the public benefit conveyance. The determination of such eligibility should be made before submission of the redevelopment plan concerned under subparagraph (G).

(L)(i) If the Secretary of Housing and Urban Development determines under subparagraph (J) that a revised redevelopment

plan for an installation does not meet the requirements set forth
799 Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT

in subparagraph (H)(i), or if no revised plan is so submitted, that

Secretary shall—

(I) review the original redevelopment plan submitted to

that Secretary under subparagraph (G), including the notice or

notices of representatives of the homeless referred to in clause

(ii)(II) of that subparagraph;

(II) consult with the representatives referred to in subclause (I), if any, for purposes of evaluating the continuing interest of such representatives in the use of buildings or property at the installation to assist the homeless;

(III) request that each such representative submit to that

Secretary the items described in clause (ii); and

(IV) based on the actions of that Secretary under subclauses (I) and (II), and on any information obtained by that

Secretary as a result of such actions, indicate to the Secretary

of Defense the buildings and property at the installation that

meet the requirements set forth in subparagraph (H)(i).

(ii) The Secretary of Housing and Urban Development may request under clause (i)(III) that a representative of the homeless

submit to that Secretary the following:

(I) A description of the program of such representative to

assist the homeless.

(II) A description of the manner in which the buildings and

property that the representative proposes to use for such purpose will assist the homeless.

(III) Such information as that Secretary requires in order

to determine the financial capacity of the representative to

carry out the program and to ensure that the program will be

carried out in compliance with Federal environmental law and

Federal law against discrimination.

(IV) A certification that police services, fire protection services, and water and sewer services available in the communities in the vicinity of the installation concerned are adequate

for the program.

(iii) Not later than 90 days after the date of the receipt of a

revised plan for an installation under subparagraph (J), the Secretary of Housing and Urban Development shall—

(I) notify the Secretary of Defense and the redevelopment

authority concerned of the buildings and property at an installation under clause (i)(IV) that the Secretary of Housing and

Urban Development determines are suitable for use to assist

the homeless; and

(II) notify the Secretary of Defense of the extent to which

the revised plan meets the criteria set forth in subparagraph

(H)(i).

(iv)(I) Upon notice from the Secretary of Housing and Urban

Development with respect to an installation under clause (iii), the

Secretary of Defense shall dispose of buildings and property at the

installation in consultation with the Secretary of Housing and

Urban Development and the redevelopment authority concerned.

(II) For purposes of carrying out an environmental assessment

of the closure or realignment of an installation, the Secretary of

Defense shall treat the redevelopment plan submitted by the redevelopment authority for the installation (including the aspects of

the plan providing for disposal to State or local governments, rep-
Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT 800

resentatives of the homeless, and other interested parties) as part

of the proposed Federal action for the installation. The Secretary

of Defense shall incorporate the notification of the Secretary of

Housing and Urban Development under clause (iii)(I) as part of the

proposed Federal action for the installation only to the extent, if

any, that the Secretary of Defense considers such incorporation to

be appropriate and consistent with the best and highest use of the

installation as a whole, taking into consideration the redevelopment plan submitted by the redevelopment authority.

(III) The Secretary of Defense shall dispose of buildings and

property under subclause (I) in accordance with the record of decision or other decision document prepared by the Secretary in accordance with the National Environmental Policy Act of 1969 (42

U.S.C. 4321 et seq.). In preparing the record of decision or other

decision document, the Secretary shall give deference to the redevelopment plan submitted by the redevelopment authority for the

installation.

(IV) The disposal under subclause (I) of buildings and property

to assist the homeless shall be without consideration.

(V) In the case of a request for a conveyance under subclause

(I) of buildings and property for public benefit under section 550 of

title 40, United States Code, or sections 47151 through 47153 of

title 49, United States Code, the sponsoring Federal agency shall

use the eligibility criteria set forth in such section or such subchapter (as the case may be) to determine the eligibility of the applicant and use proposed in the request for the public benefit conveyance. The determination of such eligibility should be made before submission of the redevelopment plan concerned under subparagraph (G).

(M)(i) In the event of the disposal of buildings and property of

an installation pursuant to subparagraph (K) or (L), the redevelopment authority for the installation shall be responsible for the implementation of and compliance with agreements under the redevelopment plan described in that subparagraph for the installation.

(ii) If a building or property reverts to a redevelopment authority under such an agreement, the redevelopment authority shall

take appropriate actions to secure, to the maximum extent practicable, the utilization of the building or property by other homeless

representatives to assist the homeless. A redevelopment authority

may not be required to utilize the building or property to assist the

homeless.

(N) The Secretary of Defense may postpone or extend any

deadline provided for under this paragraph in the case of an installation covered by this paragraph for such period as the Secretary

considers appropriate if the Secretary determines that such postponement is in the interests of the communities affected by the closure or realignment of the installation. The Secretary shall make

such determinations in consultation with the redevelopment authority concerned and, in the case of deadlines provided for under

this paragraph with respect to the Secretary of Housing and Urban

Development, in consultation with the Secretary of Housing and

Urban Development.

(O) For purposes of this paragraph, the term ‘‘communities in

the vicinity of the installation’’, in the case of an installation,

means the communities that constitute the political jurisdictions
801 Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT

(other than the State in which the installation is located) that comprise the redevelopment authority for the installation.

(P) For purposes of this paragraph, the term ‘‘other interested

parties’’, in the case of an installation, includes any parties eligible

for the conveyance of property of the installation under section 550

of title 40, United States Code, or sections 47151 through 47153 of

title 49, United States Code, whether or not the parties assist the

homeless.

(8)(A) Subject to subparagraph (C), the Secretary may enter

into agreements (including contracts, cooperative agreements, or

other arrangements for reimbursement) with local governments for

the provision of police or security services, fire protection services,

airfield operation services, or other community services by such

governments at military installations to be closed under this part,

or at facilities not yet transferred or otherwise disposed of in the

case of installations closed under this part, if the Secretary determines that the provision of such services under such agreements

is in the best interests of the Department of Defense.

(B) The Secretary may exercise the authority provided under

this paragraph without regard to the provisions of chapter 146 of

title 10, United States Code.

(C) The Secretary may not exercise the authority under subparagraph (A) with respect to an installation earlier than 180 days

before the date on which the installation is to be closed.

(D) The Secretary shall include in a contract for services entered into with a local government under this paragraph a clause

that requires the use of professionals to furnish the services to the

extent that professionals are available in the area under the jurisdiction of such government.

(c) APPLICABILITY OF NATIONAL ENVIRONMENTAL POLICY ACT

OF 1969.—(1) The provisions of the National Environmental Policy

Act of 1969 (42 U.S.C. 4321 et seq.) shall not apply to the actions

of the President, the Commission, and, except as provided in paragraph (2), the Department of Defense in carrying out this part.

(2)(A) The provisions of the National Environmental Policy Act

of 1969 shall apply to actions of the Department of Defense under

this part (i) during the process of property disposal, and (ii) during

the process of relocating functions from a military installation

being closed or realigned to another military installation after the

receiving installation has been selected but before the functions are

relocated.

(B) In applying the provisions of the National Environmental

Policy Act of 1969 to the processes referred to in subparagraph (A),

the Secretary of Defense and the Secretary of the military departments concerned shall not have to consider—

(i) the need for closing or realigning the military installation which has been recommended for closure or realignment

by the Commission;

(ii) the need for transferring functions to any military installation which has been selected as the receiving installation;

or

(iii) military installations alternative to those recommended or selected.

(3) A civil action for judicial review, with respect to any requirement of the National Environmental Policy Act of 1969 to the
Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT 802

extent such Act is applicable under paragraph (2), of any act or

failure to act by the Department of Defense during the closing, realigning, or relocating of functions referred to in clauses (i) and (ii)

of paragraph (2)(A), may not be brought more than 60 days after

the date of such act or failure to act.

(d) WAIVER.—The Secretary of Defense may close or realign

military installations under this part without regard to—

(1) any provision of law restricting the use of funds for

closing or realigning military installations included in any appropriations or authorization Act; and

(2) sections 2662 and 2687 of title 10, United States Code.

(e) TRANSFER AUTHORITY IN CONNECTION WITH PAYMENT OF

ENVIRONMENTAL REMEDIATION COSTS.—(1)(A) Subject to paragraph

(2) of this subsection and section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42

U.S.C. 9620(h)), the Secretary may enter into an agreement to

transfer by deed real property or facilities referred to in subparagraph (B) with any person who agrees to perform all environmental

restoration, waste management, and environmental compliance activities that are required for the property or facilities under Federal and State laws, administrative decisions, agreements (including schedules and milestones), and concurrences.

(B) The real property and facilities referred to in subparagraph

(A) are the real property and facilities located at an installation

closed or to be closed, or realigned or to be realigned, under this

part that are available exclusively for the use, or expression of an

interest in a use, of a redevelopment authority under subsection

(b)(6)(F) during the period provided for that use, or expression of

interest in use, under that subsection. The real property and facilities referred to in subparagraph (A) are also the real property and

facilities located at an installation approved for closure or realignment under this part after 2001 that are available for purposes

other than to assist the homeless.

(C) The Secretary may require any additional terms and conditions in connection with an agreement authorized by subparagraph

(A) as the Secretary considers appropriate to protect the interests

of the United States.

(2) A transfer of real property or facilities may be made under

paragraph (1) only if the Secretary certifies to Congress that—

(A) the costs of all environmental restoration, waste management, and environmental compliance activities otherwise to

be paid by the Secretary with respect to the property or facilities are equal to or greater than the fair market value of the

property or facilities to be transferred, as determined by the

Secretary; or

(B) if such costs are lower than the fair market value of

the property or facilities, the recipient of the property or facilities agrees to pay the difference between the fair market value

and such costs.

(3) In the case of property or facilities covered by a certification

under paragraph (2)(A), the Secretary may pay the recipient of

such property or facilities an amount equal to the lesser of—

(A) the amount by which the costs incurred by the recipient of such property or facilities for all environmental restoration, waste, management, and environmental compliance ac-
803 Sec. 2905 1990 BASE REALIGNMENT AND CLOSURE ACT

tivities with respect to such property or facilities exceed the

fair market value of such property or facilities as specified in

such certification; or

(B) the amount by which the costs (as determined by the

Secretary) that would otherwise have been incurred by the Secretary for such restoration, management, and activities with

respect to such property or facilities exceed the fair market

value of such property or facilities as so specified.

(4) As part of an agreement under paragraph (1), the Secretary

shall disclose to the person to whom the property or facilities will

be transferred any information of the Secretary regarding the environmental restoration, waste management, and environmental

compliance activities described in paragraph (1) that relate to the

property or facilities. The Secretary shall provide such information

before entering into the agreement.

(5) Nothing in this subsection shall be construed to modify,

alter, or amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) or the

Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).

(6) Section 330 of the National Defense Authorization Act for

Fiscal Year 1993 (Public Law 102–484; 10 U.S.C. 2687 note) shall

not apply to any transfer under this subsection to persons or entities described in subsection (a)(2) of such section 330, except in the

case of releases or threatened releases not disclosed pursuant to

paragraph (4).

(f) TRANSFER AUTHORITY IN CONNECTION WITH CONSTRUCTION

OR PROVISION OF MILITARY FAMILY HOUSING.—øRepealed by section 2805(d) of the National Defense Authorization Act for Fiscal

Year 2004 (Public Law 108–136; 117 Stat. 1721).¿

(g) ACQUISITION OF MANUFACTURED HOUSING.—(1) In closing

or realigning any military installation under this part, the Secretary may purchase any or all right, title, and interest of a member of the Armed Forces and any spouse of the member in manufactured housing located at a manufactured housing park established at an installation closed or realigned under this part, or

make a payment to the member to relocate the manufactured housing to a suitable new site, if the Secretary determines that—

(A) it is in the best interests of the Federal Government

to eliminate or relocate the manufactured housing park; and

(B) the elimination or relocation of the manufactured housing park would result in an unreasonable financial hardship to

the owners of the manufactured housing.

(2) Any payment made under this subsection shall not exceed

90 percent of the purchase price of the manufactured housing, as

paid by the member or any spouse of the member, plus the cost of

any permanent improvements subsequently made to the manufactured housing by the member or spouse of the member.

(3) The Secretary shall dispose of manufactured housing acquired under this subsection through resale, donation, trade or otherwise within one year of acquisition.

SEC. 2906. DEPARTMENT OF DEFENSE BASE CLOSURE ACCOUNT 1990

(a) IN GENERAL.—(1) There is hereby established on the books

of the Treasury an account to be known as the ‘‘Department of De-
Sec. 2906 1990 BASE REALIGNMENT AND CLOSURE ACT 804

fense Base Closure Account 1990’’ which shall be administered by

the Secretary as a single account.

(2) There shall be deposited into the Account—

(A) funds authorized for and appropriated to the Account;

(B) any funds that the Secretary may, subject to approval

in an appropriation Act, transfer to the Account from funds appropriated to the Department of Defense for any purpose, except that such funds may be transferred only after the date on

which the Secretary transmits written notice of, and justification for, such transfer to the congressional defense committees;

(C) except as provided in subsection (d), proceeds received

from the lease, transfer, or disposal of any property at a military installation closed or realigned under this part the date of

approval of closure or realignment of which is before January

1, 2005; and

(D) proceeds received after September 30, 1995, from the

lease, transfer, or disposal of any property at a military installation closed or realigned under title II of the Defense Authorization Amendments and Base Closure and Realignment Act

(Public Law 100–526; 10 U.S.C. 2687 note).

(3) The Account shall be closed at the time and in the manner

provided for appropriation accounts under section 1555 of title 31,

United States Code. Unobligated funds which remain in the Account upon closure shall be held by the Secretary of the Treasury

until transferred by law after the congressional defense committees

receive the final report transmitted under subsection (c)(2).

(b) USE OF FUNDS.—(1) The Secretary may use the funds in the

Account only for the purposes described in section 2905 with respect to military installations the date of approval of closure or realignment of which is before January 1, 2005, or, after September

30, 1995, for environmental restoration and property management

and disposal at installations closed or realigned under title II of the

Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note). After July 13,

2001, the Account shall be the sole source of Federal funds for environmental restoration, property management, and other caretaker

costs associated with any real property at military installations

closed or realigned under this part or such title II.

(2) When a decision is made to use funds in the Account to

carry out a construction project under section 2905(a) and the cost

of the project will exceed the maximum amount authorized by law

for a minor military construction project, the Secretary shall notify

in writing the congressional defense committees of the nature of,

and justification for, the project and the amount of expenditures for

such project. Any such construction project may be carried out

without regard to section 2802(a) of title 10, United States Code.

(c) REPORTS.—(1)(A) No later than 60 days after the end of

each fiscal year in which the Secretary carries out activities under

this part, the Secretary shall transmit a report to the congressional

defense committees of the amount and nature of the deposits into,

and the expenditures from, the Account during such fiscal year and

of the amount and nature of other expenditures made pursuant to

section 2905(a) during such fiscal year.

(B) The report for a fiscal year shall include the following:
805 Sec. 2906 1990 BASE REALIGNMENT AND CLOSURE ACT

(i) The obligations and expenditures from the Account during the fiscal year, identified by subaccount, for each military

department and Defense Agency.

(ii) The fiscal year in which appropriations for such expenditures were made and the fiscal year in which funds were

obligated for such expenditures.

(iii) Each military construction project for which such obligations and expenditures were made, identified by installation

and project title.

(iv) A description and explanation of the extent, if any, to

which expenditures for military construction projects for the

fiscal year differed from proposals for projects and funding levels that were included in the justification transmitted to Congress under section 2907(1), or otherwise, for the funding proposals for the Account for such fiscal year, including an explanation of—

(I) any failure to carry out military construction

projects that were so proposed; and

(II) any expenditures for military construction projects

that were not so proposed.

(2) No later than 60 days after the termination of the authority

of the Secretary to carry out a closure or realignment under this

part with respect to military installations the date of approval of

closure or realignment of which is before January 1, 2005, and no

later than 60 days after the closure of the Account under subsection (a)(3), the Secretary shall transmit to the congressional defense committees a report containing an accounting of—

(A) all the funds deposited into and expended from the Account or otherwise expended under this part with respect to

such installations; and

(B) any amount remaining in the Account.

(d) DISPOSAL OR TRANSFER OF COMMISSARY STORES AND PROPERTY PURCHASED WITH NONAPPROPRIATED FUNDS.—(1) If any real

property or facility acquired, constructed, or improved (in whole or

in part) with commissary store funds or nonappropriated funds is

transferred or disposed of in connection with the closure or realignment of a military installation under this part the date of approval

of closure or realignment of which is before January 1, 2005, a portion of the proceeds of the transfer or other disposal of property on

that installation shall be deposited in the reserve account established under section 204(b)(7)(C) of the Defense Authorization

Amendments and Base Closure and Realignment Act (10 U.S.C.

2687 note).

(2) The amount so deposited shall be equal to the depreciated

value of the investment made with such funds in the acquisition,

construction, or improvement of that particular real property or facility. The depreciated value of the investment shall be computed

in accordance with regulations prescribed by the Secretary of Defense.

(3) Subject to the limitation contained in section

204(b)(7)(C)(iii) of the Defense Authorization Amendments and

Base Closure and Realignment Act, amounts in the reserve account

are hereby made available to the Secretary, without appropriation

and until expended, for the purpose of acquiring, constructing, and

improving—
Sec. 2906A 1990 BASE REALIGNMENT AND CLOSURE ACT 806

(A) commissary stores; and

(B) real property and facilities for nonappropriated fund

instrumentalities.

(4) As used in this subsection:

(A) The term ‘‘commissary store funds’’ means funds received from the adjustment of, or surcharge on, selling prices

at commissary stores fixed under section 2685 of title 10,

United States Code.

(B) The term ‘‘nonappropriated funds’’ means funds received from a nonappropriated fund instrumentality.

(C) The term ‘‘nonappropriated fund instrumentality’’

means an instrumentality of the United States under the jurisdiction of the Armed Forces (including the Army and Air Force

Exchange Service, the Navy Resale and Services Support Office, and the Marine Corps exchanges) which is conducted for

the comfort, pleasure, contentment, or physical or mental improvement of members of the Armed Forces.

(e) ACCOUNT EXCLUSIVE SOURCE OF FUNDS FOR ENVIRONMENTAL RESTORATION PROJECTS.—Except as provided in section

2906A(e) with respect to funds in the Department of Defense Base

Closure Account 2005 under section 2906A and except for funds deposited into the Account under subsection (a), funds appropriated

to the Department of Defense may not be used for purposes described in section 2905(a)(1)(C). The prohibition in this subsection

shall expire upon the closure of the Account under subsection

(a)(3).

SEC. 2906A. DEPARTMENT OF DEFENSE BASE CLOSURE ACCOUNT

2005.

(a) IN GENERAL.—(1) If the Secretary makes the certifications

required under section 2912(b), there shall be established on the

books of the Treasury an account to be known as the ‘‘Department

of Defense Base Closure Account 2005’’ (in this section referred to

as the ‘‘Account’’). The Account shall be administered by the Secretary as a single account.

(2) There shall be deposited into the Account—

(A) funds authorized for and appropriated to the Account;

(B) any funds that the Secretary may, subject to approval

in an appropriation Act, transfer to the Account from funds appropriated to the Department of Defense for any purpose, except that such funds may be transferred only after the date on

which the Secretary transmits written notice of, and justification for, such transfer to the congressional defense committees;

and

(C) except as provided in subsection (d), proceeds received

from the lease, transfer, or disposal of any property at a military installation that is closed or realigned under this part

pursuant to a closure or realignment the date of approval of

which is after January 1, 2005.

(3) The Account shall be closed at the time and in the manner

provided for appropriation accounts under section 1555 of title 31,

United States Code. Unobligated funds which remain in the Account upon closure shall be held by the Secretary of the Treasury

until transferred by law after the congressional defense committees

receive the final report transmitted under subsection (c)(2).
807 Sec. 2906A 1990 BASE REALIGNMENT AND CLOSURE ACT

(b) USE OF FUNDS.—(1) The Secretary may use the funds in the

Account only for the purposes described in section 2905 with respect to military installations the date of approval of closure or realignment of which is after January 1, 2005.

(2) When a decision is made to use funds in the Account to

carry out a construction project under section 2905(a) and the cost

of the project will exceed the maximum amount authorized by law

for a minor military construction project, the Secretary shall notify

in writing the congressional defense committees of the nature of,

and justification for, the project and the amount of expenditures for

such project. Any such construction project may be carried out

without regard to section 2802(a) of title 10, United States Code.

(c) REPORTS.—(1)(A) No later than 60 days after the end of

each fiscal year in which the Secretary carries out activities under

this part using amounts in the Account, the Secretary shall transmit a report to the congressional defense committees of the amount

and nature of the deposits into, and the expenditures from, the Account during such fiscal year and of the amount and nature of

other expenditures made pursuant to section 2905(a) during such

fiscal year.

(B) The report for a fiscal year shall include the following:

(i) The obligations and expenditures from the Account during the fiscal year, identified by subaccount, for each military

department and Defense Agency.

(ii) The fiscal year in which appropriations for such expenditures were made and the fiscal year in which funds were

obligated for such expenditures.

(iii) Each military construction project for which such obligations and expenditures were made, identified by installation

and project title.

(iv) A description and explanation of the extent, if any, to

which expenditures for military construction projects for the

fiscal year differed from proposals for projects and funding levels that were included in the justification transmitted to Congress under section 2907(1), or otherwise, for the funding proposals for the Account for such fiscal year, including an explanation of—

(I) any failure to carry out military construction

projects that were so proposed; and

(II) any expenditures for military construction projects

that were not so proposed.

(2) No later than 60 days after the termination of the authority

of the Secretary to carry out a closure or realignment under this

part with respect to military installations the date of approval of

closure or realignment of which is after January 1, 2005, and no

later than 60 days after the closure of the Account under subsection (a)(3), the Secretary shall transmit to the congressional defense committees a report containing an accounting of—

(A) all the funds deposited into and expended from the Account or otherwise expended under this part with respect to

such installations; and

(B) any amount remaining in the Account.

(d) DISPOSAL OR TRANSFER OF COMMISSARY STORES AND PROPERTY PURCHASED WITH NONAPPROPRIATED FUNDS.—(1) If any real

property or facility acquired, constructed, or improved (in whole or
Sec. 2907 1990 BASE REALIGNMENT AND CLOSURE ACT 808

in part) with commissary store funds or nonappropriated funds is

transferred or disposed of in connection with the closure or realignment of a military installation under this part the date of approval

of closure or realignment of which is after January 1, 2005, a portion of the proceeds of the transfer or other disposal of property on

that installation shall be deposited in the reserve account established under section 204(b)(7)(C) of the Defense Authorization

Amendments and Base Closure and Realignment Act (10 U.S.C.

2687 note).

(2) The amount so deposited shall be equal to the depreciated

value of the investment made with such funds in the acquisition,

construction, or improvement of that particular real property or facility. The depreciated value of the investment shall be computed

in accordance with regulations prescribed by the Secretary.

(3) The Secretary may use amounts in the reserve account,

without further appropriation, for the purpose of acquiring, constructing, and improving—

(A) commissary stores; and

(B) real property and facilities for nonappropriated fund

instrumentalities.

(4) In this subsection, the terms ‘‘commissary store funds’’,

‘‘nonappropriated funds’’, and ‘‘nonappropriated fund instrumentality’’ shall have the meaning given those terms in section

2906(d)(4).

(e) ACCOUNT EXCLUSIVE SOURCE OF FUNDS FOR ENVIRONMENTAL RESTORATION PROJECTS.—Except as provided in section

2906(e) with respect to funds in the Department of Defense Base

Closure Account 1990 under section 2906 and except for funds deposited into the Account under subsection (a), funds appropriated

to the Department of Defense may not be used for purposes described in section 2905(a)(1)(C). The prohibition in this subsection

shall expire upon the closure of the Account under subsection

(a)(3).

SEC. 2907. REPORTS

As part of the budget request for fiscal year 1993 and for each

fiscal year thereafter for the Department of Defense, the Secretary

shall transmit to the congressional defense committees of

Congress—

(1) a schedule of the closure and realignment actions to be

carried out under this part in the fiscal year for which the request is made and an estimate of the total expenditures required and cost savings to be achieved by each such closure

and realignment and of the time period in which these savings

are to be achieved in each case, together with the Secretary’s

assessment of the environmental effects of such actions; and

(2) a description of the military installations, including

those under construction and those planned for construction, to

which functions are to be transferred as a result of such closures and realignments, together with the Secretary’s assessment of the environmental effects of such transfers.

SEC. 2908. CONGRESSIONAL CONSIDERATION OF COMMISSION REPORT

(a) TERMS OF THE RESOLUTION.—For purposes of section

2904(b), the term ‘‘joint resolution’’ means only a joint resolution
809 Sec. 2908 1990 BASE REALIGNMENT AND CLOSURE ACT

which is introduced within the 10-day period beginning on the date

on which the President transmits the report to the Congress under

section 2903(e), and—

(1) which does not have a preamble;

(2) the matter after the resolving clause of which is as follows: ‘‘That Congress disapproves the recommendations of the

Defense Base Closure and Realignment Commission as submitted by the President on ———’’, the blank space being filled

in with the appropriate date; and

(3) the title of which is as follows: ‘‘Joint resolution disapproving the recommendations of the Defense Base Closure

and Realignment Commission.’’.

(b) REFERRAL.—A resolution described in subsection (a) that is

introduced in the House of Representatives shall be referred to the

Committee on Armed Services of the House of Representatives. A

resolution described in subsection (a) introduced in the Senate

shall be referred to the Committee on Armed Services of the Senate.

(c) DISCHARGE.—If the committee to which a resolution described in subsection (a) is referred has not reported such resolution (or an identical resolution) by the end of the 20-day period beginning on the date on which the President transmits the report

to the Congress under section 2903(e), such committee shall be, at

the end of such period, discharged from further consideration of

such resolution, and such resolution shall be placed on the appropriate calendar of the House involved.

(d) CONSIDERATION.—(1) On or after the third day after the

date on which the committee to which such a resolution is referred

has reported, or has been discharged (under subsection (c)) from

further consideration of, such a resolution, it is in order (even

though a previous motion to the same effect has been disagreed to)

for any Member of the respective House to move to proceed to the

consideration of the resolution. A Member may make the motion

only on the day after the calendar day on which the Member announces to the House concerned the Member’s intention to make

the motion, except that, in the case of the House of Representatives, the motion may be made without such prior announcement

if the motion is made by direction of the committee to which the

resolution was referred. All points of order against the resolution

(and against consideration of the resolution) are waived. The motion is highly privileged in the House of Representatives and is

privileged in the Senate and is not debatable. The motion is not

subject to amendment, or to a motion to postpone, or to a motion

to proceed to the consideration of other business. A motion to reconsider the vote by which the motion is agreed to or disagreed to

shall not be in order. If a motion to proceed to the consideration

of the resolution is agreed to, the respective House shall immediately proceed to consideration of the joint resolution without intervening motion, order, or other business, and the resolution shall

remain the unfinished business of the respective House until disposed of.

(2) Debate on the resolution, and on all debatable motions and

appeals in connection therewith, shall be limited to not more than

2 hours, which shall be divided equally between those favoring and

those opposing the resolution. An amendment to the resolution is
Sec. 2909 1990 BASE REALIGNMENT AND CLOSURE ACT 810

not in order. A motion further to limit debate is in order and not

debatable. A motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the resolution

is not in order. A motion to reconsider the vote by which the resolution is agreed to or disagreed to is not in order.

(3) Immediately following the conclusion of the debate on a resolution described in subsection (a) and a single quorum call at the

conclusion of the debate if requested in accordance with the rules

of the appropriate House, the vote on final passage of the resolution shall occur.

(4) Appeals from the decisions of the Chair relating to the application of the rules of the Senate or the House of Representatives,

as the case may be, to the procedure relating to a resolution described in subsection (a) shall be decided without debate.

(e) CONSIDERATION BY OTHER HOUSE.—(1) If, before the passage by one House of a resolution of that House described in subsection (a), that House receives from the other House a resolution

described in subsection (a), then the following procedures shall

apply:

(A) The resolution of the other House shall not be referred

to a committee and may not be considered in the House receiving it except in the case of final passage as provided in subparagraph (B)(ii).

(B) With respect to a resolution described in subsection (a)

of the House receiving the resolution—

(i) the procedure in that House shall be the same as

if no resolution had been received from the other House;

but

(ii) the vote on final passage shall be on the resolution

of the other House.

(2) Upon disposition of the resolution received from the other

House, it shall no longer be in order to consider the resolution that

originated in the receiving House.

(f) RULES OF THE SENATE AND HOUSE.—This section is enacted

by Congress—

(1) as an exercise of the rulemaking power of the Senate

and House of Representatives, respectively, and as such it is

deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in

that House in the case of a resolution described in subsection

(a), and it supersedes other rules only to the extent that it is

inconsistent with such rules; and

(2) with full recognition of the constitutional right of either

House to change the rules (so far as relating to the procedure

of that House) at any time, in the same manner, and to the

same extent as in the case of any other rule of that House.

SEC. 2909. RESTRICTION ON OTHER BASE CLOSURE AUTHORITY

(a) IN GENERAL.—Except as provided in subsection (c), during

the period beginning on November 5, 1990, and ending on April 15,

2006, this part shall be the exclusive authority for selecting for closure or realignment, or for carrying out any closure or realignment

of, a military installation inside the United States.

(b) RESTRICTION.—Except as provided in subsection (c), none of

the funds available to the Department of Defense may be used,
811 Sec. 2910 1990 BASE REALIGNMENT AND CLOSURE ACT

other than under this part, during the period specified in subsection (a)—

(1) to identify, through any transmittal to the Congress or

through any other public announcement or notification, any

military installation inside the United States as an installation

to be closed or realigned or as an installation under consideration for closure or realignment; or

(2) to carry out any closure or realignment of a military installation inside the United States.

(c) EXCEPTION.—Nothing in this part affects the authority of

the Secretary to carry out—

(1) closures and realignments under title II of Public Law

100–526; and

(2) closures and realignments to which section 2687 of title

10, United States Code, is not applicable, including closures

and realignments carried out for reasons of national security or

a military emergency referred to in subsection (c) of such section.

SEC. 2910. DEFINITIONS

As used in this part:

(1) The term ‘‘Account’’ means the Department of Defense

Base Closure Account 1990 established by section 2906(a)(1).

(2) The term ‘‘congressional defense committees’’ means

the Committee on Armed Services and the Committee on Appropriations of the Senate and the Committee on Armed Services and the Committee on Appropriations of the House of Representatives.

(3) The term ‘‘Commission’’ means the Commission established by section 2902.

(4) The term ‘‘military installation’’ means a base, camp,

post, station, yard, center, homeport facility for any ship, or

other activity under the jurisdiction of the Department of Defense, including any leased facility. Such term does not include

any facility used primarily for civil works, rivers and harbors

projects, flood control, or other projects not under the primary

jurisdiction or control of the Department of Defense.

(5) The term ‘‘realignment’’ includes any action which both

reduces and relocates functions and civilian personnel positions

but does not include a reduction in force resulting from workload adjustments, reduced personnel or funding levels, or skill

imbalances.

(6) The term ‘‘Secretary’’ means the Secretary of Defense.

(7) The term ‘‘United States’’ means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, Guam,

the Virgin Islands, American Samoa, and any other commonwealth, territory, or possession of the United States.

(8) The term ‘‘date of approval’’, with respect to a closure

or realignment of an installation, means the date on which the

authority of Congress to disapprove a recommendation of closure or realignment, as the case may be, of such installation

under this part expires.

(9) The term ‘‘redevelopment authority’’, in the case of an

installation to be closed or realigned under this part, means

any entity (including an entity established by a State or local
Sec. 2912 1990 BASE REALIGNMENT AND CLOSURE ACT 812

government) recognized by the Secretary of Defense as the entity responsible for developing the redevelopment plan with respect to the installation or for directing the implementation of

such plan.

(10) The term ‘‘redevelopment plan’’ in the case of an installation to be closed or realigned under this part, means a

plan that—

(A) is agreed to by the local redevelopment authority

with respect to the installation; and

(B) provides for the reuse or redevelopment of the real

property and personal property of the installation that is

available for such reuse and redevelopment as a result of

the closure or realignment of the installation.

(11) The term ‘‘representative of the homeless’’ has the

meaning given such term in section 501(i)(4) of the McKinneyVento Homeless Assistance Act (42 U.S.C. 11411(i)(4)).

SEC. 2911. CLARIFYING AMENDMENT

[Omitted]

SEC. 2912. 2005 ROUND OF REALIGNMENTS AND CLOSURES OF MILITARY INSTALLATIONS.

(a) FORCE-STRUCTURE PLAN AND INFRASTRUCTURE INVENTORY.—

(1) PREPARATION AND SUBMISSION.—As part of the budget

justification documents submitted to Congress in support of the

budget for the Department of Defense for fiscal year 2005, the

Secretary shall include the following:

(A) A force-structure plan for the Armed Forces based

on an assessment by the Secretary of the probable threats

to the national security during the 20-year period beginning with fiscal year 2005, the probable end-strength levels and major military force units (including land force divisions, carrier and other major combatant vessels, air

wings, and other comparable units) needed to meet these

threats, and the anticipated levels of funding that will be

available for national defense purposes during such period.

(B) A comprehensive inventory of military installations world-wide for each military department, with specifications of the number and type of facilities in the active

and reserve forces of each military department.

(2) RELATIONSHIP OF PLAN AND INVENTORY.—Using the

force-structure plan and infrastructure inventory prepared

under paragraph (1), the Secretary shall prepare (and include

as part of the submission of such plan and inventory) the following:

(A) A description of the infrastructure necessary to

support the force structure described in the force-structure

plan.

(B) A discussion of categories of excess infrastructure

and infrastructure capacity.

(C) An economic analysis of the effect of the closure or

realignment of military installations to reduce excess infrastructure.
813 Sec. 2912 1990 BASE REALIGNMENT AND CLOSURE ACT

(3) SPECIAL CONSIDERATIONS.—In determining the level of

necessary versus excess infrastructure under paragraph (2),

the Secretary shall consider the following:

(A) The anticipated continuing need for and availability of military installations outside the United States,

taking into account current restrictions on the use of military installations outside the United States and the potential for future prohibitions or restrictions on the use of

such military installations.

(B) Any efficiencies that may be gained from joint tenancy by more than one branch of the Armed Forces at a

military installation.

(4) REVISION.—The Secretary may revise the force-structure plan and infrastructure inventory. If the Secretary makes

such a revision, the Secretary shall submit the revised plan or

inventory to Congress as part of the budget justification documents submitted to Congress for fiscal year 2006.

(b) CERTIFICATION OF NEED FOR FURTHER CLOSURES AND RE- ALIGNMENTS.— (1) CERTIFICATION REQUIRED.—On the basis of the forcestructure plan and infrastructure inventory prepared under

subsection (a) and the descriptions and economic analysis prepared under such subsection, the Secretary shall include as

part of the submission of the plan and inventory—

(A) a certification regarding whether the need exists

for the closure or realignment of additional military installations; and

(B) if such need exists, a certification that the additional round of closures and realignments would result in

annual net savings for each of the military departments

beginning not later than fiscal year 2011.

(2) EFFECT OF FAILURE TO CERTIFY.—If the Secretary does

not include the certifications referred to in paragraph (1), the

process by which military installations may be selected for closure or realignment under this part in 2005 shall be terminated.

(c) COMPTROLLER GENERAL EVALUATION.—

(1) EVALUATION REQUIRED.—If the certification is provided

under subsection (b), the Comptroller General shall prepare an

evaluation of the following:

(A) The force-structure plan and infrastructure inventory prepared under subsection (a) and the final selection

criteria prepared under section 2913, including an evaluation of the accuracy and analytical sufficiency of such plan,

inventory, and criteria.

(B) The need for the closure or realignment of additional military installations.

(2) SUBMISSION.—The Comptroller General shall submit

the evaluation to Congress not later than 60 days after the

date on which the force-structure plan and infrastructure inventory are submitted to Congress.

(d) AUTHORIZATION OF ADDITIONAL ROUND; COMMISSION.—

(1) APPOINTMENT OF COMMISSION.—Subject to the certifications required under subsection (b), the President may commence an additional round for the selection of military installa-
Sec. 2913 1990 BASE REALIGNMENT AND CLOSURE ACT 814

tions for closure and realignment under this part in 2005 by

transmitting to the Senate, not later than March 15, 2005,

nominations pursuant to section 2902(c) for the appointment of

new members to the Defense Base Closure and Realignment

Commission.

(2) EFFECT OF FAILURE TO NOMINATE.—If the President

does not transmit to the Senate the nominations for the Commission by March 15, 2005, the process by which military installations may be selected for closure or realignment under

this part in 2005 shall be terminated.

(3) MEMBERS.—Notwithstanding section 2902(c)(1), the

Commission appointed under the authority of this subsection

shall consist of nine members.

(4) TERMS; MEETINGS; TERMINATION.—Notwithstanding

subsections (d), (e)(1), and (l) of section 2902, the Commission

appointed under the authority of this subsection shall meet

during calendar year 2005 and shall terminate on April 15,

2006.

(5) FUNDING.—If no funds are appropriated to the Commission by the end of the second session of the 108th Congress for

the activities of the Commission in 2005, the Secretary may

transfer to the Commission for purposes of its activities under

this part in that year such funds as the Commission may require to carry out such activities. The Secretary may transfer

funds under the preceding sentence from any funds available

to the Secretary. Funds so transferred shall remain available

to the Commission for such purposes until expended.

SEC. 2913. SELECTION CRITERIA FOR 2005 ROUND.

(a) PREPARATION OF PROPOSED SELECTION CRITERIA.—

(1) IN GENERAL.—Not later than December 31, 2003, the

Secretary shall publish in the Federal Register and transmit to

the congressional defense committees the criteria proposed to

be used by the Secretary in making recommendations for the

closure or realignment of military installations inside the

United States under this part in 2005.

(2) PUBLIC COMMENT.—The Secretary shall provide an opportunity for public comment on the proposed criteria for a period of at least 30 days and shall include notice of that opportunity in the publication required under this subsection.

(b) MILITARY VALUE AS PRIMARY CONSIDERATION.—The selection criteria prepared by the Secretary shall ensure that military

value is the primary consideration in the making of recommendations for the closure or realignment of military installations under

this part in 2005. Military value shall include at a minimum the

following:

(1) Preservation of training areas suitable for maneuver by

ground, naval, or air forces to guarantee future availability of

such areas to ensure the readiness of the Armed Forces.

(2) Preservation of military installations in the United

States as staging areas for the use of the Armed Forces in

homeland defense missions.

(3) Preservation of military installations throughout a diversity of climate and terrain areas in the United States for

training purposes.
815 Sec. 2914 1990 BASE REALIGNMENT AND CLOSURE ACT

(4) The impact on joint warfighting, training, and readiness.

(5) Contingency, mobilization, and future total force requirements at both existing and potential receiving locations to

support operations and training.

(c) SPECIAL CONSIDERATIONS.—The selection criteria for military installations shall also address at a minimum the following:

(1) The extent and timing of potential costs and savings,

including the number of years, beginning with the date of completion of the closure or realignment, for the savings to exceed

the costs.

(2) The economic impact on existing communities in the vicinity of military installations.

(3) The ability of both existing and potential receiving communities’ infrastructure to support forces, missions, and personnel.

(4) The impact of costs related to potential environmental

restoration, waste management, and environmental compliance

activities.

(d) EFFECT ON DEPARTMENT AND OTHER AGENCY COSTS.—Any

selection criteria proposed by the Secretary relating to the cost savings or return on investment from the proposed closure or realignment of military installations shall take into account the effect of

the proposed closure or realignment on the costs of any other activity of the Department of Defense or any other Federal agency that

may be required to assume responsibility for activities at the military installations.

(e) FINAL SELECTION CRITERIA.—Not later than February 16,

2004, the Secretary shall publish in the Federal Register and

transmit to the congressional defense committees the final criteria

to be used in making recommendations for the closure or realignment of military installations inside the United States under this

part in 2005. Such criteria shall be the final criteria to be used,

along with the force-structure plan and infrastructure inventory referred to in section 2912, in making such recommendations unless

disapproved by an Act of Congress enacted on or before March 15,

2004.

(f) RELATION TO CRITERIA FOR EARLIER ROUNDS.—Section

2903(b), and the selection criteria prepared under such section,

shall not apply with respect to the process of making recommendations for the closure or realignment of military installations in

2005.

SEC. 2914. SPECIAL PROCEDURES FOR MAKING RECOMMENDATIONS

FOR REALIGNMENTS AND CLOSURES FOR 2005 ROUND;

COMMISSION CONSIDERATION OF RECOMMENDATIONS.

(a) RECOMMENDATIONS REGARDING CLOSURE OR REALIGNMENT

OF MILITARY INSTALLATIONS.—If the Secretary makes the certifications required under section 2912(b), the Secretary shall publish

in the Federal Register and transmit to the congressional defense

committees and the Commission, not later than May 16, 2005, a

list of the military installations inside the United States that the

Secretary recommends for closure or realignment on the basis of

the force-structure plan and infrastructure inventory prepared by

the Secretary under section 2912 and the final selection criteria

prepared by the Secretary under section 2913.
Sec. 2914 1990 BASE REALIGNMENT AND CLOSURE ACT 816

(b) PREPARATION OF RECOMMENDATIONS.— (1) IN GENERAL.—The Secretary shall comply with paragraphs (2) through (6) of section 2903(c) in preparing and

transmitting the recommendations under this section. However, paragraph (6) of section 2903(c) relating to submission of

information to Congress shall be deemed to require such submission within 48 hours.

(2) CONSIDERATION OF LOCAL GOVERNMENT VIEWS.—(A) In

making recommendations to the Commission in 2005, the Secretary shall consider any notice received from a local government in the vicinity of a military installation that the government would approve of the closure or realignment of the installation.

(B) Notwithstanding the requirement in subparagraph (A),

the Secretary shall make the recommendations referred to in

that subparagraph based on the force-structure plan, infrastructure inventory, and final selection criteria otherwise applicable to such recommendations.

(C) The recommendations shall include a statement of the

result of the consideration of any notice described in subparagraph (A) that is received with respect to a military installation covered by such recommendations. The statement shall set

forth the reasons for the result.

(c) RECOMMENDATIONS TO RETAIN BASES IN INACTIVE STA- TUS.—In making recommendations for the closure or realignment

of military installations, the Secretary may recommend that an installation be placed in an inactive status if the Secretary determines that—

(1) the installation may be needed in the future for national security purposes; or

(2) retention of the installation is otherwise in the interest

of the United States.

(d) COMMISSION REVIEW AND RECOMMENDATIONS.—

(1) IN GENERAL.—Except as provided in this subsection,

section 2903(d) shall apply to the consideration by the Commission of the recommendations transmitted by the Secretary in

2005. The Commission’s report containing its findings and conclusions, based on a review and analysis of the Secretary’s recommendations, shall be transmitted to the President not later

than September 8, 2005.

(2) AVAILABILITY OF RECOMMENDATIONS TO CONGRESS.—

After September 8, 2005, the Commission shall promptly provide, upon request, to any Member of Congress information

used by the Commission in making its recommendations.

(3) LIMITATIONS ON AUTHORITY TO ADD TO CLOSURE OR REALIGNMENT LISTS.—The Commission may not consider making

a change in the recommendations of the Secretary that would

add a military installation to the Secretary’s list of installations recommended for closure or realignment unless, in addition to the requirements of section 2903(d)(2)(C)—

(A) the Commission provides the Secretary with at

least a 15-day period, before making the change, in which

to submit an explanation of the reasons why the installation was not included on the closure or realignment list by

the Secretary; and
817 Sec. 2914 1990 BASE REALIGNMENT AND CLOSURE ACT

(B) the decision to add the installation for Commission

consideration is supported by at least seven members of

the Commission.

(4) TESTIMONY BY SECRETARY.—The Commission shall invite the Secretary to testify at a public hearing, or a closed

hearing if classified information is involved, on any proposed

change by the Commission to the Secretary’s recommendations.

(5) SITE VISIT.—In the report required under section

2903(d)(2)(A) that is to be transmitted under paragraph (1),

the Commission may not recommend the closure of a military

installation not recommended for closure by the Secretary

under subsection (a) unless at least two members of the Commission visit the installation before the date of the transmittal

of the report.

(6) COMPTROLLER GENERAL REPORT.—The Comptroller

General report required by section 2903(d)(5)(B) analyzing the

recommendations of the Secretary and the selection process in

2005 shall be transmitted to the congressional defense committees not later than July 1, 2005.

(e) REVIEW BY THE PRESIDENT.—

(1) IN GENERAL.—Except as provided in this subsection,

section 2903(e) shall apply to the review by the President of

the recommendations of the Commission under this section,

and the actions, if any, of the Commission in response to such

review, in 2005. The President shall review the recommendations of the Secretary and the recommendations contained in

the report of the Commission under subsection (d) and prepare

a report, not later than September 23, 2005, containing the

President’s approval or disapproval of the Commission’s recommendations.

(2) COMMISSION RECONSIDERATION.—If the Commission

prepares a revised list of recommendations under section

2903(e)(3) in 2005 in response to the review of the President

in that year under paragraph (1), the Commission shall transmit the revised list to the President not later than October 20,

2005.

(3) EFFECT OF FAILURE TO TRANSMIT.—If the President

does not transmit to Congress an approval and certification described in paragraph (2) or (4) of section 2903(e) by November

7, 2005, the process by which military installations may be selected for closure or realignment under this part in 2005 shall

be terminated.

(4) EFFECT OF TRANSMITTAL.—A report of the President

under this subsection containing the President’s approval of

the Commission’s recommendations is deemed to be a report

under section 2903(e) for purposes of sections 2904 and 2908.

Part B—Other Provisions Relating to Defense

Base Closures and Realignments

SEC. 2921. ø10 U.S.C. 2687 note¿ CLOSURE OF FOREIGN MILITARY INSTALLATIONS

(a) SENSE OF CONGRESS.—It is the sense of the Congress

that—
Sec. 2921 1990 BASE REALIGNMENT AND CLOSURE ACT 818

(1) the termination of military operations by the United

States at military installations outside the United States

should be accomplished at the discretion of the Secretary of

Defense at the earliest opportunity;

(2) in providing for such termination, the Secretary of Defense should take steps to ensure that the United States receives, through direct payment or otherwise, consideration

equal to the fair market value of the improvements made by

the United States at facilities that will be released to host

countries;

(3) the Secretary of Defense, acting through the military

component commands or the sub-unified commands to the combatant commands, should be the lead official in negotiations

relating to determining and receiving such consideration; and

(4) the determination of the fair market value of such improvements released to host countries in whole or in part by

the United States should be handled on a facility-by-facility

basis.

(b) RESIDUAL VALUE.—(1) For each installation outside the

United States at which military operations were being carried out

by the United States on October 1, 1990, the Secretary of Defense

shall transmit, by no later than June 1, 1991, an estimate of the

fair market value, as of January 1, 1991, of the improvements

made by the United States at facilities at each such installation.

(2) For purposes of this section:

(A) The term ‘‘fair market value of the improvements’’

means the value of improvements determined by the Secretary

on the basis of their highest use.

(B) The term ‘‘improvements’’ includes new construction of

facilities and all additions, improvements, modifications, or

renovations made to existing facilities or to real property, without regard to whether they were carried out with appropriated

or nonappropriated funds.

(c) ESTABLISHMENT OF SPECIAL ACCOUNT.—(1) There is established on the books of the Treasury a special account to be known

as the ‘‘Department of Defense Overseas Military Facility Investment Recovery Account’’. Except as provided in subsection (d),

amounts paid to the United States, pursuant to any treaty, status

of forces agreement, or other international agreement to which the

United States is a party, for the residual value of real property or

improvements to real property used by civilian or military personnel of the Department of Defense shall be deposited into such

account.

(2) Money deposited in the Department of Defense Overseas

Military Facility Investment Recovery Account shall be available to

the Secretary of Defense for payment, as provided in appropriation

Acts, of costs incurred by the Department of Defense in connection

with—

(A) facility maintenance and repair and environmental restoration at military installations in the United States; and

(B) facility maintenance and repair and compliance with

applicable environmental laws at military installations outside

the United States that the Secretary anticipates will be occupied by the Armed Forces for a long period.
819 Sec. 2921 1990 BASE REALIGNMENT AND CLOSURE ACT

(3) Funds in the Department of Defense Overseas Facility Investment Recovery Account shall remain available until expended.

(d) AMOUNTS CORRESPONDING TO THE VALUE OF PROPERTY

PURCHASED WITH NONAPPROPRIATED FUNDS.—(1) In the case of a

payment referred to in subsection (c)(1) for the residual value of

real property or improvements at an overseas military facility, the

portion of the payment that is equal to the depreciated value of the

investment made with nonappropriated funds shall be deposited in

the reserve account established under section 204(b)(7)(C) of the

Defense Authorization Amendments and Base Closure and Realignment Act. The Secretary may use amounts in the account (in such

an aggregate amount as is provided in advance by appropriation

Acts) for the purpose of acquiring, constructing, or improving commissary stores and nonappropriated fund instrumentalities.

(2) As used in this subsection:

(A) The term ‘‘nonappropriated funds’’ means funds received from—

(i) the adjustment of, or surcharge on, selling prices at

commissary stores fixed under section 2685 of title 10,

United States Code; or

(ii) a nonappropriated fund instrumentality.

(B) The term ‘‘nonappropriated fund instrumentality’’

means an instrumentality of the United States under the jurisdiction of the Armed Forces (including the Army and Air Force

Exchange Service, the Navy Resale and Services Support Office, and the Marine Corps exchanges) which is conducted for

the comfort, pleasure, contentment, or physical or mental improvement of members of the Armed Forces.

(e) NEGOTIATIONS FOR PAYMENTS-IN-KIND.—(1) Before the Secretary of Defense enters into negotiations with a host country regarding the acceptance by the United States of any payment-inkind in connection with the release to the host country of improvements made by the United States at military installations in the

host country, the Secretary shall submit to the appropriate congressional committees a written notice regarding the intended negotiations.

(2) The notice shall contain the following:

(A) A justification for entering into negotiations for payments-in-kind with the host country.

(B) The types of benefit options to be pursued by the Secretary in the negotiations.

(C) A discussion of the adjustments that are intended to be

made in the future-years defense program or in the budget of

the Department of Defense for the fiscal year in which the notice is submitted or the following fiscal year in order to reflect

costs that it may no longer be necessary for the United States

to incur as a result of the payments-in-kind to be sought in the

negotiations.

(3) For purposes of this subsection, the appropriate congressional committees are—

(A) the Committee on Armed Services, the Committee on

Appropriations, and the National Security Subcommittee of the

Committee on Appropriations of the House of Representatives;

and
Sec. 2921 1990 BASE REALIGNMENT AND CLOSURE ACT 820

(B) the Committee on Armed Services, the Committee on

Appropriations, and the Subcommittee on Defense of the Committee on Appropriations of the Senate.

(f) OMB REVIEW OF PROPOSED SETTLEMENTS.—(1) The Secretary of Defense may not enter into an agreement of settlement

with a host country regarding the release to the host country of improvements made by the United States to facilities at an installation located in the host country until 30 days after the date on

which the Secretary submits the proposed settlement to the Director of the Office of Management and Budget. The prohibition set

forth in the preceding sentence shall apply only to agreements of

settlement for improvements having a value in excess of

$10,000,000. The Director shall evaluate the overall equity of the

proposed settlement. In evaluating the proposed settlement, the Director shall consider such factors as the extent of the United States

capital investment in the improvements being released to the host

country, the depreciation of the improvements, the condition of the

improvements, and any applicable requirements for environmental

remediation or restoration at the installation.

(2) Each year, the Secretary shall submit to the Committee on

Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on each proposed

agreement of settlement that was not submitted by the Secretary

to the Director of the Office of Management and Budget in the previous year under paragraph (1) because the value of the improvements to be released pursuant to the proposed agreement did not

exceed $10,000,000.

(g) CONGRESSIONAL OVERSIGHT OF PAYMENTS-IN-KIND.—(1) Before concluding an agreement for acceptance of military construction or facility improvements as a payment-in-kind, the Secretary

of Defense shall submit to Congress a notification on the proposed

agreement. Any such notification shall contain the following:

(A) A description of the military construction project or facility improvement project, as the case may be.

(B) A certification that the project is needed by United

States forces.

(C) An explanation of how the project will aid in the

achievement of the mission of those forces.

(D) A certification that, if the project were to be carried

out by the Department of Defense, appropriations would be

necessary for the project and it would be necessary to provide

for the project in the next future-years defense program.

(2) Before concluding an agreement for acceptance of host nation support or host nation payment of operating costs of United

States forces as a payment-in-kind, the Secretary of Defense shall

submit to Congress a notification on the proposed agreement. Any

such notification shall contain the following:

(A) A description of each activity to be covered by the payment-in-kind.

(B) A certification that the costs to be covered by the payment-in-kind are included in the budget of one or more of the

military departments or that it will otherwise be necessary to

provide for payment of such costs in a budget of one or more

of the military departments.
821 Sec. 2923 1990 BASE REALIGNMENT AND CLOSURE ACT

(C) A certification that, unless the payment-in-kind is accepted or funds are appropriated for payment of such costs, the

military mission of the United States forces with respect to the

host nation concerned will be adversely affected.

(3) When the Secretary submits a notification of a proposed

agreement under paragraph (1) or (2), the Secretary may then

enter into the agreement described in the notification only after the

end of the 30-day period beginning on the date on which the notification is submitted 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.

SEC. 2922. MODIFICATION OF THE CONTENT OF BIANNUAL REPORT

OF THE COMMISSION ON ALTERNATIVE UTILIZATION OF

MILITARY FACILITIES

[Omitted—Amendments]

SEC. 2923. FUNDING FOR ENVIRONMENTAL RESTORATION AT MILITARY INSTALLATIONS SCHEDULED FOR CLOSURE INSIDE

THE UNITED STATES

(a) AUTHORIZATION OF APPROPRIATIONS.—There is hereby authorized to be appropriated to the Department of Defense Base Closure Account for fiscal year 1991, in addition to any other funds

authorized to be appropriated to that account for that fiscal year,

the sum of $100,000,000. Amounts appropriated to that account

pursuant to the preceding sentence shall be available only for activities for the purpose of environmental restoration at military installations closed or realigned under title II of Public Law 100–526,

as authorized under section 204(a)(3) of that title.

(b) EXCLUSIVE SOURCE OF FUNDING.—(1) Section 207 of Public

Law 100–526 is amended by adding at the end the following:

[See section 207 , post at p. 1824]

(c) TASK FORCE REPORT.—(1) Not later than 12 months after

the date of the enactment of this Act [Nov. 5, 1990], the Secretary

of Defense shall submit to Congress a report containing the findings and recommendations of the task force established under

paragraph (2) concerning—

(A) ways to improve interagency coordination, within existing laws, regulations, and administrative policies, of environmental response actions at military installations (or portions of

installations) that are being closed, or are scheduled to be

closed, pursuant to title II of the Defense Authorization

Amendments and Base Closure and Realignment Act (Public

Law 100–526); and

(B) ways to consolidate and streamline, within existing

laws and regulations, the practices, policies, and administrative procedures of relevant Federal and State agencies with respect to such environmental response actions so as to enable

those actions to be carried out more expeditiously.

(2) There is hereby established an environmental response task

force to make the findings and recommendations, and to prepare

the report, required by paragraph (1). The task force shall consist

of the following (or their designees):

(A) The Secretary of Defense, who shall be chairman of the

task force.

(B) The Attorney General.
Sec. 2924 1990 BASE REALIGNMENT AND CLOSURE ACT 822

(C) The Administrator of the General Services Administration.

(D) The Administrator of the Environmental Protection

Agency.

(E) The Chief of Engineers, Department of the Army.

(F) A representative of a State environmental protection

agency, appointed by the head of the National Governors Association.

(G) A representative of a State attorney general’s office,

appointed by the head of the National Association of Attorney

Generals.

(H) A representative of a public-interest environmental organization, appointed by the Speaker of the House of Representatives.

SEC. 2924. COMMUNITY PREFERENCE CONSIDERATION IN CLOSURE

AND REALIGNMENT OF MILITARY INSTALLATIONS

In any process of selecting any military installation inside the

United States for closure or realignment, the Secretary of Defense

shall take such steps as are necessary to assure that special consideration and emphasis is given to any official statement from a unit

of general local government adjacent to or within a military installation requesting the closure or realignment of such installation.

SEC. 2925. RECOMMENDATIONS OF THE BASE CLOSURE COMMISSION

(a) NORTON AIR FORCE BASE.—(1) Consistent with the recommendations of the Commission on Base Realignment and Closure, the Secretary of the Air Force may not relocate, until after

September 30, 1995, any of the functions that were being carried

out at the ballistics missile office at Norton Air Force Base, California, on the date on which the Secretary of Defense transmitted

a report to the Committees on Armed Services of the Senate and

House of Representatives as described in section 202(a)(1) of Public

Law 100–526.

(2) This subsection shall take effect as of the date on which the

report referred to in subsection (a) was transmitted to such Committees.

(b) GENERAL DIRECTIVE.—Consistent with the requirements of

section 201 of Public Law 100–526, the Secretary of Defense shall

direct each of the Secretaries of the military departments to take

all actions necessary to carry out the recommendations of the Commission on Base Realignment and Closure and to take no action

that is inconsistent with such recommendations.

SEC. 2926. CONTRACTS FOR CERTAIN ENVIRONMENTAL RESTORATION ACTIVITIES

øRepealed by section 316 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108–136; 117 Stat.

1432).¿
823

2. 1988 BASE REALIGNMENT AND CLOSURE ACT

[Enacted as title II of the Defense Authorization Amendments and Base Closure and

Realignment Act (Public Law 100–526, approved Oct. 24, 1988; ø10 U.S.C. 2687

note¿)]

TITLE II—CLOSURE AND REALIGNMENT OF MILITARY

INSTALLATIONS

SEC. 201. CLOSURE AND REALIGNMENT OF MILITARY INSTALLATIONS

The Secretary shall—

(1) close all military installations recommended for closure

by the Commission on Base Realignment and Closure in the

report transmitted to the Secretary pursuant to the charter establishing such Commission;

(2) realign all military installations recommended for realignment by such Commission in such report; and

(3) initiate all such closures and realignments no later

than September 30, 1991, and complete all such closures and

realignments no later than September 30, 1995, except that no

such closure or realignment may be initiated before January 1,

1990.

SEC. 202. CONDITIONS

(a) IN GENERAL.—The Secretary may not carry out any closure

or realignment of a military installation under this title unless—

(1) no later than January 16, 1989, the Secretary transmits to the Committees on Armed Services of the Senate and

the House of Representatives a report containing a statement

that the Secretary has approved, and the Department of Defense will implement, all of the military installation closures

and realignments recommended by the Commission in the report referred to in section 201(1);

(2) the Commission has recommended, in the report referred to in section 201(1), the closure or realignment, as the

case may be, of the installation, and has transmitted to the

Committees on Armed Services of the Senate and the House of

Representatives a copy of such report and the statement required by section 203(b)(2); and

(3) the Secretary of Defense has transmitted to the Commission the study required by section 206(b).

(b) JOINT RESOLUTION.—The Secretary may not carry out any

closure or realignment under this title if, within the 45-day period

beginning on March 1, 1989, a joint resolution is enacted, in accordance with the provisions of section 208, disapproving the recommendations of the Commission. The days on which either House

of Congress is not in session because of an adjournment of more

than 3 days to a day certain shall be excluded in the computation

of such 45-day period.
Sec. 203 1988 BASE REALIGNMENT AND CLOSURE ACT 824

(c) TERMINATION OF AUTHORITY.—(1) Except as provided in

paragraph (2), the authority of the Secretary to carry out any closure or realignment under this title shall terminate on October 1,

1995.

(2) The termination of authority set forth in paragraph (1)

shall not apply to the authority of the Secretary to carry out environmental restoration and waste management at, or disposal of

property of, military installations closed or realigned under this

title.

SEC. 203. THE COMMISSION

(a) MEMBERSHIP.—The Commission shall consist of 12 members appointed by the Secretary of Defense.

(b) DUTIES.—The Commission shall—

(1) transmit the report referred to in section 201(1) to the

Secretary no later than December 31, 1988, and shall include

in such report a description of the Commission’s recommendations of the military installations to which functions will be

transferred as a result of the closures and realignments recommended by the Commission; and

(2) on the same date on which the Commission transmits

such report to the Secretary, transmit to Committees on Armed

Services of the Senate and the House of Representatives—

(A) a copy of such report; and

(B) a statement certifying that the Commission has

identified the military installations to be closed or realigned by reviewing all military installations inside the

United States, including all military installations under

construction and all those planned for construction.

(c) STAFF.—Not more than one-half of the professional staff of

the Commission shall be individuals who have been employed by

the Department of Defense during calendar year 1988 in any capacity other than as an employee of the Commission.

SEC. 204. IMPLEMENTATION

(a) IN GENERAL.—In closing or realigning a military installation under this title, the Secretary—

(1) subject to the availability of funds authorized for and

appropriated to the Department of Defense for use in planning

and design, minor construction, or operation and maintenance

and the availability of funds in the Account, may carry out actions necessary to implement such closure or realignment, including the acquisition of such land, the construction of such

replacement facilities, the performance of such activities, and

the conduct of such advance planning and design as may be required to transfer functions from such military installation to

another military installation;

(2) subject to the availability of funds authorized for and

appropriated to the Department of Defense for economic adjustment assistance or community planning assistance and the

availability of funds in the Account, shall provide—

(A) economic adjustment assistance to any community

located near a military installation being closed or realigned; and
825 Sec. 204 1988 BASE REALIGNMENT AND CLOSURE ACT

(B) community planning assistance to any community

located near a military installation to which functions will

be transferred as a result of such closure or realignment,

if the Secretary determines that the financial resources available to the community (by grant or otherwise) for such purposes are inadequate; and

(3) subject to the availability of funds authorized for and

appropriated to the Department of Defense for environmental

restoration and the availability of funds in the Account, may

carry out activities for the purpose of environmental restoration, including reducing, removing, and recycling hazardous

wastes and removing unsafe buildings and debris.

(b) MANAGEMENT AND DISPOSAL OF PROPERTY.—(1) The Administrator of General Services shall delegate to the Secretary, with respect to excess and surplus real property, facilities, and personal

property located at a military installation closed or realigned under

this title—

(A) the authority of the Administrator to utilize excess

property under subchapter II of chapter 5 of title 40, United

States Code;

(B) the authority of the Administrator to dispose of surplus

property under subchapter III of chapter 5 of title 40, United

States Code; and

(C) the authority to dispose of surplus property for public

airports under sections 47151 through 47153 of title 49, United

States Code.

(2)(A) Subject to subparagraph (B), the Secretary shall exercise

authority delegated to the Secretary pursuant to paragraph (1) in

accordance with—

(i) all regulations in effect on the date of the enactment of

this title governing utilization of excess property and disposal

of surplus property under the Federal Property and Administrative Services Act of 1949; and

(ii) all regulations in effect on the date of the enactment

of this title governing the conveyance and disposal of property

under section 13(g) of the Surplus Property Act of 1944 (50

U.S.C. App. 1622(g)).

(B) The Secretary, after consulting with the Administrator of

General Services, may issue regulations that are necessary to carry

out the delegation of authority required by paragraph (1).

(C) The authority required to be delegated by paragraph (1) to

the Secretary by the Administrator of General Services shall not

include the authority to prescribe general policies and methods for

utilizing excess property and disposing of surplus property.

(D) The Secretary of Defense may transfer real property or facilities located at a military installation to be closed or realigned

under this title, with or without reimbursement, to a military department or other entity (including a nonappropriated fund instrumentality) within the Department of Defense or the Coast Guard.

(E) Before any action may be taken with respect to the disposal

of any surplus real property or facility located at any military installation to be closed or realigned under this title, the Secretary

shall consult with the Governor of the State and the heads of the
Sec. 204 1988 BASE REALIGNMENT AND CLOSURE ACT 826

local governments concerned for the purpose of considering any

plan for the use of such property by the local community concerned.

(F) The provisions of this paragraph and paragraph (1) are

subject to paragraphs (3) through (6).

(3)(A) Not later than 6 months after the date of the enactment

of the National Defense Authorization Act for Fiscal Year 1994, the

Secretary, in consultation with the redevelopment authority with

respect to each military installation to be closed under this title

after such date of enactment, shall—

(i) inventory the personal property located at the installation; and

(ii) identify the items (or categories of items) of such personal property that the Secretary determines to be related to

real property and anticipates will support the implementation

of the redevelopment plan with respect to the installation.

(B) If no redevelopment authority referred to in subparagraph

(A) exists with respect to an installation, the Secretary shall consult with—

(i) the local government in whose jurisdiction the installation is wholly located; or

(ii) a local government agency or State government agency

designated for the purpose of such consultation by the chief executive officer of the State in which the installation is located.

(C)(i) Except as provided in subparagraphs (E) and (F), the

Secretary may not carry out any of the activities referred to in

clause (ii) with respect to an installation referred to in that clause

until the earlier of—

(I) one week after the date on which the redevelopment

plan for the installation is submitted to the Secretary;

(II) the date on which the redevelopment authority notifies

the Secretary that it will not submit such a plan;

(III) twenty-four months after the date referred to in subparagraph (A); or

(IV) ninety days before the date of the closure of the installation.

(ii) The activities referred to in clause (i) are activities relating

to the closure of an installation to be closed under this title as follows:

(I) The transfer from the installation of items of personal

property at the installation identified in accordance with subparagraph (A).

(II) The reduction in maintenance and repair of facilities

or equipment located at the installation below the minimum

levels required to support the use of such facilities or equipment for nonmilitary purposes.

(D) Except as provided in paragraph (4), the Secretary may not

transfer items of personal property located at an installation to be

closed under this title to another installation, or dispose of such

items, if such items are identified in the redevelopment plan for

the installation as items essential to the reuse or redevelopment of

the installation. In connection with the development of the redevelopment plan for the installation, the Secretary shall consult with

the entity responsible for developing the redevelopment plan to

identify the items of personal property located at the installation,
827 Sec. 204 1988 BASE REALIGNMENT AND CLOSURE ACT

if any, that the entity desires to be retained at the installation for

reuse or redevelopment of the installation.

(E) This paragraph shall not apply to any related personal

property located at an installation to be closed under this title if

the property—

(i) is required for the operation of a unit, function, component, weapon, or weapons system at another installation;

(ii) is uniquely military in character, and is likely to have

no civilian use (other than use for its material content or as

a source of commonly used components);

(iii) is not required for the reutilization or redevelopment

of the installation (as jointly determined by the Secretary and

the redevelopment authority);

(iv) is stored at the installation for purposes of distribution

(including spare parts or stock items); or

(v)(I) meets known requirements of an authorized program

of another Federal department or agency for which expenditures for similar property would be necessary, and (II) is the

subject of a written request by the head of the department or

agency.

(F) Notwithstanding subparagraphs (C)(i) and (D), the Secretary may carry out any activity referred to in subparagraph

(C)(ii) or (D) if the Secretary determines that the carrying out of

such activity is in the national security interest of the United

States.

(4)(A) The Secretary may transfer real property and personal

property located at a military installation to be closed or realigned

under this title to the redevelopment authority with respect to the

installation for purposes of job generation on the installation.

(B) The transfer of property of a military installation under

subparagraph (A) shall be without consideration if the redevelopment authority with respect to the installation—

(i) agrees that the proceeds from any sale or lease of the

property (or any portion thereof) received by the redevelopment

authority during at least the first seven years after the date

of the initial transfer of property under subparagraph (A) shall

be used to support the economic redevelopment of, or related

to, the installation; and

(ii) executes the agreement for transfer of the property and

accepts control of the property within a reasonable time after

the date of the property disposal record of decision or finding

of no significant impact under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(C) For purposes of subparagraph (B), the use of proceeds from

a sale or lease described in such subparagraph to pay for, or offset

the costs of, public investment on or related to the installation for

any of the following purposes shall be considered a use to support

the economic redevelopment of, or related to, the installation:

(i) Road construction.

(ii) Transportation management facilities.

(iii) Storm and sanitary sewer construction.

(iv) Police and fire protection facilities and other public facilities.

(v) Utility construction.
Sec. 204 1988 BASE REALIGNMENT AND CLOSURE ACT 828

(vi) Building rehabilitation.

(vii) Historic property preservation.

(viii) Pollution prevention equipment or facilities.

(ix) Demolition.

(x) Disposal of hazardous materials generated by demolition.

(xi) Landscaping, grading, and other site or public improvements.

(xii) Planning for or the marketing of the development and

reuse of the installation.

(D) The Secretary may recoup from a redevelopment authority

such portion of the proceeds from a sale or lease described in subparagraph (B) as the Secretary determines appropriate if the redevelopment authority does not use the proceeds to support economic

redevelopment of, or related to, the installation for the period specified in subparagraph (B).

(E)(i) The Secretary may transfer real property at an installation approved for closure or realignment under this title (including

property at an installation approved for realignment which will be

retained by the Department of Defense or another Federal agency

after realignment) to the redevelopment authority for the installation if the redevelopment authority agrees to lease, directly upon

transfer, one or more portions of the property transferred under

this subparagraph to the Secretary or to the head of another department or agency of the Federal Government. Subparagraph (B)

shall apply to a transfer under this subparagraph.

(ii) A lease under clause (i) shall be for a term of not to exceed

50 years, but may provide for options for renewal or extension of

the term by the department or agency concerned.

(iii) A lease under clause (i) may not require rental payments

by the United States.

(iv) A lease under clause (i) shall include a provision specifying

that if the department or agency concerned ceases requiring the

use of the leased property before the expiration of the term of the

lease, the remainder of the lease term may be satisfied by the same

or another department or agency of the Federal Government using

the property for a use similar to the use under the lease. Exercise

of the authority provided by this clause shall be made in consultation with the redevelopment authority concerned.

(v) Notwithstanding clause (iii), if a lease under clause (i) involves a substantial portion of the installation, the department or

agency concerned may obtain facility services for the leased property and common area maintenance from the redevelopment authority or the redevelopment authority’s assignee as a provision of

the lease. The facility services and common area maintenance shall

be provided at a rate no higher than the rate charged to non-Federal tenants of the transferred property. Facility services and common area maintenance covered by the lease shall not include—

(I) municipal services that a State or local government is

required by law to provide to all landowners in its jurisdiction

without direct charge; or

(II) firefighting or security-guard functions.

(F) The transfer of personal property under subparagraph (A)

shall not be subject to the provisions of subchapters II and III of
829 Sec. 204 1988 BASE REALIGNMENT AND CLOSURE ACT

chapter 5 of title 40, United States Code, if the Secretary determines that the transfer of such property is necessary for the effective implementation of a redevelopment plan with respect to the installation at which such property is located.

(G) The provisions of section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42

U.S.C. 9620(h)) shall apply to any transfer of real property under

this paragraph.

(H)(i) In the case of an agreement for the transfer of property

of a military installation under this paragraph that was entered

into before April 21, 1999, the Secretary may modify the agreement, and in so doing compromise, waive, adjust, release, or reduce

any right, title, claim, lien, or demand of the United States, if—

(I) the Secretary determines that as a result of changed

economic circumstances, a modification of the agreement is

necessary;

(II) the terms of the modification do not require the return

of any payments that have been made to the Secretary;

(III) the terms of the modification do not compromise,

waive, adjust, release, or reduce any right, title, claim, lien, or

demand of the United States with respect to in-kind consideration; and

(IV) the cash consideration to which the United States is

entitled under the modified agreement, when combined with

the cash consideration to be received by the United States for

the disposal of other real property assets on the installation,

are as sufficient as they were under the original agreement to

fund the reserve account established under paragraph (7)(C),

with the depreciated value of the investment made with commissary store funds or nonappropriated funds in property disposed of pursuant to the agreement being modified, in accordance with section 2906(d) of the Defense Base Closure and Realignment Act of 1990.

(ii) When exercising the authority granted by clause (i), the

Secretary may waive some or all future payments if, and to the extent that, the Secretary determines such waiver is necessary.

(iii) With the exception of the requirement that the transfer be

without consideration, the requirements of subparagraphs (B), (C),

and (D) shall be applicable to any agreement modified pursuant to

clause (i).

(I) In the case of an agreement for the transfer of property of

a military installation under this paragraph that was entered into

during the period beginning on April 21, 1999, and ending on the

date of enactment of the National Defense Authorization Act for

Fiscal Year 2000, at the request of the redevelopment authority

concerned, the Secretary shall modify the agreement to conform to

all the requirements of subparagraphs (B), (C), and (D). Such a

modification may include the compromise, waiver, adjustment, release, or reduction of any right, title, claim, lien, or demand of the

United States under the agreement.

(J) The Secretary may require any additional terms and conditions in connection with a transfer under this paragraph as such

Secretary considers appropriate to protect the interests of the

United States.
Sec. 204 1988 BASE REALIGNMENT AND CLOSURE ACT 830

(5)(A) Except as provided in subparagraphs (B) and (C), the

Secretary shall take such actions as the Secretary determines necessary to ensure that final determinations under paragraph (1) regarding whether another department or agency of the Federal Government has identified a use for any portion of a military installation to be closed under this title after the date of the enactment

of the National Defense Authorization Act for Fiscal Year 1994, or

will accept transfer of any portion of such installation, are made

not later than 6 months after such date of enactment.

(B) The Secretary may, in consultation with the redevelopment

authority with respect to an installation, postpone making the final

determinations referred to in subparagraph (A) with respect to the

installation for such period as the Secretary determines appropriate if the Secretary determines that such postponement is in the

best interests of the communities affected by the closure of the installation.

(C)(i) Before acquiring non-Federal real property as the location for a new or replacement Federal facility of any type, the head

of the Federal agency acquiring the property shall consult with the

Secretary regarding the feasibility and cost advantages of using

Federal property or facilities at a military installation closed or realigned or to be closed or realigned under this title as the location

for the new or replacement facility. In considering the availability

and suitability of a specific military installation, the Secretary and

the head of the Federal agency involved shall obtain the concurrence of the redevelopment authority with respect to the installation and comply with the redevelopment plan for the installation.

(ii) Not later than 30 days after acquiring non-Federal real

property as the location for a new or replacement Federal facility,

the head of the Federal agency acquiring the property shall submit

to Congress a report containing the results of the consultation

under clause (i) and the reasons why military installations referred

to in such clause that are located within the area to be served by

the new or replacement Federal facility or within a 200-mile radius

of the new or replacement facility, whichever area is greater, were

considered to be unsuitable or unavailable for the site of the new

or replacement facility.

(iii) This subparagraph shall apply during the period beginning

on the date of the enactment of the National Defense Authorization

Act for Fiscal Year 1998 and ending on July 31, 2001.

(6)(A) Except as provided in this paragraph, nothing in this

section shall limit or otherwise affect the application of the provisions of the McKinney-Vento Homeless Assistance Act (42 U.S.C.

11301 et seq.) to military installations closed under this title.

(B)(i) Not later than the date on which the Secretary of Defense completes the determination under paragraph (5) of the

transferability of any portion of an installation to be closed under

this title, the Secretary shall—

(I) complete any determinations or surveys necessary to

determine whether any building or property referred to in

clause (ii) is excess property, surplus property, or unutilized or

underutilized property for the purpose of the information referred to in section 501(a) of such Act (42 U.S.C. 11411(a)); and
831 Sec. 204 1988 BASE REALIGNMENT AND CLOSURE ACT

(II) submit to the Secretary of Housing and Urban Development information on any building or property that is so determined.

(ii) The buildings and property referred to in clause (i) are any

buildings or property located at an installation referred to in that

clause for which no use is identified, or of which no Federal department or agency will accept transfer, pursuant to the determination

of transferability referred to in that clause.

(C) Not later than 60 days after the date on which the Secretary of Defense submits information to the Secretary of Housing

and Urban Development under subparagraph (B)(ii), the Secretary

of Housing and Urban Development shall—

(i) identify the buildings and property described in such information that are suitable for use to assist the homeless;

(ii) notify the Secretary of Defense of the buildings and

property that are so identified;

(iii) publish in the Federal Register a list of the buildings

and property that are so identified, including with respect to

each building or property the information referred to in section

501(c)(1)(B) of such Act; and

(iv) make available with respect to each building and property the information referred to in section 501(c)(1)(C) of such

Act in accordance with such section 501(c)(1)(C).

(D) Any buildings and property included in a list published

under subparagraph (C)(iii) shall be treated as property available

for application for use to assist the homeless under section 501(d)

of such Act.

(E) The Secretary of Defense shall make available in accordance with section 501(f) of such Act any buildings or property referred to in subparagraph (D) for which—

(i) a written notice of an intent to use such buildings or

property to assist the homeless is received by the Secretary of

Health and Human Services in accordance with section

501(d)(2) of such Act;

(ii) an application for use of such buildings or property for

such purpose is submitted to the Secretary of Health and

Human Services in accordance with section 501(e)(2) of such

Act; and

(iii) the Secretary of Health and Human Services—

(I) completes all actions on the application in accordance with section 501(e)(3) of such Act; and

(II) approves the application under section 501(e) of

such Act.

(F)(i) Subject to clause (ii), a redevelopment authority may express in writing an interest in using buildings and property referred to in subparagraph (D), and buildings and property referred

to in subparagraph (B)(ii) which have not been identified as suitable for use to assist the homeless under subparagraph (C), or use

such buildings and property, in accordance with the redevelopment

plan with respect to the installation at which such buildings and

property are located as follows:

(I) If no written notice of an intent to use such buildings

or property to assist the homeless is received by the Secretary

of Health and Human Services in accordance with section
Sec. 204 1988 BASE REALIGNMENT AND CLOSURE ACT 832

501(d)(2) of such Act during the 60-day period beginning on the

date of the publication of the buildings and property under

subparagraph (C)(iii).

(II) In the case of buildings and property for which such

notice is so received, if no completed application for use of the

buildings or property for such purpose is received by the Secretary of Health and Human Services in accordance with section 501(e)(2) of such Act during the 90-day period beginning

on the date of the receipt of such notice.

(III) In the case of building and property for which such

application is so received, if the Secretary of Health and

Human Services rejects the application under section 501(e) of

such Act.

(ii) Buildings and property shall be available only for the purpose of permitting a redevelopment authority to express in writing

an interest in the use of such buildings and property, or to use

such buildings and property, under clause (i) as follows:

(I) In the case of buildings and property referred to in

clause (i)(I), during the one-year period beginning on the first

day after the 60-day period referred to in that clause.

(II) In the case of buildings and property referred to in

clause (i)(II), during the one-year period beginning on the first

day after the 90-day period referred to in that clause.

(III) In the case of buildings and property referred to in

clause (i)(III), during the one-year period beginning on the date

of the rejection of the application referred to in that clause.

(iii) A redevelopment authority shall express an interest in the

use of buildings and property under this subparagraph by notifying

the Secretary of Defense, in writing, of such an interest.

(G)(i) Buildings and property available for a redevelopment authority under subparagraph (F) shall not be available for use to assist the homeless under section 501 of such Act while so available

for a redevelopment authority.

(ii) If a redevelopment authority does not express an interest

in the use of buildings or property, or commence the use of buildings or property, under subparagraph (F) within the applicable

time periods specified in clause (ii) of such subparagraph, such

buildings or property shall be treated as property available for use

to assist the homeless under section 501(a) of such Act.

(7)(A) Except as provided in subparagraph (B) or (C), all

proceeds—

(i) from any transfer under paragraphs (3) through (6); and

(ii) from the transfer or disposal of any other property or

facility made as a result of a closure or realignment under this

title,

shall be deposited into the Account established by section 207(a)(1).

(B) In any case in which the General Services Administration

is involved in the management or disposal of such property or facility, the Secretary shall reimburse the Administrator of General

Services from the proceeds of such disposal, in accordance with section 1535 of title 31, United States Code, for any expenses incurred

in such activities.

(C)(i) If any real property or facility acquired, constructed, or

improved (in whole or in part) with commissary store funds or non-
833 Sec. 204 1988 BASE REALIGNMENT AND CLOSURE ACT

appropriated funds is transferred or disposed of in connection with

the closure or realignment of a military installation under this

title, a portion of the proceeds of the transfer or other disposal of

property on that installation shall be deposited in a reserve account

established in the Treasury to be administered by the Secretary.

Subject to the limitation in clause (iii), amounts in the reserve account are hereby made available to the Secretary, without appropriation and until expended, for the purpose of acquiring, constructing, and improving—

(I) commissary stores; and

(II) real property and facilities for nonappropriated fund

instrumentalities.

(ii) The amount deposited under clause (i) shall be equal to the

depreciated value of the investment made with such funds in the

acquisition, construction, or improvement of that particular real

property or facility. The depreciated value of the investment shall

be computed in accordance with regulations prescribed by the Secretary of Defense.

(iii) The aggregate amount obligated from the reserve account

established under clause (i) may not exceed the following:

(I) In fiscal year 2004, $31,000,000.

(II) In fiscal year 2005, $24,000,000.

(III) In fiscal year 2006, $15,000,000.

(iv) As used in this subparagraph:

(I) The term ‘‘commissary store funds’’ means funds received from the adjustment of, or surcharge on, selling prices

at commissary stores fixed under section 2685 of title 10,

United States Code.

(II) The term ‘‘nonappropriated funds’’ means funds received from a nonappropriated fund instrumentality.

(III) The term ‘‘nonappropriated fund instrumentality’’

means an instrumentality of the United States under the jurisdiction of the Armed Forces (including the Army and Air Force

Exchange Service, the Navy Resale and Services Support Office, and the Marine Corps exchanges) which is conducted for

the comfort, pleasure, contentment, or physical or mental improvement of members of the Armed Forces.

(8)(A) Subject to subparagraph (C), the Secretary may enter

into agreements (including contracts, cooperative agreements, or

other arrangements for reimbursement) with local governments for

the provision of police or security services, fire protection services,

airfield operation services, or other community services by such

governments at military installations to be closed under this title,

or at facilities not yet transferred or otherwise disposed of in the

case of installations closed under this title, if the Secretary determines that the provision of such services under such agreements

is in the best interests of the Department of Defense.

(B) The Secretary may exercise the authority provided under

this paragraph without regard to the provisions of chapter 146 of

title 10, United States Code.

(C) The Secretary may not exercise the authority under subparagraph (A) with respect to an installation earlier than 180 days

before the date on which the installation is to be closed.
Sec. 204 1988 BASE REALIGNMENT AND CLOSURE ACT 834

(D) The Secretary shall include in a contract for services entered into with a local government under this paragraph a clause

that requires the use of professionals to furnish the services to the

extent that professionals are available in the area under the jurisdiction of such government.

(c) APPLICABILITY OF OTHER LAW.—(1) The provisions of the

National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)

shall not apply to—

(A) the actions of the Commission, including selecting the

military installations which the Commission recommends for

closure or realignment under this title, recommending any

military installation to receive functions from an installation to

be closed or realigned, and making its report to the Secretary

and the committees under section 203(b); and

(B) the actions of the Secretary in establishing the Commission, in determining whether to accept the recommendations of the Commission, in selecting any military installation

to receive functions from an installation to be closed or realigned, and in transmitting the report to the Committees referred to in section 202(a)(1).

(2) The provisions of the National Environmental Policy Act of

1969 shall apply to the actions of the Secretary (A) during the process of the closing or realigning of a military installation after such

military installation has been selected for closure or realignment

but before the installation is closed or realigned and the functions

relocated, and (B) during the process of the relocating of functions

from a military installation being closed or realigned to another

military installation after the receiving installation has been selected but before the functions are relocated. In applying the provisions of such Act, the Secretary shall not have to consider—

(i) the need for closing or realigning a military installation

which has been selected for closure or realignment by the Commission;

(ii) the need for transferring functions to another military

installation which has been selected as the receiving installation; or

(iii) alternative military installations to those selected.

(3) A civil action for judicial review, with respect to any requirement of the National Environmental Policy Act of 1969 to the

extent such Act is applicable under paragraph (2), or with respect

to any requirement of the Commission made by this title, of any

action or failure to act by the Secretary during the closing, realigning, or relocating referred to in clauses (A) and (B) of paragraph

(2), or of any action or failure to act by the Commission under this

title, may not be brought later than the 60th day after the date of

such action or failure to act.

(d) TRANSFER AUTHORITY IN CONNECTION WITH PAYMENT OF

ENVIRONMENTAL REMEDIATION COSTS.—(1)(A) Subject to paragraph

(2) of this subsection and section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42

U.S.C. 9620(h)), the Secretary may enter into an agreement to

transfer by deed real property or facilities referred to in subparagraph (B) with any person who agrees to perform all environmental

restoration, waste management, and environmental compliance ac-
835 Sec. 204 1988 BASE REALIGNMENT AND CLOSURE ACT

tivities that are required for the property or facilities under Federal and State laws, administrative decisions, agreements (including schedules and milestones), and concurrences.

(B) The real property and facilities referred to in subparagraph

(A) are the real property and facilities located at an installation

closed or to be closed under this title that are available exclusively

for the use, or expression of an interest in a use, of a redevelopment authority under subsection (b)(6)(F) during the period provided for that use, or expression of interest in use, under that subsection.

(C) The Secretary may require any additional terms and conditions in connection with an agreement authorized by subparagraph

(A) as the Secretary considers appropriate to protect the interests

of the United States.

(2) A transfer of real property or facilities may be made under

paragraph (1) only if the Secretary certifies to Congress that—

(A) the costs of all environmental restoration, waste management, and environmental compliance activities to be paid

by the recipient of the property or facilities are equal to or

greater than the fair market value of the property or facilities

to be transferred, as determined by the Secretary; or

(B) if such costs are lower than the fair market value of

the property or facilities, the recipient of the property or facilities agrees to pay the difference between the fair market value

and such costs.

(3) As part of an agreement under paragraph (1), the Secretary

shall disclose to the person to whom the property or facilities will

be transferred any information of the Secretary regarding the environmental restoration, waste management, and environmental

compliance activities described in paragraph (1) that relate to the

property or facilities. The Secretary shall provide such information

before entering into the agreement.

(4) Nothing in this subsection shall be construed to modify,

alter, or amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) or the

Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).

(5) Section 330 of the National Defense Authorization Act for

Fiscal Year 1993 (Public Law 102–484; 10 U.S.C. 2687 note) shall

not apply to any transfer under this subsection to persons or entities described in subsection (a)(2) of such section 330.

(6) The Secretary may not enter into an agreement to transfer

property or facilities under this subsection after the expiration of

the five-year period beginning on the date of the enactment of the

National Defense Authorization Act for Fiscal Year 1994.

(e) TRANSFER AUTHORITY IN CONNECTION WITH CONSTRUCTION

OR PROVISION OF MILITARY FAMILY HOUSING.—øRepealed by section 2805(d) of the National Defense Authorization Act for Fiscal

Year 2004 (Public Law 108–136; 117 Stat. 1721).¿

(f) ACQUISITION OF MANUFACTURED HOUSING.—(1) In closing or

realigning any military installation under this title, the Secretary

may purchase any or all right, title, and interest of a member of

the Armed Forces and any spouse of the member in manufactured

housing located at a manufactured housing park established at an

installation closed or realigned under this title, or make a payment
Sec. 205 1988 BASE REALIGNMENT AND CLOSURE ACT 836

to the member to relocate the manufactured housing to a suitable

new site, if the Secretary determines that—

(A) it is in the best interests of the Federal Government

to eliminate or relocate the manufactured housing park; and

(B) the elimination or relocation of the manufactured housing park would result in an unreasonable financial hardship to

the owners of the manufactured housing.

(2) Any payment made under this subsection shall not exceed

90 percent of the purchase price of the manufactured housing, as

paid by the member or any spouse of the member, plus the cost of

any permanent improvements subsequently made to the manufactured housing by the member or spouse of the member.

(3) The Secretary shall dispose of manufactured housing acquired under this subsection through resale, donation, trade or otherwise within one year of acquisition.

SEC. 205. WAIVER

The Secretary may carry out this title without regard to—

(1) any provision of law restricting the use of funds for

closing or realigning military installations included in any appropriation or authorization Act; and

(2) the procedures set forth in sections 2662 and 2687 of

title 10, United States Code.

SEC. 206. REPORTS

(a) IN GENERAL.—As part of each annual budget request for

the Department of Defense, the Secretary shall transmit to the appropriate committees of Congress—

(1) a schedule of the closure and realignment actions to be

carried out under this title in the fiscal year for which the request is made and an estimate of the total expenditures required and cost savings to be achieved by each such closure

and realignment and of the time period in which these savings

are to be achieved in each case, together with the Secretary’s

assessment of the environmental effects of such actions; and

(2) a description of the military installations, including

those under construction and those planned for construction, to

which functions are to be transferred as a result of such closures and realignments, together with the Secretary’s assessment of the environmental effects of such transfers.

(b) STUDY.—(1) The Secretary shall conduct a study of the military installations of the United States outside the United States to

determine if efficiencies can be realized through closure or realignment of the overseas base structure of the United States. Not later

than October 15, 1988, the Secretary shall transmit a report of the

findings and conclusions of such study to the Commission and to

the Committees on Armed Services of the Senate and the House of

Representatives. In developing its recommendations to the Secretary under this title, the Commission shall consider the Secretary’s study.

(2) Upon request of the Commission, the Secretary shall provide the Commission with such information about overseas bases

as may be helpful to the Commission in its deliberations.

(3) The Commission, based on its analysis of military installations in the United States and its review of the Secretary’s study
837 Sec. 207 1988 BASE REALIGNMENT AND CLOSURE ACT

of the overseas base structure, may provide the Secretary with

such comments and suggestions as it considers appropriate regarding the Secretary’s study of the overseas base structure.

SEC. 207. FUNDING

(a) ACCOUNT.—(1) There is hereby established on the books of

the Treasury an account to be known as the ‘‘Department of Defense Base Closure Account’’ which shall be administered by the

Secretary as a single account.

(2) There shall be deposited into the Account—

(A) funds authorized for and appropriated to the Account

with respect to fiscal year 1990 and fiscal years beginning

thereafter;

(B) any funds that the Secretary may, subject to approval

in an appropriation Act, transfer to the Account from funds appropriated to the Department of Defense for any purpose, except that such funds may be transferred only after the date on

which the Secretary transmits written notice of, and justification for, such transfer to the appropriate committees of Congress; and

(C) proceeds described in section 204(b)(4)(A).

(3)(A) The Secretary may use the funds in the Account only for

the purposes described in section 204(a).

(B) When a decision is made to use funds in the Account to

carry out a construction project under section 204(a)(1) and the cost

of the project will exceed the maximum amount authorized by law

for a minor construction project, the Secretary shall notify in writing the appropriate committees of Congress of the nature of, and

justification for, the project and the amount of expenditures for

such project. Any such construction project may be carried out

without regard to section 2802(a) of title 10, United States Code.

(4) No later than 60 days after the end of each fiscal year in

which the Secretary carries out activities under this title, the Secretary shall transmit a report to the appropriate committees of

Congress of the amount and nature of the deposits into, and the

expenditures from, the Account during such fiscal year and of the

amount and nature of other expenditures made pursuant to section

204(a) during such fiscal year.

(5)(A) Except as provided in subparagraph (B), unobligated

funds which remain in the Account after the termination of the authority of the Secretary to carry out a closure or realignment under

this title shall be held in the Account until transferred by law after

the appropriate committees of Congress receive the report transmitted under paragraph (6).

(B) The Secretary may, after the termination of authority referred to in subparagraph (A), use any unobligated funds referred

to in that subparagraph that are not transferred in accordance

with that subparagraph to carry out environmental restoration and

waste management at, or disposal of property of, military installations closed or realigned under this title.

(6) No later than 60 days after the termination of the authority

of the Secretary to carry out a closure or realignment under this

title, the Secretary shall transmit to the appropriate committees of

Congress a report containing an accounting of—
Sec. 208 1988 BASE REALIGNMENT AND CLOSURE ACT 838

(A) all the funds deposited into and expended from the Account or otherwise expended under this title; and

(B) any amount remaining in the Account.

(7) Proceeds received after September 30, 1995, from the lease,

transfer, or disposal of any property at a military installation

closed or realigned under this title shall be deposited directly into

the Department of Defense Base Closure Account 1990 established

by section 2906(a) of the Defense Base Closure and Realignment

Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C.

2687 note).

(b) BASE CLOSURE ACCOUNT TO BE EXCLUSIVE SOURCE OF

FUNDS FOR ENVIRONMENTAL RESTORATION PROJECTS.—No funds

appropriated to the Department of Defense may be used for purposes described in section 204(a)(3) except funds that have been authorized for and appropriated to the Account. The prohibition in

the preceding sentence expires upon the termination of the authority of the Secretary to carry out a closure or realignment under this

title.

SEC. 208. CONGRESSIONAL CONSIDERATION OF COMMISSION REPORT

(a) TERMS OF THE RESOLUTION.—For purposes of section

202(b), the term ‘‘joint resolution’’ means only a joint resolution

which is introduced before March 15, 1989, and—

(1) which does not have a preamble;

(2) the matter after the resolving clause of which is as follows: ‘‘That Congress disapproves the recommendations of the

Commission on Base Realignment and Closure established by

the Secretary of Defense as submitted to the Secretary of Defense on ’’, the blank space being appropriately

filled in; and

(3) the title of which is as follows: ‘‘Joint resolution disapproving the recommendations of the Commission on Base

Realignment and Closure.’’.

(b)–(f) [Omitted—Obsolete]

SEC. 209. DEFINITIONS

In this title:

(1) The term ‘‘Account’’ means the Department of Defense

Base Closure Account established by section 207(a)(1).

(2) The term ‘‘appropriate committees of Congress’’ means

the Committees on Armed Services and the Committees on Appropriations of the Senate and the House of Representatives.

(3) The terms ‘‘Commission on Base Realignment and Closure’’ and ‘‘Commission’’ mean the Commission established by

the Secretary of Defense in the charter signed by the Secretary

on May 3, 1988, and as altered thereafter with respect to the

membership and voting.

(4) The term ‘‘charter establishing such Commission’’

means the charter referred to in paragraph (3).

(5) The term ‘‘initiate’’ includes any action reducing functions or civilian personnel positions but does not include studies, planning, or similar activities carried out before there is a

reduction of such functions or positions.
839 Sec. 209 1988 BASE REALIGNMENT AND CLOSURE ACT

(6) The term ‘‘military installation’’ means a base, camp,

post, station, yard, center, homeport facility for any ship, or

other activity under the jurisdiction of the Secretary of a military department.

(7) The term ‘‘realignment’’ includes any action which both

reduces and relocates functions and civilian personnel positions.

(8) The term ‘‘Secretary’’ means the Secretary of Defense.

(9) The term ‘‘United States’’ means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, Guam,

the Virgin Islands, American Samoa, and any other commonwealth, territory, or possession of the United States.

(10) The term ‘‘redevelopment authority’’, in the case of an

installation to be closed under this title, means any entity (including an entity established by a State or local government)

recognized by the Secretary of Defense as the entity responsible for developing the redevelopment plan with respect to the

installation or for directing the implementation of such plan.

(11) The term ‘‘redevelopment plan’’ in the case of an installation to be closed under this title, means a plan that—

(A) is agreed to by the redevelopment authority with

respect to the installation; and

(B) provides for the reuse or redevelopment of the real

property and personal property of the installation that is

available for such reuse or redevelopment as a result of

the closure of the installation.
840

3. SECTION 1013 OF THE DEMONSTRATION CITIES AND

METROPOLITAN DEVELOPMENT ACT OF 1966

ACQUISITION OF CERTAIN PROPERTIES SITUATED AT OR NEAR

MILITARY BASES WHICH HAVE BEEN ORDERED TO BE CLOSED

SEC. 1013. ø42 U.S.C. 3374¿ (a) Notwithstanding any other

provision of law, the Secretary of Defense is authorized to acquire

title to, hold, manage, and dispose of, or, in lieu thereof, to reimburse for certain losses upon private sale of, or foreclosure against,

any property improved with a one- or two-family dwelling which is

situated at or near a military base or installation which the Department of Defense has, subsequent to November 1, 1964, ordered

to be closed in whole or in part, if he determines—

(1) that the owner of such property is, or has been, a Federal employee employed at or in connection with such base or

installation (other than a temporary employee serving under a

time limitation, a nonappropriated fund instrumentality employee employed at a nonappropriated fund instrumentality operated in connection with such base or installation, or a member of the Armed Forces of the United States assigned thereto;

(2) that the closing of such base or installation, in whole

or in part, has required or will require the termination of such

owner’s employment or service at or in connection with such

base or installation or, in the case of a member of the Armed

Forces not assigned to that base or installation at the time of

public announcement of such closing, will prevent any reassignment of such member to the base or installation; and

(3) that as the result of the actual or pending closing of

such base or installation, in whole or in part, or if as the result

of such action and other similar action in the same area, there

is no present market for the sale of such property upon reasonable terms and conditions.

(b)(1) In order to be eligible for the benefits of this section, a

civilian employee or a member of the Armed Forces—

(A) must be assigned to or employed at or in connection

with the installation or activity at the time of public announcement of the closure action, or employed by a nonappropriated

fund instrumentality operated in connection with such base or

installation;

(B) must have been transferred from such installation or

activity, or terminated as an employee as a result of a reduction in force, within six months prior to public announcement

of the closure action; or

(C) must have been transferred from the installation or activity on an overseas tour within three years prior to public announcement of the closure action.
841 Sec. 1013 HOMEOWNERS ASSISTANCE PROGRAM

(2) A member of the Armed Forces shall also be eligible for the

benefits of this section if the member—

(A) was transferred from the installation or activity within

three years prior to public announcement of the closure action;

and

(B) in connection with the transfer, was informed of a future, programmed reassignment to the installation.

(3) The eligibility of a civilian employee and member of the

Armed Forces under paragraph (1) and a member of the Armed

Forces under paragraph (2) for benefits under this section in connection with the closure of an installation or activity is subject to

the additional conditions set out in paragraphs (4) and (5).

(4) At the time of public announcement of the closure action,

or at the time of transfer or termination as set forth above, such

personnel or employees must—

(A) have been the owner-occupant of the dwelling, or

(B) have vacated the owned dwelling as a result of being

ordered into on-post housing during a six-month period prior to

the closure announcement.

(5) As a consequence of such closure such employees or personnel must—

(A) be required to relocate because of military transfer or

acceptance of employment beyond a normal commuting distance from the dwelling for which compensation is sought, or

(B) be unemployed, not as a matter of personal choice, and

able to demonstrate such financial hardship that they are unable to meet their mortgage payments and related expenses.

(c) Such persons as the Secretary of Defense may determine to

be eligible under the criteria set forth above shall elect either (1)

to receive a cash payment as compensation for losses which may

be or have been sustained in a private sale, in an amount not to

exceed the difference between (A) 95 per centum of the fair market

value of their property (as such value is determined by the Secretary of Defense) prior to public announcement of intention to

close all or part of the military base or installation and (B) the fair

market value of such property (as such value is so determined) at

the time of the sale, or (2) to receive, as purchase price for their

property, an amount not to exceed 90 per centum of prior fair market value as such value is determined by the Secretary of Defense,

or the amount of the outstanding mortgages. The Secretary may

also pay a person who elects to receive a cash payment under

clause (1) of the preceding sentence an amount that the Secretary

determines appropriate to reimburse the person for the costs incurred by the person in the sale of the property if the Secretary determines that such payment will benefit the person and is in the

best interest of the Federal Government. Cash payment as compensation for losses sustained in a private sale shall not be made

in any case in which the property is encumbered by a mortgage

loan guaranteed, insured, or held by a Federal agency unless such

mortgage loan is paid, assumed by a purchaser satisfactory to such

Federal agency, or otherwise fully satisfied at or prior to the time

such cash payment is made. Except in cases of payment as compensation for losses, in the event of foreclosure by mortgagees commenced on or after public announcement of intention to close all or
Sec. 1013 HOMEOWNERS ASSISTANCE PROGRAM 842

1Section 406(a) of the Act of August 30, 1957, was repealed by section 7(3) of Public Law 97–

214 (96 Stat. 173).

part of the military base or installation, the Secretary of Defense

may reimburse or pay on account of eligible persons such sums as

may be paid or be otherwise due and owing by such persons as the

result of such foreclosure, including (without limiting the generality of the foregoing) direct costs of judicial foreclosure, expenses

and liabilities enforceable according to the terms of their mortgages

or promissory notes, and the amount of debts, if any, established

against such persons by a Federal agency in the case of loans

made, guaranteed, or insured by such agency following liquidation

of the security for such loans.

(d) There shall be in the Treasury a fund which shall be available to the Secretary of Defense for the purpose of extending the

financial assistance provided above. The capital of such fund shall

consist of such sums as may, from time to time, be appropriated

thereto, and shall consist also of receipts from the management,

rental, or sale of properties acquired under this section, which receipts shall be credited to the fund and shall be available, together

with funds appropriated therefor, for purchase or reimbursement

purposes as provided above, as well as to defray expenses arising

in connection with the acquisition, management, and disposal of

such properties, including payment of principal, interest, and expenses of mortgages or other indebtedness thereon, and including

the cost of staff services and contract services, costs of insurance,

and other indemnity. Any part of such receipts not required for

such expenses shall be covered into the Treasury as miscellaneous

receipts. Properties acquired under this section shall be conveyed

to, and acquired in the name of, the United States. The Secretary

of Defense shall have the power to deal with, rent, renovate, and

dispose of, whether by sales for cash or credit or otherwise, any

properties so acquired: Provided, however, That no contract for acquisition, or acquisition, shall be deemed to constitute a contract

for or acquisition of family housing units in support of military installations or activities within the meaning of section 406(a) of the

Act of August 30, 1957 (42 U.S.C. 1594i) 1, nor shall it be deemed

a transaction within the contemplation of section 2662 of title 10,

United States Code: Provided further, That no properties in foreign

countries shall be acquired under this section, except in connection

with compensation for property located on a base or installation

pursuant to subsection (1).

(e) Payments from the fund created by this section may be

made in lieu of taxes to any State or political subdivision thereof,

with respect to real property, including improvements thereon, acquired and held under this section. The amount so paid for any

year upon such property shall not exceed the taxes which would be

paid to the State or subdivision, as the case may be, upon such

property if it were not exempt from taxation, and shall reflect such

allowance as may be considered appropriate for expenditures, if

any, by the Government for streets, utilities, or other public services to serve such property.

(f) The title to any property acquired under this section, the

eligibility for, and the amounts of, cash payable, and the adminis-
843 Sec. 1013 HOMEOWNERS ASSISTANCE PROGRAM

tration of the preceding provisions of this section, shall conform to

such requirements, and shall be administered under such conditions and regulations, as the Secretary of Defense may prescribe.

Such regulations shall also prescribe the terms and conditions

under which payments may be made and instruments accepted

under this section, and all the determinations and decisions made

pursuant to such regulations by the Secretary of Defense regarding

such payments and conveyances and the terms and conditions

under which they are approved or disapproved, shall be final and

conclusive and shall not be subject to judicial review.

(g) The Secretary of Defense is authorized to enter into such

agreement with the Secretary of Housing and Urban Development

as may be appropriate for the purposes of economy and efficiency

of administration of this section. Such agreement may provide authority to the Secretary of Housing and Urban Development and

his designee to make any or all of the determinations and take any

or all of the actions which the Secretary of Defense is authorized

to undertake pursuant to the preceding provisions of this section.

Any such determinations shall be entitled to finality to the same

extent as if made by the Secretary of Defense, and, in event the

Secretaries of Defense and Housing and Urban Development so

elect, the fund established pursuant to subsection (d) of this section

shall be available to the Secretary of Housing and Urban Development to carry out the purposes thereof.

(h) Section 223(a)(8) of the National Housing Act is amended

to read as follows:

‘‘(8) executed in connection with the sale by the Government of any housing acquired pursuant to section 1013 of the

Demonstration Cities and Metropolitan Development Act of

1966.’’

(i) No funds may be appropriated for the acquisition of any

property under authority of this section unless such funds have

been specifically authorized for such purpose in a military construction authorization act, and no moneys in the fund created pursuant

to subsection (d) of this section may be expended for any purpose

except as may be provided in appropriation Acts.

(j) Section 108 of the Housing and Urban Development Act of

1965 is repealed.

(k) The authority provided by this section to the Secretary of

Defense shall also be available when the Department of Defense

has ordered a reduction in the scope of operations at a military

base or installation. All references in subsections (a), (b), (c), (n),

and (o) to ‘‘closures’’ or ‘‘closings’’ or words of similar effect shall be

deemed to include the reduction in scope of operations at a base or

installation.

(l) Notwithstanding the provisions of subsection (a)(2) and subsection (b)(5), Federal employees or military personnel employed at

or near a military base or installation outside the United States

who are otherwise eligible under the criteria as set forth above

shall be entitled to compensation for losses arising (1) out of the

sale of property, or (2) out of the inability to sell property located

on a base or installation, incident to the owner’s transfer, reassignment, or involuntary termination of employment, which results in

his relocation. Such employees or military personnel whose prop-
Sec. 1013 HOMEOWNERS ASSISTANCE PROGRAM 844

erty is located off a base or installation shall be entitled to compensation under subsection (c) for losses sustained in private sales.

Such employees or personnel whose property is located on a base

or installation, who sell or are unable to find a purchaser for such

property, may surrender their interest in such property to the

United States, and shall be entitled to compensation, notwithstanding lack of ownership of the land on which such property is

located, in an amount equal to (A) 90 per centum of the sum of the

present owner’s purchase price of the dwelling and improvements,

and all costs of ownership including interest on notes, utilities and

services, maintenance and insurance, less (B) the total of all housing allowances received from the Government during ownership

and occupancy of the dwelling, all rents collected, and the sale

price, if any, received for the property, as determined by the Secretary of Defense: Provided, however, That the maximum compensation shall in no event exceed 90 per centum of the

unamortized portion of the cost of the property, including improvements, at the time ownership is terminated, as reflected in the amortization schedule, if any, relating to such property. For the purpose of this subsection, the term ‘‘United States’’ means the several

States and the District of Columbia.

(m) In addition to the coverage provided above, the benefits of

this section shall apply, as to closure actions in the several States

and the District of Columbia announced after April 1, 1973, to otherwise eligible employees or personnel who are (1) employed or assigned either at or near the base or installation affected by the closure action, and (2) are required to relocate, due to transfer, reassignment or involuntary termination of employment, for reasons

other than the closure action.

(n)(1) Assistance under this section shall be provided by the

Secretary of Defense with respect to Coast Guard bases and installations ordered to be closed, in whole or in part, after January 1,

1987. Such assistance shall be provided under terms equivalent to

those under which assistance is provided under this section for

closings of military bases and installations which are under the jurisdiction of the Secretary of Defense.

(2) The Secretary of the department in which the Coast Guard

is operating, if other than the Department of Defense, shall reimburse the Secretary of Defense for expenditures under this section

made by the Secretary of Defense with respect to closings of Coast

Guard bases and installations ordered when the Coast Guard is not

operating as a service in the Navy. The Secretary of Defense and

the Secretary of the department in which the Coast Guard is operating shall enter into an agreement under which the Secretary of

the department in which the Coast Guard is operating shall carry

out such reimbursement.

(o)(1) Assistance under this section shall be provided by the

Secretary of Defense with respect to nonappropriated fund instrumentality employees adversely affected by the closure of a base or

installation ordered to be closed, in whole or in part, after December 31, 1988.

(2) Notwithstanding subsection (b), a civilian employee who is

serving overseas and is entitled to reemployment by the Federal

Government (including a nonappropriated fund instrumentality of
845 FY92 HOMEOWNERS ASSISTANCE PROGRAM

the United States) at or in connection with a base or installation

ordered to be closed, in whole or in part, shall be entitled to the

benefits of this section to the same extent as an employee employed

at or in connection with that base or installation.

(3) All payments to a nonappropriated fund instrumentality

employee under this section shall be made from the funds available

to the Secretary of Defense under subsection (d).

(4) For purposes of this section:

(A) The term ‘‘nonappropriated fund instrumentality employee’’ means a civilian employee who—

(i) is a citizen of the United States; and

(ii) is paid from nonappropriated funds of Army and

Air Force Exchange Service, Navy Resale and Services

Support Office, Marine Corps exchanges, or any other instrumentality of the United States under the jurisdiction

of the Armed Forces which is conducted for the comfort,

pleasure, contentment, or physical or mental improvement

of members of the Armed Forces.

(B) The term ‘‘civilian employee’’ has the meaning given

the term ‘‘employee’’ in section 2105(a) of title 5, United States

Code.
846

4. MISCELLANEOUS BASE REALIGNMENT AND CLOSURE

PROVISIONS

a. Consideration of Surge Requirements in 2005 Round of

Base Realignments and Closures

(Section 2822 of the National Defense Authorization Act for Fiscal Year 2004 (Public

Law 108–136, approved Nov. 24, 2003))

SEC. 2822. ø10 U.S.C. 2687 note¿ CONSIDERATION OF SURGE REQUIREMENTS IN 2005 ROUND OF BASE REALIGNMENTS AND

CLOSURES.

(a) DETERMINATION OF SURGE REQUIREMENTS.—The Secretary

of Defense shall assess the probable threats to national security

and, as part of such assessment, determine the potential, prudent,

surge requirements to meet those threats.

(b) USE OF DETERMINATION.—The Secretary shall use the surge

requirements determination made under subsection (a) in the base

realignment and closure process under the Defense Base Closure

and Realignment Act of 1990 (part A of title XXIX of Public Law

101–510; 10 U.S.C. 2687 note), as amended by title XXX of the National Defense Authorization Act for Fiscal Year 2002 (Public Law

107–107; 115 Stat. 1342).

b. Military Construction Authorization Act for Fiscal Year

1998

(Division B of Public Law 105–85, approved Nov. 18, 1997)

TITLE XXVIII—GENERAL PROVISIONS

* * * * * * *

Subtitle C—Defense Base Closure and Realignment

* * * * * * *

SEC. 2824. ø10 U.S.C. 2687 note¿ REPORT ON CLOSURE AND REALIGNMENT OF MILITARY INSTALLATIONS.

(a) REPORT.—(1) The Secretary of Defense shall prepare and

submit to the congressional defense committees a report on the

costs and savings attributable to the rounds of base closures and

realignments conducted under the base closure laws and on the

need, if any, for additional rounds of base closures and realignments.

(2) For purposes of this section, the term ‘‘base closure laws’’

means—

(A) title II of the Defense Authorization Amendments and

Base Closure and Realignment Act (Public Law 100–526; 10

U.S.C. 2687 note); and
847 FY98 MISCELLANEOUS BASE CLOSURE PROVISIONS

(B) the Defense Base Closure and Realignment Act of 1990

(part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687

note).

(b) ELEMENTS.—The report under subsection (a) shall include

the following:

(1) A statement, using data consistent with budget data, of

the actual costs and savings (to the extent available for prior

fiscal years) and the estimated costs and savings (in the case

of future fiscal years) attributable to the closure and realignment of military installations as a result of the base closure

laws.

(2) A comparison, set forth by base closure round, of the

actual costs and savings stated under paragraph (1) to the estimates of costs and savings submitted to the Defense Base Closure and Realignment Commission as part of the base closure

process.

(3) A comparison, set forth by base closure round, of the

actual costs and savings stated under paragraph (1) to the annual estimates of costs and savings previously submitted to

Congress.

(4) A list of each military installation at which there is authorized to be employed 300 or more civilian personnel, set

forth by Armed Force.

(5) An estimate of current excess capacity at military installations, set forth—

(A) as a percentage of the total capacity of the military

installations of the Armed Forces with respect to all military installations of the Armed Forces;

(B) as a percentage of the total capacity of the military

installations of each Armed Force with respect to the military installations of such Armed Force; and

(C) as a percentage of the total capacity of a type of

military installations with respect to military installations

of such type.

(6) An assessment of the effect of the previous base closure

rounds on military capabilities and the ability of the Armed

Forces to fulfill the National Military Strategy.

(7) A description of the types of military installations that

would be recommended for closure or realignment in the event

of one or more additional base closure rounds, set forth by

Armed Force.

(8) The criteria to be used by the Secretary in evaluating

military installations for closure or realignment in such event.

(9) The methodologies to be used by the Secretary in identifying military installations for closure or realignment in such

event.

(10) An estimate of the costs and savings that the Secretary believes will be achieved as a result of the closure or realignment of military installations in such event, set forth by

Armed Force and by year.

(11) An assessment of whether the costs and estimated

savings from one or more future rounds of base closures and

realignments, currently unauthorized, are already contained in

the current Future Years Defense Plan, and, if not, whether
FY98 MISCELLANEOUS BASE CLOSURE PROVISIONS 848

the Secretary will recommend modifications in future defense

spending in order to accommodate such costs and savings.

(c) METHOD OF PRESENTING INFORMATION.—The statement and

comparison required by paragraphs (1) and (2) of subsection (b)

shall be set forth by Armed Force, type of facility, and fiscal year,

and include the following:

(1) Operation and maintenance costs, including costs associated with expanded operations and support, maintenance of

property, administrative support, and allowances for housing

at military installations to which functions are transferred as

a result of the closure or realignment of other installations.

(2) Military construction costs, including costs associated

with rehabilitating, expanding, and constructing facilities to receive personnel and equipment that are transferred to military

installations as a result of the closure or realignment of other

installations.

(3) Environmental cleanup costs, including costs associated

with assessments and restoration.

(4) Economic assistance costs, including—

(A) expenditures on Department of Defense demonstration projects relating to economic assistance;

(B) expenditures by the Office of Economic Adjustment; and

(C) to the extent available, expenditures by the Economic Development Administration, the Federal Aviation

Administration, and the Department of Labor relating to

economic assistance.

(5) To the extent information is available, unemployment

compensation costs, early retirement benefits (including benefits paid under section 5597 of title 5, United States Code), and

worker retraining expenses under the Priority Placement Program, title I of the Workforce Investment Act of 1998, and any

other federally funded job training program.

(6) Costs associated with military health care.

(7) Savings attributable to changes in military force

structure.

(8) Savings due to lower support costs with respect to military installations that are closed or realigned.

(d) DEADLINE.—The Secretary shall submit the report under

subsection (a) not later than the date on which the President submits to Congress the budget for fiscal year 2000 under section

1105(a) of title 31, United States Code.

(e) REVIEW.—The Congressional Budget Office and the Comptroller General shall conduct a review of the report prepared under

subsection (a).

(f) PROHIBITION ON USE OF FUNDS.—Except as necessary to

prepare the report required under subsection (a), no funds authorized to be appropriated or otherwise made available to the Department of Defense by this Act or any other Act may be used for the

purposes of planning for, or collecting data in anticipation of, an

authorization providing for procedures under which the closure and

realignment of military installations may be accomplished, until

the later of—
849 FY98 MISCELLANEOUS BASE CLOSURE PROVISIONS

(1) the date on which the Secretary submits the report required by subsection (a); and

(2) the date on which the Congressional Budget Office and

the Comptroller General complete a review of the report under

subsection (e).

(g) SENSE OF CONGRESS.—It is the sense of the Congress that—

(1) the Secretary should develop a system having the capacity to quantify the actual costs and savings attributable to

the closure and realignment of military installations pursuant

to the base closure process; and

(2) the Secretary should develop the system in expedient

fashion, so that the system may be used to quantify costs and

savings attributable to the 1995 base closure round.

* * * * * * *

SEC. 2826. PROHIBITION AGAINST CERTAIN CONVEYANCES OF PROPERTY AT NAVAL STATION, LONG BEACH, CALIFORNIA.

(a) PROHIBITION AGAINST DIRECT CONVEYANCE.—In disposing

of real property in connection with the closure of Naval Station,

Long Beach, California, under the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510;

10 U.S.C. 2687 note), the Secretary of the Navy may not convey

any portion of the property (by sale, lease, or other method) to the

China Ocean Shipping Company or any legal successor or subsidiary of that Company (in this section referred to as ‘‘COSCO’’).

(b) PROHIBITION AGAINST INDIRECT CONVEYANCE.—The Secretary of the Navy shall impose as a condition on each conveyance

of real property located at Naval Station, Long Beach, California,

the requirement that the property may not be subsequently conveyed (by sale, lease, or other method) to COSCO.

(c) REVERSIONARY INTEREST.—If the Secretary of the Navy determines at any time that real property located at Naval Station,

Long Beach, California, and conveyed under the Defense Base Closure and Realignment Act of 1990 has been conveyed to COSCO in

violation of subsection (b) or is otherwise being used by COSCO in

violation of such subsection, all right, title, and interest in and to

the property shall revert to the United States, and the United

States shall have immediate right of entry thereon.

(d) NATIONAL SECURITY REPORT AND DETERMINATION.—Not

later than 30 days after the date of the enactment of this Act, the

Secretary of Defense and the Director of the Federal Bureau of Investigation shall separately submit to the President and the congressional defense committees a report regarding the potential national security implications of conveying property described in subsection (a) to COSCO. Each report shall specifically identify any increased risk of espionage, arms smuggling, or other illegal activities that could result from a conveyance to COSCO and recommend

appropriate action to address any such risk.
Sec. 2814 MISCELLANEOUS BASE CLOSURE PROVISIONS 850

c. Government Rental of Facilities Located on Closed

Military Installations

(Section 2814 of the Military Construction Authorization Act for Fiscal Year 1995

(division B of Public Law 103–337, approved Oct. 5, 1994))

SEC. 2814. ø10 U.S.C. 2687 note¿ GOVERNMENT RENTAL OF FACILITIES

LOCATED ON CLOSED MILITARY INSTALLATIONS.

(a) AUTHORIZATION TO RENT BASE CLOSURE PROPERTIES.—To

promote the rapid conversion of military installations that are

closed pursuant to a base closure law, the Administrator of the

General Services may give priority consideration, when leasing

space in accordance with chapter 5 or 33 of title 40, United States

Code, to facilities of such an installation that have been acquired

by a non-Federal entity.

(b) BASE CLOSURE LAW DEFINED.—For purposes of this section,

the term ‘‘base closure law’’ means each of the following:

(1) The Defense Base Closure and Realignment Act of 1990

(part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687

note).

(2) Title II of the Defense Authorization Amendments and

Base Closure and Realignment Act (Public Law 100–526; 10

U.S.C. 2687 note).

d. Military Construction Authorization Act for Fiscal Year

1994

(Division B of Public Law 103–160, approved Nov. 30, 1993)

TITLE XXIX—DEFENSE BASE CLOSURE AND

REALIGNMENT

Subtitle A—Base Closure Community Assistance

SEC. 2901. ø10 U.S.C. 2687 note¿ FINDINGS.

Congress makes the following findings:

(1) The closure and realignment of military installations

within the United States is a necessary consequence of the end

of the Cold War and of changed United States national security requirements.

(2) A military installation is a significant source of employment for many communities, and the closure or realignment of

an installation may cause economic hardship for such communities.

(3) It is in the interest of the United States that the Federal Government facilitate the economic recovery of communities that experience adverse economic circumstances as a result of the closure or realignment of a military installation.

(4) It is in the interest of the United States that the Federal Government assist communities that experience adverse

economic circumstances as a result of the closure of military

installations by working with such communities to identify and

implement means of reutilizing or redeveloping such installations in a beneficial manner or of otherwise revitalizing such

communities and the economies of such communities.
851 FY94 MISCELLANEOUS BASE CLOSURE PROVISIONS

(5) The Federal Government may best identify and implement such means by requiring that the head of each department or agency of the Federal Government having jurisdiction

over a matter arising out of the closure of a military installation under a base closure law, or the reutilization and redevelopment of such an installation, designate for each installation

to be closed an individual in such department or agency who

shall provide information and assistance to the transition coordinator for the installation designated under section 2915 on

the assistance, programs, or other activities of such department or agency with respect to the closure or reutilization and

redevelopment of the installation.

(6) The Federal Government may also provide such assistance by accelerating environmental restoration at military installations to be closed, and by closing such installations, in a

manner that best ensures the beneficial reutilization and redevelopment of such installations by such communities.

(7) The Federal Government may best contribute to such

reutilization and redevelopment by making available real and

personal property at military installations to be closed to communities affected by such closures on a timely basis, and, if appropriate, at less than fair market value.

* * * * * * *

SEC. 2903. AUTHORITY TO TRANSFER PROPERTY AT CLOSED INSTALLATIONS TO AFFECTED COMMUNITIES AND STATES.

* * * * * * *

(c) CONSIDERATION OF ECONOMIC NEEDS.—In order to maximize the local and regional benefit from the reutilization and redevelopment of military installations that are closed, or approved for

closure, pursuant to the operation of a base closure law, the Secretary of Defense shall consider locally and regionally delineated

economic development needs and priorities into the process by

which the Secretary disposes of real property and personal property

as part of the closure of a military installation under a base closure

law. In determining such needs and priorities, the Secretary shall

take into account the redevelopment plan developed for the military installation involved. The Secretary shall ensure that the

needs of the homeless in the communities affected by the closure

of such installations are taken into consideration in the redevelopment plan with respect to such installations.

(d) COOPERATION.—The Secretary of Defense shall cooperate

with the State in which a military installation referred to in subsection (c) is located, with the redevelopment authority with respect to the installation, and with local governments and other interested persons in communities located near the installation in

implementing the entire process of disposal of the real property

and personal property at the installation.

* * * * * * *

SEC. 2910. IDENTIFICATION OF UNCONTAMINATED PROPERTY AT INSTALLATIONS TO BE CLOSED.

The identification by the Secretary of Defense required under

section 120(h)(4)(A) of the Comprehensive Environmental Re-
FY94 MISCELLANEOUS BASE CLOSURE PROVISIONS 852

sponse, Compensation, and Liability Act of 1980 (42 U.S.C.

9620(h)(4)(A)), and the concurrence required under section

120(h)(4)(B) of such Act, shall be made not later than the earlier

of—

(1) the date that is 9 months after the date of the submittal, if any, to the transition coordinator for the installation

concerned of a specific use proposed for all or a portion of the

real property of the installation; or

(2) the date specified in section 120(h)(4)(C)(iii) of such

Act.

SEC. 2911. ø10 U.S.C. 2687 note¿ COMPLIANCE WITH CERTAIN ENVIRONMENTAL REQUIREMENTS RELATING TO CLOSURE OF

INSTALLATIONS.

Not later than 12 months after the date of the submittal to the

Secretary of Defense of a redevelopment plan for an installation approved for closure under a base closure law, the Secretary of Defense shall, to the extent practicable, complete any environmental

impact analyses required with respect to the installation, and with

respect to the redevelopment plan, if any, for the installation, pursuant to the base closure law under which the installation is

closed, and pursuant to the National Environmental Policy Act of

1969 (42 U.S.C. 4321 et seq.).

SEC. 2912. ø10 U.S.C. 2687 note¿ PREFERENCE FOR LOCAL AND SMALL

BUSINESSES.

(a) PREFERENCE REQUIRED.—In entering into contracts with

private entities as part of the closure or realignment of a military

installation under a base closure law, the Secretary of Defense

shall give preference, to the greatest extent practicable, to qualified

businesses located in the vicinity of the installation and to small

business concerns and small disadvantaged business concerns. Contracts for which this preference shall be given shall include contracts to carry out activities for the environmental restoration and

mitigation at military installations to be closed or realigned.

(b) DEFINITIONS.—In this section:

(1) The term ‘‘small business concern’’ means a business

concern meeting the requirements of section 3 of the Small

Business Act (15 U.S.C. 632).

(2) The term ‘‘small disadvantaged business concern’’

means the business concerns referred to in section 8(d)(1) of

such Act (15 U.S.C. 637(d)(1)).

(3) The term ‘‘base closure law’’ includes section 2687 of

title 10, United States Code.

* * * * * * *

SEC. 2914. CLARIFICATION OF UTILIZATION OF FUNDS FOR COMMUNITY ECONOMIC ADJUSTMENT ASSISTANCE.

(a) UTILIZATION OF FUNDS.—Subject to subsection (b), funds

made available to the Economic Development Administration for

economic adjustment assistance under section 4305 of the National

Defense Authorization Act for Fiscal Year 1993 (Public Law 102–

484; 106 Stat. 2700) may by utilized by the administration for administrative activities in support of the provision of such assistance.
853 FY94 MISCELLANEOUS BASE CLOSURE PROVISIONS

(b) LIMITATION.—Not more than three percent of the funds referred to in subsection (a) may be utilized by the administration for

the administrative activities referred to in such subsection.

SEC. 2915. ø10 U.S.C. 2687 note¿ TRANSITION COORDINATORS FOR ASSISTANCE TO COMMUNITIES AFFECTED BY THE CLOSURE

OF INSTALLATIONS.

(a) IN GENERAL.—The Secretary of Defense shall designate a

transition coordinator for each military installation to be closed

under a base closure law. The transition coordinator shall carry out

the activities for such coordinator set forth in subsection (c).

(b) TIMING OF DESIGNATION.—A transition coordinator shall be

designated for an installation under subsection (a) as follows:

(1) Not later than 15 days after the date of approval of closure of the installation.

(2) In the case of installations approved for closure under

a base closure law before the date of the enactment of this Act,

not later than 15 days after such date of enactment.

(c) RESPONSIBILITIES.—A transition coordinator designated

with respect to an installation shall—

(1) encourage, after consultation with officials of Federal

and State departments and agencies concerned, the development of strategies for the expeditious environmental cleanup

and restoration of the installation by the Department of Defense;

(2) assist the Secretary of the military department concerned in designating real property at the installation that has

the potential for rapid and beneficial reuse or redevelopment

in accordance with the redevelopment plan for the installation;

(3) assist such Secretary in identifying strategies for accelerating completion of environmental cleanup and restoration of

the real property designated under paragraph (2);

(4) assist such Secretary in developing plans for the closure of the installation that take into account the goals set

forth in the redevelopment plan for the installation;

(5) assist such Secretary in developing plans for ensuring

that, to the maximum extent practicable, the Department of

Defense carries out any activities at the installation after the

closure of the installation in a manner that takes into account,

and supports, the redevelopment plan for the installation;

(6) assist the Secretary of Defense in making determinations with respect to the transferability of property at the installation under section 204(b)(5) of the Defense Authorization

Amendments and Base Closure and Realignment Act (title II

of Public Law 100–526; 10 U.S.C. 2687 note), as added by section 2904(a) of this Act, and under section 2905(b)(5) of the Defense Base Closure and Realignment Act of 1990 (part A of

title XXIX of Public Law 101–510; 10 U.S.C. 2687 note), as

added by section 2904(b) of this Act, as the case may be;

(7) assist the local redevelopment authority with respect to

the installation in identifying real property or personal property at the installation that may have significant potential for

reuse or redevelopment in accordance with the redevelopment

plan for the installation;
FY94 MISCELLANEOUS BASE CLOSURE PROVISIONS 854

(8) assist the Office of Economic Adjustment of the Department of Defense and other departments and agencies of the

Federal Government in coordinating the provision of assistance

under transition assistance and transition mitigation programs

with community redevelopment activities with respect to the

installation;

(9) assist the Secretary of the military department concerned in identifying property located at the installation that

may be leased in a manner consistent with the redevelopment

plan for the installation; and

(10) assist the Secretary of Defense in identifying real

property or personal property at the installation that may be

utilized to meet the needs of the homeless by consulting with

the Secretary of Housing and Urban Development and the local

lead agency of the homeless, if any, referred to in section

210(b) of the McKinney-Vento Homeless Assistance Act (42

U.S.C. 11320(b)) for the State in which the installation is located.

* * * * * * *

SEC. 2918. ø10 U.S.C. 2687 note¿ DEFINITIONS.

(a) SUBTITLE A OF TITLE XXIX.—In this subtitle:

(1) The term ‘‘base closure law’’ means the following:

(A) The provisions of title II of the Defense Authorization Amendments and Base Closure and Realignment Act

(Public Law 100–526; 10 U.S.C. 2687 note).

(B) The Defense Base Closure and Realignment Act of

1990 (part A of title XXIX of Public Law 101–510; 10

U.S.C. 2687 note).

(2) The term ‘‘date of approval’’, with respect to a closure

or realignment of an installation, means the date on which the

authority of Congress to disapprove a recommendation of closure or realignment, as the case may be, of such installation

under the applicable base closure law expires.

(3) The term ‘‘redevelopment authority’’, in the case of an

installation to be closed under a base closure law, means any

entity (including an entity established by a State or local government) recognized by the Secretary of Defense as the entity

responsible for developing the redevelopment plan with respect

to the installation and for directing the implementation of such

plan.

(4) The term ‘‘redevelopment plan’’, in the case of an installation to be closed under a base closure law, means a plan

that—

(A) is agreed to by the redevelopment authority with

respect to the installation; and

(B) provides for the reuse or redevelopment of the real

property and personal property of the installation that is

available for such reuse and redevelopment as a result of

the closure of the installation.

* * * * * * *
855 FY92 MISCELLANEOUS BASE CLOSURE PROVISIONS

Subtitle B—Other Matters

* * * * * * *

SEC. 2922. ø10 U.S.C. 2687 note¿ LIMITATION ON EXPENDITURE OF

FUNDS FROM THE DEFENSE BASE CLOSURE ACCOUNT

1990 FOR MILITARY CONSTRUCTION IN SUPPORT OF

TRANSFERS OF FUNCTIONS.

(a) LIMITATION.—If the Secretary of Defense recommends to

the Defense Base Closure and Realignment Commission pursuant

to section 2903(c) of the 1990 base closure Act that an installation

be closed or realigned, the Secretary identifies in documents submitted to the Commission one or more installations to which a

function performed at the recommended installation would be

transferred, and the recommended installation is closed or realigned pursuant to such Act, then, except as provided in subsection (b), funds in the Defense Base Closure Account 1990 may

not be used for military construction in support of the transfer of

that function to any installation other than an installation so identified in such documents.

(b) EXCEPTION.—The limitation in subsection (a) ceases to be

applicable to military construction in support of the transfer of a

function to an installation on the 60th day following the date on

which the Secretary submits to the Committee on Armed Services

of the Senate and the Committee on Armed Services of the House

of Representatives a notification of the proposed transfer that—

(1) identifies the installation to which the function is to be

transferred; and

(2) includes the justification for the transfer to such installation.

(c) DEFINITIONS.—In this section:

(1) The term ‘‘1990 base closure Act’’ means the Defense

Base Closure and Realignment Act of 1990 (part A of title

XXIX of Public Law 101–510; 10 U.S.C. 2687 note).

(2) The term ‘‘Defense Base Closure Account 1990’’ means

the account established under section 2906 of the 1990 base

closure Act.

e. Disposition of Facilities of Depository Institutions on

Military Installations to be Closed

(Section 2825 of the Military Construction Authorization Act for Fiscal Year 1992

(division B of Public Law 102–190, approved Dec. 5, 1991))

TITLE XXVIII—GENERAL PROVISIONS

* * * * * * *

Part B—Defense Base Closure and Realignment

* * * * * * *

SEC. 2825. ø10 U.S.C. 2687 note¿ DISPOSITION OF FACILITIES OF DEPOSITORY INSTITUTIONS ON MILITARY INSTALLATIONS

TO BE CLOSED.

(a) AUTHORITY TO CONVEY FACILITIES.—(1) Subject to subsection (c) and notwithstanding any other provision of law, the Secretary of the military department having jurisdiction over a mili-
FY92 MISCELLANEOUS BASE CLOSURE PROVISIONS 856

tary installation being closed pursuant to a base closure law may

convey all right, title, and interest of the United States in a facility

located on that installation to a depository institution that—

(A) conducts business in the facility; and

(B) constructed or substantially renovated the facility

using funds of the depository institution.

(2) In the case of the conveyance under paragraph (1) of a facility that was not constructed by the depository institution but was

substantially renovated by the depository institution, the Secretary

shall require the depository institution to pay an amount determined by the Secretary to be equal to the value of the facility in

the absence of the renovations.

(b) AUTHORITY TO CONVEY LAND.—As part of the conveyance of

a facility to a depository institution under subsection (a), the Secretary of the military department concerned shall permit the depository institution to purchase the land upon which that facility is located. The Secretary shall offer the land to the depository institution before offering such land for sale or other disposition to any

other entity. The purchase price shall be not less than the fair market value of the land, as determined by the Secretary.

(c) LIMITATION.—The Secretary of a military department may

not convey a facility to a depository institution under subsection (a)

if the Secretary determines that the operation of a depository institution at such facility is inconsistent with the redevelopment plan

with respect to the installation.

(d) BASE CLOSURE LAW DEFINED.—For purposes of this section,

the term ‘‘base closure law’’ means the following:

(1) The Defense Base Closure and Realignment Act of 1990

(part A of title XXIX of Public Law 101–510; 104 Stat. 1808;

10 U.S.C. 2687 note).

(2) Title II of the Defense Authorization Amendments and

Base Closure and Realignment Act (Public Law 100–526; 102

Stat. 2627; 10 U.S.C. 2687 note).

(3) Section 2687 of title 10, United States Code.

(4) Any other similar law enacted after the date of the enactment of this Act.

(e) DEPOSITORY INSTITUTION DEFINED.—For purposes of this

section, the term ‘‘depository institution’’ has the meaning given

that term in section 19(b)(1)(A) of the Federal Reserve Act (12

U.S.C. 461(b)(1)(A)).
857

1The Federal Property and Administrative Services Act of 1949 was repealed as part of the

codification of title 40, United States Code, by Public Law 107–217. Former section 202 of that

Act is now section 524 of title 40.

5. USE OF SURPLUS PROPERTY TO ASSIST HOMELESS

a. Section 501 of the McKinney-Vento Homeless Assistance

Act

TITLE V—IDENTIFICATION AND USE OF

SURPLUS FEDERAL PROPERTY

SEC. 501. ø42 U.S.C. 11411¿ USE OF UNUTILIZED AND UNDERUTILIZED

PUBLIC BUILDINGS AND REAL PROPERTY TO ASSIST THE

HOMELESS.

(a) IDENTIFICATION OF SUITABLE PROPERTY.—The Secretary of

Housing and Urban Development shall, on a quarterly basis, request information from each landholding agency regarding Federal

public buildings and other Federal real properties (including fixtures) that are excess property or surplus property or that are described as unutilized or underutilized in surveys by the heads of

landholding agencies under section 202(b)(2) of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 483(b)(2)).

No later than 25 days after receiving a request from the Secretary,

the head of each landholding agency shall transmit such information to the Secretary. No later than 30 days after receiving such

information, the Secretary shall identify which of those buildings

and other properties are suitable for use to assist the homeless. 1

(b) AVAILABILITY OF PROPERTY.—(1) The Secretary shall

promptly notify each Federal agency with respect to any property

of that agency that the Secretary has identified under subsection

(a). No later than 45 days after receipt of such a notice, the head

of the appropriate landholding agency shall transmit to the Secretary the agency’s response to property identifications contained

in such notification, which shall include—

(A) in the case of unutilized or underutilized property—

(i) a statement of intention to determine the property

excess to the agency’s needs;

(ii) a statement of intention to make the property

available for use to assist the homeless; or

(iii) a statement of the reasons (including a full explanation of the need) the property cannot be determined excess to the agency’s needs or made available for use to assist the homeless; and

(B) in the case of excess property—
Sec. 501 USE OF SURPLUS PROPERTY TO ASSIST HOMELESS 858

1The Federal Property and Administrative Services Act of 1949 was repealed as part of the

codification of title 40, United States Code, by Public Law 107–217. Former section 203(k) of

that Act is now section 550 of title 40.

(i) a statement that there is no other compelling Federal need for the property and, therefore, the property will

be determined surplus; or

(ii) a statement that there is further and compelling

Federal need for the property (including a full explanation

of such need) and that, therefore, the property is not presently available for use to assist the homeless.

(2)(A) All properties identified by the Secretary under subsection (a) shall be available for application—

(i) in the case of property other than surplus property, for

use to assist the homeless in accordance with the provisions of

this section; and

(ii) in the case of surplus property, for use to assist the

homeless either in accordance with this section or as a public

health use in accordance with paragraphs (1) and (4) of section

203(k) of the Federal Property and Administrative Services Act

of 1949 (40 U.S.C. 484(k) (1) and (4)). 1

(3) The Secretary shall maintain a written public record of—

(A) the identification of buildings and other properties by

the Secretary under this subsection and the reasons for such

identifications; and

(B) the responses of landholding agencies to such identifications.

(c) PUBLICATION OF PROPERTIES.—(1)(A) No later than 15 days

after the last day of the 45-day period provided for under subsection (b)(1), the Secretary shall publish in the Federal Register—

(i) a list of all properties reviewed by the Secretary under

subsection (a); and

(ii) a list of all properties that are available under subsection (b)(2) for application for use to assist the homeless.

(B) Each publication of properties shall include a description

and the location of each property (including the address and zip

code) and the current classification of each property as unutilized,

underutilized, excess property, or surplus property.

(C) The Secretary shall make available to the public upon request all information in the possession of the Department of Housing and Urban Development (other than valuation information), regardless of format, about all properties reviewed and not identified

as being suitable for use to assist the homeless, including the reasons such properties were not so identified.

(D) The Secretary shall publish separately, on an annual basis,

all properties identified as being suitable for use to assist the

homeless, but reported to be unavailable, and the reasons such

properties were unavailable.

(2)(A) No later than 15 days after the last day of the 45-day

period provided for under subsection (b)(1), the Secretary shall

transmit a copy of the list of available properties published under

paragraph (1)(A)(ii) to the Interagency Council on the Homeless.

The Council shall immediately distribute to all State and regional

homeless coordinators area-relevant portions of the list.
859 Sec. 501 USE OF SURPLUS PROPERTY TO ASSIST HOMELESS

(B) The Secretary, the Administrator, and the Secretary of

Health and Human Services shall make such efforts as are necessary to ensure the widest possible dissemination of the information on such list.

(C) The Secretary shall establish a toll-free number to provide

the public with specific information about properties on such list.

(3) The Secretary shall make available to the public upon request all information (other than valuation information) regardless

of format in the possession of the Department of Housing and

Urban Development about the properties published under paragraph (1)(A), including environmental assessment data. The Secretary shall maintain a current list of agency contacts for making

referrals of inquiries for information about specific properties.

(4)(A) On December 31 of each year, the head of each landholding agency shall report to the Secretary the current availability

status and the current classification of each property controlled by

the agency, that—

(i) was included in a list published in that year by the Secretary under paragraph (1)(A)(ii); and

(ii) remains available for application for use to assist the

homeless or has become available for application during that

year.

(B) No later than February 15 each year, the Secretary shall

publish in the Federal Register a list of all properties reported

under subparagraph (A) for the preceding year and the current

classification of the properties.

(C) For purposes of subparagraph (A), property shall not be

considered to remain available for application for use to assist the

homeless after the 60-day holding period provided under subsection

(d) if—

(i) an application for or written expression of interest in

the property is made under any law for use of the property for

any purpose; or

(ii) the Administrator receives a bona fide offer to purchase

the property or advertises for the sale of the property by public

auction.

(d) HOLDING PERIOD.—(1) Properties published under subsection (c)(1)(A)(ii) as available for application for use to assist the

homeless shall not be available for any other purpose for a period

of 60 days beginning on the date of such publication.

(2) If written notice of intent to apply for such a property for

use to assist the homeless is received by the Secretary of Health

and Human Services within the 60-day period described under

paragraph (1), such property may not be made available for any

other purpose until the date the Secretary of Health and Human

Services or other appropriate landholding agency has completed action on the application submitted under subsection (e) with respect

to that written notice of intent.

(3) Property that is reviewed by the Secretary under subsection

(a) and that is not identified by the Secretary as being suitable for

use to assist the homeless may not be made available for any other

purpose for 20 days after the determination of unsuitability to

allow for review of the determination at the request of the representative of the homeless. The Secretary shall disseminate imme-
Sec. 501 USE OF SURPLUS PROPERTY TO ASSIST HOMELESS 860

1The Federal Property and Administrative Services Act of 1949 was repealed as part of the

codification of title 40, United States Code, by Public Law 107–217. Provisions related to the

disposal of surplus property under section 203 of that Act can be found in subchapter III of

chapter 5 of title 40. 2The Federal Property and Administrative Services Act of 1949 was repealed as part of the

codification of title 40, United States Code, by Public Law 107–217. Former section 203(k) of

that Act is now section 550 of title 40.

diately this information to the regional offices of the Department

of Housing and Urban Development and to the Interagency Council

on the Homeless.

(4)(A) Written notice of intent to apply for a property published

under subsection (c)(1)(A)(ii) may be filed at any time after the 60-

day period described in paragraph (1) has expired. In such case, an

application submitted pursuant to the notice may be approved for

disposal for use to assist the homeless only if the property remains

available for application for use to assist the homeless. If the property remains available, the use to assist the homeless shall be

given priority of consideration over other competing disposal opportunities under section 203 of the Federal Property and

Administratives Services Act of 1949 (40 U.S.C. 484), except as provided in subsection (f)(3)(A). 1

(B) Surplus property for which an application has been approved shall be assigned promptly to the Secretary of Health and

Human Services for disposition in accordance with and subject to

subsection (f).

(e) APPLICATION FOR PROPERTY.—(1) A representative of the

homeless may submit an application to the Secretary of Health and

Human Services for any property that is published under subsection (c)(1)(A)(ii) as available for application for use to assist the

homeless.

(2) No later than 90 days after the submission of written notice

of intent to apply for a property, an applicant shall submit a complete application to the Secretary of Health and Human Services.

The Secretary of Health and Human Services shall, with the concurrence of the appropriate landholding agency, grant reasonable

extensions.

(3) No later than 25 days after receipt of a completed application, the Secretary of Health and Human Services shall review,

make all determinations, and complete all actions on the application. The Secretary of Health and Human Services shall maintain

a written public record of all actions taken in response to an application.

(f) MAKING PROPERTY AVAILABLE TO REPRESENTATIVES OF THE

HOMELESS.—(1) Subject to the provisions of this subsection, property for which the Secretary of Health and Human Services has approved an application under subsection (e) shall be made promptly

available by permit or lease, or by deed as a public health use

under paragraphs (1) and (4) of section 203(k) of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 484(k) (1)

and (4)), to the representative of the homeless that submitted the

application. 2

(2) Unutilized or underutilized property that is the subject of

an agency’s statement of intention under subsection (b)(1)(A)(ii)

shall be made promptly available by the appropriate landholding
861 Sec. 501 USE OF SURPLUS PROPERTY TO ASSIST HOMELESS

1The Federal Property and Administrative Services Act of 1949 was repealed as part of the

codification of title 40, United States Code, by Public Law 107–217. Former section 203 of that

Act is now subchapter III of chapter 5 of title 40. 2The Federal Property and Administrative Services Act of 1949 was repealed as part of the

codification of title 40, United States Code, by Public Law 107–217. Former section 203(k) of

that Act is now section 550 of chapter 5 of title 40.

agency to the approved applicant by lease or permit for a term of

not less than 1 year, unless the applicant requests a shorter term.

(3)(A) In disposing of surplus property by deed or lease under

section 203 of the Federal Property and Administrative Services

Act of 1949 (40 U.S.C. 484), the Administrator and the Secretary

of Health and Human Services shall give priority of consideration

to uses to assist the homeless, unless the Administrator or the Secretary of Health and Human Services determines that a competing

request for the property under section 203(k) of such Act is so meritorious and compelling as to outweigh the needs of the homeless. 1

(B) Whenever the Administrator of the Secretary of Health and

Human Services makes a determination under subparagraph (A),

the Administrator or the Secretary of Health and Human Services

shall transmit to the appropriate committees of the Congress an

explanatory statement detailing the need satisfied by conveyance of

the surplus property and the reasons for determining that such

need was so meritorious and compelling as to outweigh the needs

of the homeless.

(4) For any property made available by lease to a representative of the homeless before the date of the enactment of the Stewart B. McKinney Homeless Assistance Amendments Act of 1990,

the Secretary of Health and Human Services may, upon written request by the representative, convey such property by deed to the

representative in accordance with, and subject to the requirements

of, section 203(k) of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 484(k)). The lease term shall not be affected if a deed is not granted. 2

(g) RECORDS.—The Secretary shall maintain a written public

record of—

(1) the reasons for determinations of the Secretary under

this section that property is suitable or unsuitable for use to

assist the homeless; and

(2) the responses of landholding agencies under subsection

(b)(1).

(h) APPLICABILITY TO PROPERTY UNDER BASE CLOSURE PROCESS.—(1) The provisions of this section shall not apply to buildings

and property at military installations that are approved for closure

under the Defense Base Closure and Realignment Act of 1990 (part

A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note) after

the date of the enactment of this subsection.

(2) For provisions relating to the use to assist the homeless of

buildings and property located at certain military installations approved for closure under such Act, or under title II of the Defense

Authorization Amendments and Base Closure and Realignment Act

(Public Law 100–526; 10 U.S.C. 2687 note), before such date, see

section 2(e) of Base Closure Community Redevelopment and Homeless Assistance Act of 1994.

(i) DEFINITIONS.—For purposes of this section—
Sec. 2 USE OF SURPLUS PROPERTY TO ASSIST HOMELESS 862

1The Federal Property and Administrative Services Act of 1949 was repealed as part of the

codification of title 40, United States Code, by Public Law 107–217. The definitions of ‘‘excess

property’’ and ‘‘surplus property’’ are now found in section 102 of title 40. 2 In subsection (e), the reference to ‘‘this Act’’ means the Base Closure Community Redevelopment and Homeless Assistance Act of 1994, which was enacted on October 25, 1994.

(1) the term ‘‘Administrator’’ means the Administrator of

General Services;

(2) each of the terms ‘‘excess property’’ and ‘‘surplus property’’ has the meaning given that term under section 3 of the

Federal Property and Administrative Services Act of 1949 (40

U.S.C. 472); 1

(3) the term ‘‘landholding agency’’ means a Federal department or agency with statutory to control real property;

(4) the term ‘‘representative of the homeless’’ means a

State or local government agency, or private nonprofit organization, which provides services to the homeless; and

(5) the term ‘‘Secretary’’ means the Secretary of Housing

and Urban Development, except as otherwise provided.

b. Section 2(e) of the Base Closure Community

Redevelopment and Homeless Assistance Act of 1994

(Public Law 103–421; 108 Stat. 4352; 10 U.S.C. 2687 note)

SEC. 2. DISPOSAL OF BUILDINGS AND PROPERTY AT MILITARY INSTALLATIONS APPROVED FOR CLOSURE.

* * * * * * *

(e) APPLICABILITY TO INSTALLATIONS APPROVED FOR CLOSURE

BEFORE ENACTMENT OF ACT.—(1)(A) Notwithstanding any provision of the 1988 base closure Act or the 1990 base closure Act, as

such provision was in effect on the day before the date of the enactment of this Act 2, and subject to subparagraphs (B) and (C), the

use to assist the homeless of building and property at military installations approved for closure under the 1988 base closure Act or

the 1990 base closure Act, as the case may be, before such date

shall be determined in accordance with the provisions of paragraph

(7) of section 2905(b) of the 1990 base closure Act, as amended by

subsection (a), in lieu of the provisions of the 1988 base closure Act

or the 1990 base closure Act that would otherwise apply to the installations.

(B)(i) The provisions of such paragraph (7) shall apply to an installation referred to in subparagraph (A) only if the redevelopment

authority for the installation submits a request to the Secretary of

Defense not later than 60 days after the date of the enactment of

this Act.

(ii) In the case of an installation for which no redevelopment

authority exists on the date of the enactment of this Act, the chief

executive officer of the State in which the installation is located

shall submit the request referred to in clause (i) and act as the redevelopment authority for the installation.

(C) The provisions of such paragraph (7) shall not apply to any

buildings or property at an installation referred to in subparagraph

(A) for which the redevelopment authority submits a request re-
863 Sec. 2 USE OF SURPLUS PROPERTY TO ASSIST HOMELESS

ferred to in subparagraph (B) within the time specified in such subparagraph (B) if the buildings or property, as the case may be,

have been transferred or leased for use to assist the homeless

under the 1988 base closure Act or the 1990 base closure Act, as

the case may be, before the date of the enactment of this Act.

(2) For purposes of the application of such paragraph (7) to the

buildings and property at an installation, the date on which the

Secretary receives a request with respect to the installation under

paragraph (1) shall be treated as the date on which the Secretary

of Defense completes the final determination referred to in subparagraph (B) of such paragraph (7).

(3) Upon receipt under paragraph (1)(B) of a timely request

with respect to an installation, the Secretary of Defense shall publish in the Federal Register and in a newspaper of general circulation in the communities in the vicinity of the installation information describing the redevelopment authority for the installation.

(4)(A) The Secretary of Housing and Urban Development and

the Secretary of Health and Human Services shall not, during the

60-day period beginning on the date of the enactment of this Act,

carry out with respect to any military installation approved for closure under the 1988 base closure Act or the 1990 base closure Act

before such date any action required of such Secretaries under the

1988 base closure Act or the 1990 base closure Act, as the case may

be, or under section 501 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11411).

(B)(i) Upon receipt under paragraph (1)(A) of a timely request

with respect to an installation, the Secretary of Defense shall notify

the Secretary of Housing and Urban Development and the Secretary of Health and Human Services that the disposal of buildings

and property at the installation shall be determined under such

paragraph (7) in accordance with this subsection.

(ii) Upon receipt of a notice with respect to an installation

under this subparagraph, the requirements, if any, of the Secretary

of Housing and Urban Development and the Secretary of Health

and Human Services with respect to the installation under the provisions of law referred to in subparagraph (A) shall terminate.

(iii) Upon receipt of a notice with respect to an installation

under this subparagraph, the Secretary of Health and Human

Services shall notify each representative of the homeless that submitted to that Secretary an application to use buildings or property

at the installation to assist the homeless under the 1988 base closure Act or the 1990 base closure Act, as the case may be, that the

use of buildings and property at the installation to assist the homeless shall be determined under such paragraph (7) in accordance

with this subsection.

(5) In preparing a redevelopment plan for buildings and property at an installation covered by such paragraph (7) by reason of

this subsection, the redevelopment authority concerned shall—

(A) consider and address specifically any applications for

use of such buildings and property to assist the homeless that

were received by the Secretary of Health and Human Services

under the 1988 base closure Act or the 1990 base closure Act,

as the case may be, before the date of the enactment of this

Act and are pending with that Secretary on that date; and
Sec. 2 USE OF SURPLUS PROPERTY TO ASSIST HOMELESS 864

(B) in the case of any application by representatives of the

homeless that was approved by the Secretary of Health and

Human Services before the date of enactment of this Act, ensure that the plan adequately addresses the needs of the homeless identified in the application by providing such representatives of the homeless with—

(i) properties, on or off the installation, that are substantially equivalent to the properties covered by the application;

(ii) sufficient funding to secure such substantially

equivalent properties;

(iii) services and activities that meet the needs identified in the application; or

(iv) a combination of the properties, funding, and services and activities described in clauses (i), (ii), and (iii).

(6) In the case of an installation to which the provisions of

such paragraph (7) apply by reason of this subsection, the date

specified by the redevelopment authority for the installation under

subparagraph (D) of such paragraph (7) shall be not less than 1

month and not more than 6 months after the date of the submittal

of the request with respect to the installation under paragraph

(1)(B).

(7) For purposes of this subsection:

(A) The term ‘‘1988 base closure Act’’ means title II of the

Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note).

(B) The term ‘‘1990 base closure Act’’ means the Defense

Base Closure and Realignment Act of 1990 (part A of title

XXIX of Public Law 101–510; 10 U.S.C. 2687 note).
865

6. ARMED FORCES RETIREMENT HOME

a. Armed Forces Retirement Home Act of 1991

(Title XV of Public Law 101–510; Nov. 5, 1990)

TITLE XV—ARMED FORCES RETIREMENT HOME

SEC. 1501. ø24 U.S.C 401 note¿ SHORT TITLE

(a) SHORT TITLE.—This title may be cited as the ‘‘Armed Forces

Retirement Home Act of 1991’’.

(b) TABLE OF CONTENTS.—The table of contents for this title is

as follows:

Sec. 1501. Short title; table of contents.

Sec. 1502. Definitions.

PART A—ESTABLISHMENT AND OPERATION OF RETIREMENT HOME

Sec. 1511. Establishment of the Armed Forces Retirement Home.

Sec. 1512. Residents of Retirement Home.

Sec. 1513. Services provided residents.

Sec. 1514. Fees paid by residents.

Sec. 1515. Chief Operating Officer.

Sec. 1516. Local Boards of Trustees.

Sec. 1517. Directors, Deputy Directors, Associate Directors, and staff of facilities.

Sec. 1518. Inspection of Retirement Home.

Sec. 1519. Armed Forces Retirement Home Trust Fund.

Sec. 1520. Disposition of effects of deceased persons; unclaimed property.

Sec. 1521. Payment of residents for services.

Sec. 1522. Authority to accept certain uncompensated services.

Sec. 1523. Preservation of historic buildings and grounds at the Armed Forces Retirement Home—Washington.

PART B—TRANSITIONAL PROVISIONS

Sec. 1531. Temporary Continuation of Armed Forces Retirement Home Board.

Sec. 1532. Directors of Facilities.

Sec. 1533. Temporary Continuation of Incumbent Deputy Directors.

SEC. 1502. ø24 U.S.C. 401¿ DEFINITIONS

For purposes of this title:

(1) The term ‘‘Retirement Home’’ includes the institutions

established under section 1511, as follows:

(A) The Armed Forces Retirement Home—Washington.

(B) The Armed Forces Retirement Home—Gulfport.

(2) The term ‘‘Local Board’’ means a Local Board of Trustees established under section 1516.

(3) The terms ‘‘Armed Forces Retirement Home Trust

Fund’’ and ‘‘Fund’’ mean the Armed Forces Retirement Home

Trust Fund established under section 1519(a).

(4) The term ‘‘Armed Forces’’ does not include the Coast

Guard when it is not operating as a service in the Navy.

(5) The term ‘‘chief personnel officers’’ means—
Sec. 1511 ARMED FORCES RETIREMENT HOME 866

(A) the Deputy Chief of Staff for Personnel of the

Army;

(B) the Chief of Naval Personnel;

(C) the Deputy Chief of Staff for Personnel of the Air

Force; and

(D) the Deputy Commandant of the Marine Corps for

Manpower and Reserve Affairs.

(6) The term ‘‘senior noncommissioned officers’’ means the

following:

(A) The Sergeant Major of the Army.

(B) The Master Chief Petty Officer of the Navy.

(C) The Chief Master Sergeant of the Air Force.

(D) The Sergeant Major of the Marine Corps.

Part A—Establishment and Operation of Retirement Home

SEC. 1511. ø24 U.S.C. 411¿ ESTABLISHMENT OF THE ARMED FORCES

RETIREMENT HOME.

(a) INDEPENDENT ESTABLISHMENT.—The Armed Forces Retirement Home is an independent establishment in the executive

branch.

(b) PURPOSE.—The purpose of the Retirement Home is to provide, through the Armed Forces Retirement Home—Washington

and the Armed Forces Retirement Home—Gulfport, residences and

related services for certain retired and former members of the

Armed Forces.

(c) FACILITIES.—(1) Each facility of the Retirement Home referred to in paragraph (2) is a separate establishment of the Retirement Home.

(2) The United States Soldiers’ and Airmen’s Home is hereby

redesignated as the Armed Forces Retirement Home—Washington.

The Naval Home is hereby redesignated as the Armed Forces Retirement Home—Gulfport.

(d) OPERATION.—(1) The Chief Operating Officer of the Armed

Forces Retirement Home is the head of the Retirement Home. The

Chief Operating Officer is subject to the authority, direction, and

control of the Secretary of Defense.

(2) Each facility of the Retirement Home shall be maintained

as a separate establishment of the Retirement Home for administrative purposes and shall be under the authority, direction, and

control of the Director of that facility. The Director of each facility

of the Retirement Home is subject to the authority, direction, and

control of the Chief Operating Officer.

(e) PROPERTY AND FACILITIES.—(1) The Retirement Home shall

include such property and facilities as may be acquired under paragraph (2) or accepted under section 1515(f) for inclusion in the Retirement Home.

(2) The Secretary of Defense may acquire, for the benefit of the

Retirement Home, property and facilities for inclusion in the Retirement Home.

(3) The Secretary of Defense may dispose of any property of the

Retirement Home, by sale, lease, or otherwise, that the Secretary

determines is excess to the needs of the Retirement Home. The proceeds from such a disposal of property shall be deposited in the

Armed Forces Retirement Home Trust Fund. No such disposal of

real property shall be effective earlier than 120 days after the date
867 Sec. 1512 ARMED FORCES RETIREMENT HOME

on which the Secretary transmits a notification of the proposed disposal to the Committees on Armed Services of the Senate and the

House of Representatives.

(f) DEPARTMENT OF DEFENSE SUPPORT.—The Secretary of Defense may make available from the Department of Defense to the

Retirement Home, on a nonreimbursable basis, administrative support and office services, legal and policy planning assistance, access

to investigative facilities of the Inspector General of the Department of Defense and of the military departments, and any other

support necessary to enable the Retirement Home to carry out its

functions under this title.

(g) ACCREDITATION.—The Chief Operating Officer shall endeavor to secure for each facility of the Retirement Home accreditation

by a nationally recognized civilian accrediting organization, such as

the Continuing Care Accreditation Commission and the Joint Commission for Accreditation of Health Organizations.

(h) ANNUAL REPORT.—The Secretary of Defense shall transmit

to Congress an annual report on the financial and other affairs of

the Retirement Home for each fiscal year.

SEC. 1512. ø24 U.S.C. 412¿ RESIDENTS OF RETIREMENT HOME

(a) PERSONS ELIGIBLE TO BE RESIDENTS.—Except as provided

in subsection (b), the following persons who served as members of

the Armed Forces, at least one-half of whose service was not active

commissioned service (other than as a warrant officer or limitedduty officer), are eligible to become residents of the Retirement

Home:

(1) Persons who—

(A) are 60 years of age or over; and

(B) were discharged or released from service in the

Armed Forces under honorable conditions after 20 or more

years of active service.

(2) Persons who are determined under rules prescribed by

the Chief Operating Officer to be incapable of earning a livelihood because of a service-connected disability incurred in the

line of duty in the Armed Forces.

(3) Persons who—

(A) served in a war theater during a time of war declared by Congress or were eligible for hostile fire special

pay under section 310 of title 37, United States Code;

(B) were discharged or released from service in the

Armed Forces under honorable conditions; and

(C) are determined under rules prescribed by the Chief

Operating Officer to be incapable of earning a livelihood

because of injuries, disease, or disability.

(4) Persons who—

(A) served in a women’s component of the Armed

Forces before the enactment of the Women’s Armed Services Integration Act of 1948; and

(B) are determined under rules prescribed by the Chief

Operating Officer to be eligible for admission because of

compelling personal circumstances.

(b) PERSONS INELIGIBLE TO BE RESIDENTS.—A person described in subsection (a) who has been convicted of a felony or is
Sec. 1513 ARMED FORCES RETIREMENT HOME 868

not free of drug, alcohol, or psychiatric problems shall be ineligible

to become a resident of the Retirement Home.

(c) ACCEPTANCE.—To apply for acceptance as a resident of a facility of the Retirement Home, a person eligible to be a resident

shall submit to the Director of that facility an application in such

form and containing such information as the Chief Operating Officer may require.

(d) PRIORITIES FOR ACCEPTANCE.—The Chief Operating Officer

shall establish a system of priorities for the acceptance of residents

so that the most deserving applicants will be accepted whenever

the number of eligible applicants is greater than the Retirement

Home can accommodate.

SEC. 1513. ø24 U.S.C. 413¿ SERVICES PROVIDED RESIDENTS

(a) SERVICES PROVIDED.—Except as provided in subsection (b),

a resident of the Retirement Home shall receive the services authorized by the Chief Operating Officer.

(b) MEDICAL AND DENTAL CARE.—The Retirement Home shall

provide for the overall health care needs of residents in a high

quality and cost-effective manner, including on site primary care,

medical care, and a continuum of long-term care services. Secondary and tertiary hospital care for residents that is not available

at a facility of the Retirement Home shall, to the extent available,

be obtained by agreement with the Secretary of Veterans Affairs or

the Secretary of Defense in a facility administered by such Secretary. The Retirement Home shall not be responsible for the costs

incurred for such care by a resident of the Retirement Home who

uses a private medical facility for such care. The Retirement Home

may not construct an acute care facility.

SEC. 1514. ø24 U.S.C. 414¿ FEES PAID BY RESIDENTS.

(a) MONTHLY FEES.—The Director of each facility of the Retirement Home shall collect a monthly fee from each resident of that

facility.

(b) DEPOSIT OF FEES.—The Directors shall deposit fees collected under subsection (a) in the Armed Forces Retirement Home

Trust Fund.

(c) FIXING FEES.—(1) The Chief Operating Officer, with the approval of the Secretary of Defense, shall from time to time prescribe the fees required by subsection (a). Changes to such fees

shall be based on the financial needs of the Retirement Home and

the ability of the residents to pay. A change of a fee may not take

effect until 120 days after the Secretary of Defense transmits a notification of the change to the Committees on Armed Services of the

Senate and the House of Representatives.

(2) The fee shall be fixed as a percentage of the monthly income and monthly payments (including Federal payments) received

by a resident. The percentage shall be the same for each facility

of the Retirement Home. The Secretary of Defense may make any

adjustment in a percentage that the Secretary determines appropriate.

(3) The fee shall be subject to a limitation on maximum monthly amount. The amount of the limitation shall be increased, effective on January 1 of each year, by the percentage of the increase

in retired pay and retainer pay that takes effect on the preceding

December 1 under subsection (b) of section 1401a of title 10, United
869 Sec. 1515 ARMED FORCES RETIREMENT HOME

States Code, without regard to paragraph (3) of such subsection.

The first increase in a limitation on maximum monthly amount

shall take effect on January 1, 2003.

(d) TRANSITIONAL FEE STRUCTURES.—(1) Until different fees

are prescribed and take effect under subsection (c), the percentages

and limitations on maximum monthly amount that are applicable

to fees charged residents of the Retirement Home are (subject to

any adjustment that the Secretary of Defense determines appropriate) as follows:

(A) For months beginning before January 1, 2002—

(i) for a permanent health care resident, 65 percent

(without limitation on maximum monthly amount); and

(ii) for a resident who is not a permanent health care

resident, 40 percent (without limitation on maximum

monthly amount).

(B) For months beginning after December 31, 2001—

(i) for an independent living resident, 35 percent, but

not to exceed $1,000 each month;

(ii) for an assisted living resident, 40 percent, but not

to exceed $1,500 each month; and

(iii) for a long-term care resident, 65 percent, but not

to exceed $2,500 each month.

(2) Notwithstanding the limitations on maximum monthly

amount prescribed under subsection (c) or set forth in paragraph

(1)(B), until the earlier of December 31, 2006, or the date on which

an independent living resident or assisted living resident of the

Armed Forces Retirement Home—Gulfport occupies a renovated

room at that facility, as determined by the Secretary of Defense,

the limitation on maximum monthly amount applicable to the resident for months beginning after December 31, 2001, shall be—

(A) in the case of an independent living resident, $800; and

(B) in the case of an assisted living resident, $1,300.

SEC. 1515. ø24 U.S.C. 415¿ CHIEF OPERATING OFFICER.

(a) APPOINTMENT.—(1) The Secretary of Defense shall appoint

the Chief Operating Officer of the Retirement Home.

(2) The Chief Operating Officer shall serve at the pleasure of

the Secretary of Defense.

(3) The Secretary of Defense shall evaluate the performance of

the Chief Operating Officer at least once each year.

(b) QUALIFICATIONS.—To qualify for appointment as the Chief

Operating Officer, a person shall—

(1) be a continuing care retirement community professional;

(2) have appropriate leadership and management skills;

and

(3) have experience and expertise in the operation and

management of retirement homes and in the provision of longterm medical care for older persons.

(c) RESPONSIBILITIES.—(1) The Chief Operating Officer shall be

responsible to the Secretary of Defense for the overall direction, operation, and management of the Retirement Home and shall report

to the Secretary on those matters.

(2) The Chief Operating Officer shall supervise the operation

and administration of the Armed Forces Retirement Home—Wash-
Sec. 1516 ARMED FORCES RETIREMENT HOME 870

ington and the Armed Forces Retirement Home—Gulfport, including the Local Boards of those facilities.

(3) The Chief Operating Officer shall perform the following duties:

(A) Issue, and ensure compliance with, appropriate rules

for the operation of the Retirement Home.

(B) Periodically visit, and inspect the operation of, the facilities of the Retirement Home.

(C) Periodically examine and audit the accounts of the Retirement Home.

(D) Establish any advisory body or bodies that the Chief

Operating Officer considers to be necessary.

(d) COMPENSATION.—(1) The Secretary of Defense may prescribe the pay of the Chief Operating Officer, except that the annual rate of basic pay, including locality pay, of the Chief Operating Officer may not exceed the annual rate of basic pay payable

for level III of the Executive Schedule under section 5314 of title

5, United States Code.

(2) In addition to basic pay and any locality pay prescribed for

the Chief Operating Officer, the Secretary may award the Chief

Operating Officer, not more than once each year, a bonus based on

the performance of the Chief Operating Officer for the year. The

Secretary shall prescribe the amount of any such bonus.

(3) The total amount of the basic pay and bonus paid the Chief

Operating Officer for a year under this section may not exceed the

annual rate of basic pay payable for level I of the Executive Schedule under section 5312 of title 5, United States Code.

(e) ADMINISTRATIVE STAFF.—(1) The Chief Operating Officer

may, subject to the approval of the Secretary of Defense, appoint

a staff to assist in the performance of the Chief Operating Officer’s

duties in the overall administration of the Retirement Home.

(2) The Chief Operating Officer shall prescribe the rates of pay

applicable to the members of the staff appointed under paragraph

(1), except that—

(A) a staff member who is a member of the Armed Forces

on active duty or who is a full-time officer or employee of the

United States may not receive additional pay by reason of service on the administrative staff; and

(B) the limitations in section 5373 of title 5, United States

Code, relating to pay set by administrative action, shall apply

to the rates of pay prescribed under this paragraph.

(f) ACCEPTANCE OF GIFTS.—(1) The Chief Operating Officer

may accept gifts of money, property, and facilities on behalf of the

Retirement Home.

(2) Monies received as gifts, or realized from the disposition of

property and facilities received as gifts, shall be deposited in the

Armed Forces Retirement Home Trust Fund.

SEC. 1516. ø24 U.S.C. 416¿ LOCAL BOARDS OF TRUSTEES.

(a) ESTABLISHMENT.—Each facility of the Retirement Home

shall have a Local Board of Trustees.

(b) DUTIES.—The Local Board for a facility shall serve in an

advisory capacity to the Director of the facility and to the Chief Operating Officer.
871 Sec. 1516 ARMED FORCES RETIREMENT HOME

(c) COMPOSITION.—(1) The Local Board for a facility shall consist of at least 11 members who (except as otherwise specifically

provided) shall be appointed by the Secretary of Defense in consultation with each of the Secretaries of the military departments

concerned. At least one member of the Local Board shall have a

perspective that is oriented toward the Retirement Home overall.

The Local Board for a facility shall consist of the following members:

(A) One member who is a civilian expert in nursing home

or retirement home administration and financing from the geographical area of the facility.

(B) One member who is a civilian expert in gerontology

from the geographical area of the facility.

(C) One member who is a service expert in financial management.

(D) One representative of the Department of Veterans Affairs regional office nearest in proximity to the facility, who

shall be designated by the Secretary of Veterans Affairs.

(E) One representative of the resident advisory committee

or council of the facility.

(F) One enlisted representative of the Services’ Retiree Advisory Council.

(G) The senior noncommissioned officer of one of the

Armed Forces.

(H) One senior representative of the military hospital

nearest in proximity to the facility.

(I) One senior judge advocate from one of the Armed

Forces.

(J) The Director of the facility, who shall be a nonvoting

member.

(K) One senior representative of one of the chief personnel

officers of the Armed Forces.

(L) Other members designated by the Secretary of Defense

(if the Local Board is to have more than 11 members).

(2) The Secretary of Defense shall designate one member of a

Local Board to serve as the chairman of the Local Board at the

pleasure of the Secretary of Defense.

(d) TERMS.—(1) Except as provided in subsections (e), (f), and

(g), the term of office of a member of a Local Board shall be five

years.

(2) Unless earlier terminated by the Secretary of Defense, a

person may continue to serve as a member of the Local Board after

the expiration of the member’s term until a successor is appointed

or designated, as the case may be.

(e) EARLY EXPIRATION OF TERM.—A member of a Local Board

who is a member of the Armed Forces or an employee of the United

States serves as a member of the Local Board only for as long as

the member is assigned to or serving in a position for which the

duties include the duty to serve as a member of the Local Board.

(f) VACANCIES.—(1) A vacancy in the membership of a Local

Board shall be filled in the manner in which the original appointment or designation was made, as the case may be.

mber appointed or designated to fill a vacancy occurring before

the end of the term of the predecessor of the member shall be ap-
Sec. 1517 ARMED FORCES RETIREMENT HOME 872

pointed or designated, as the case may be, for the remainder of the

term for which the predecessor was appointed.

(3) A vacancy in a Local Board shall not affect its authority to

perform its duties.

(g) EARLY TERMINATION.—The Secretary of Defense may terminate the appointment of a member of a Local Board before the expiration of the member’s term for any reason that the Secretary determines appropriate.

(h) COMPENSATION.—(1) Except as provided in paragraph (2), a

member of a Local Board shall—

(A) be provided a stipend consistent with the daily government consultant fee for each day on which the member is engaged in the performance of services for the Local Board; and

(B) while away from home or regular place of business in

the performance of services for the Local Board, be allowed

travel expenses (including per diem in lieu of subsistence) in

the same manner as a person employed intermittently in Government under sections 5701 through 5707 of title 5, United

States Code.

(2) A member of a Local Board who is a member of the Armed

Forces on active duty or a full-time officer or employee of the

United States shall receive no additional pay by reason of serving

as a member of a Local Board.

SEC. 1517. ø24 U.S.C. 417¿ DIRECTORS, DEPUTY DIRECTORS, ASSOCIATE DIRECTORS, AND STAFF OF FACILITIES.

(a) APPOINTMENT.—The Secretary of Defense shall appoint a

Director, a Deputy Director, and an Associate Director for each facility of the Retirement Home.

(b) DIRECTOR.—The Director of a facility shall—

(1) be a civilian with experience as a continuing care retirement community professional or a member of the Armed

Forces serving on active duty in a grade below brigadier general or, in the case of the Navy, rear admiral (lower half);

(2) have appropriate leadership and management skills;

and

(3) be required to pursue a course of study to receive certification as a retirement facilities director by an appropriate

civilian certifying organization, if the Director is not so certified at the time of appointment.

(c) DUTIES OF DIRECTOR.—(1) The Director of a facility shall be

responsible for the day-to-day operation of the facility, including

the acceptance of applicants to be residents of that facility.

(2) The Director of a facility shall keep accurate and complete

records of the facility.

(d) DEPUTY DIRECTOR.—(1) The Deputy Director of a facility

shall—

(A) be a civilian with experience as a continuing care retirement community professional or a member of the Armed

Forces serving on active duty in a grade below colonel or, in

the case of the Navy, captain; and

(B) have appropriate leadership and management skills.

(2) The Deputy Director of a facility shall serve at the pleasure

of the Secretary of Defense.
873 Sec. 1519 ARMED FORCES RETIREMENT HOME

(e) DUTIES OF DEPUTY DIRECTOR.—The Deputy Director of a facility shall, under the authority, direction, and control of the Director of the facility, perform such duties as the Director may assign.

(f) ASSOCIATE DIRECTOR.—(1) The Associate Director of a facility shall—

(A) be a member of the Armed Forces serving on active

duty in the grade of Sergeant Major, Master Chief Petty Officer, or Chief Master Sergeant or a member or former member

retired in that grade; and

(B) have appropriate leadership and management skills.

(2) The Associate Director of a facility shall serve at the pleasure of the Secretary of Defense.

(g) DUTIES OF ASSOCIATE DIRECTOR.—The Associate Director of

a facility shall, under the authority, direction, and control of the

Director and Deputy Director of the facility, serve as ombudsman

for the residents and perform such other duties as the Director

may assign.

(h) STAFF.—(1) The Director of a facility may, subject to the approval of the Chief Operating Officer, appoint and prescribe the

pay of such principal staff as the Director considers appropriate to

assist the Director in operating the facility.

(2) The principal staff of a facility shall include persons with

experience and expertise in the operation and management of retirement homes and in the provision of long-term medical care for

older persons.

(i) ANNUAL EVALUATION OF DIRECTORS.—(1) The Chief Operating Officer shall evaluate the performance of each of the Directors of the facilities of the Retirement Home each year.

(2) The Chief Operating Officer shall submit to the Secretary

of Defense any recommendations regarding a Director that the

Chief Operating Officer determines appropriate taking into consideration the annual evaluation.

SEC. 1518. ø24 U.S.C. 418¿ INSPECTION OF RETIREMENT HOME.

(a) TRIENNIAL INSPECTION.—Every three years the Inspector

General of a military department shall inspect the Retirement

Home, including the records of the Retirement Home.

(b) ALTERNATING DUTY AMONG INSPECTORS GENERAL.—The

duty to inspect the Retirement Home shall alternate among the Inspector General of the Army, the Naval Inspector General, and the

Inspector General of the Air Force on such schedule as the Secretary of Defense shall direct.

(c) REPORTS.—Not later than 45 days after completing an inspection under subsection (a), the Inspector General carrying out

the inspection shall submit to the Chief Operating Officer, the Secretary of Defense, and Congress a report describing the results of

the inspection and containing such recommendations as the Inspector General considers appropriate.

SEC. 1519. ø24 U.S.C. 419¿ ARMED FORCES RETIREMENT HOME TRUST

FUND.

(a) ESTABLISHMENT.—There is hereby established in the Treasury of the United States a trust fund to be known as the Armed

Forces Retirement Home Trust Fund. The Fund shall consist of the

following:

(1) Such amounts as may be transferred to the Fund.
Sec. 1520 ARMED FORCES RETIREMENT HOME 874

(2) Moneys deposited in the Fund by the Retirement Home

Board realized from gifts or from the disposition of property

and facilities.

(3) Amounts deposited in the Fund as monthly fees paid

by residents of the Retirement Home under section 1514.

(4) Amounts of fines and forfeitures deposited in the Fund

under section 2772 of title 10, United States Code.

(5) Amounts deposited in the Fund as deductions from the

pay of enlisted members, warrant officers, and limited duty officers under section 1007(i) of title 37, United States Code.

(6) Interest from investments made under subsection (c).

(b) AVAILABILITY AND USE OF FUND.—Amounts in the Fund

shall be available solely for the operation of the Retirement Home.

(c) INVESTMENTS.—The Secretary of the Treasury may invest

in obligations issued or guaranteed by the United States any monies in the Fund that the Chief Operating Officer determines are not

currently needed to pay for the operation of the Retirement Home.

SEC. 1520. ø24 U.S.C. 420¿ DISPOSITION OF EFFECTS OF DECEASED

PERSONS; UNCLAIMED PROPERTY

(a) DISPOSITION OF EFFECTS OF DECEASED PERSONS.—The Director of a facility of the Retirement Home shall safeguard and dispose of the estate and personal effects of deceased residents, including effects delivered to such facility under sections 4712(f) and

9712(f) of title 10, United States Code, and shall ensure the following:

(1) A will or other instrument of a testamentary nature involving property rights executed by a resident shall be promptly delivered, upon the death of the resident, to the proper court

of record.

(2) If a resident dies intestate and the heirs or legal representative of the deceased cannot be immediately ascertained,

the Director shall retain all property left by the decedent for

a three-year period beginning on the date of the death. If entitlement to such property is established to the satisfaction of

the Director at any time during the three-year period, the Director shall distribute the decedent’s property, in equal prorata shares when multiple beneficiaries have been identified,

to the highest following categories of identified survivors (listed

in the order of precedence indicated):

(A) The surviving spouse or legal representative.

(B) The children of the deceased.

(C) The parents of the deceased.

(D) The siblings of the deceased.

(E) The next-of-kin of the deceased.

(b) SALE OF EFFECTS.—(1)(A) If the disposition of the estate of

a resident of the Retirement Home cannot be accomplished under

subsection (a)(2) or if a resident dies testate and the nominated fiduciary, legatees, or heirs of the resident cannot be immediately

ascertained, the entirety of the deceased resident’s domiciliary estate and the entirety of any ancillary estate that is unclaimed at

the end of the three-year period beginning on the date of the death

of the resident shall escheat to the Retirement Home.

(B) Upon the sale of any such unclaimed estate property, the

proceeds of the sale shall be deposited in the Armed Forces Retirement Home Trust Fund.
875 Sec. 1520 ARMED FORCES RETIREMENT HOME

(C) If a personal representative or other fiduciary is appointed

to administer a deceased resident’s estate and the administration

is completed before the end of such three-year period, the balance

of the entire net proceeds of the estate, less expenses, shall be deposited directly in the Armed Forces Retirement Home Trust Fund.

The heirs or legatees of the deceased resident may file a claim

made with the Secretary of Defense to reclaim such proceeds. A determination of the claim by the Secretary shall be subject to judicial review exclusively by the United States Court of Federal

Claims.

(2)(A) The Director of a facility of the Retirement Home may

designate an attorney who is a full-time officer or employee of the

United States or a member of the Armed Forces on active duty to

serve as attorney or agent for the facility in any probate proceeding

in which the Retirement Home may have a legal interest as nominated fiduciary, testamentary legatee, escheat legatee, or in any

other capacity.

(B) An attorney designated under this paragraph may, in the

domiciliary jurisdiction of the deceased resident and in any ancillary jurisdiction, petition for appointment as fiduciary. The attorney shall have priority over any petitioners (other than the deceased resident’s nominated fiduciary, named legatees, or heirs) to

serve as fiduciary. In a probate proceeding in which the heirs of an

intestate deceased resident cannot be located and in a probate proceeding in which the nominated fiduciary, legatees, or heirs of a

testate deceased resident cannot be located, the attorney shall be

appointed as the fiduciary of the deceased resident’s estate.

(3) The designation of an employee or representative of a facility of the Retirement Home as personal representative of the estate

of a resident of the Retirement Home or as a legatee under the will

or codicil of the resident shall not disqualify an employee or staff

member of that facility from serving as a competent witness to a

will or codicil of the resident.

(4) After the end of the three-year period beginning on the date

of the death of a resident of a facility, the Director of the facility

shall dispose of all property of the deceased resident that is not

otherwise disposed of under this subsection, including personal effects such as decorations, medals, and citations to which a right

has not been established under subsection (a). Disposal may be

made within the discretion of the Director by—

(A) retaining such property or effects for the facility;

(B) offering such items to the Secretary of Veterans Affairs, a State, another military home, a museum, or any other

institution having an interest in such items; or

(C) destroying any items determined by the Director to be

valueless.

(c) TRANSFER OF PROCEEDS TO THE FUND.—The net proceeds

received by the Directors from the sale of effects under subsection

(b) shall be deposited in the Fund.

(d) SUBSEQUENT CLAIM.—(1) A claim for the net proceeds of the

sale under subsection (b) of the effects of a deceased may be filed

with the Secretary of Defense at any time within six years after

the death of the deceased, for action under section 2771 of title 10,

United States Code.
Sec. 1521 ARMED FORCES RETIREMENT HOME 876

(2) A claim referred to in paragraph (1) may not be considered

by a court or the Secretary unless the claim is filed within the time

period prescribed in such paragraph.

(3) A claim allowed by the Secretary under paragraph (1) shall

be certified to the Secretary of the Treasury for payment from the

Fund in the amount found due, including any interest relating to

the amount. No claim may be allowed or paid in excess of the net

proceeds of the estate deposited in the Fund under subsection (c)

plus interest.

(e) UNCLAIMED PROPERTY.—In the case of property delivered to

the Retirement Home under section 2575 of title 10, United States

Code, the Director of the facility shall deliver the property to the

owner, the heirs or next of kin of the owner, or the legal representative of the owner, if a right to the property is established to the

satisfaction of the Director of the facility within two years after the

delivery.

SEC. 1521. ø24 U.S.C. 421¿ PAYMENT OF RESIDENTS FOR SERVICES.

(a) AUTHORITY.—The Chief Operating Officer is authorized to

accept for the Armed Forces Retirement Home the part-time or

intermittent services of a resident of the Retirement Home, to pay

the resident for such services, and to fix the rate of such pay.

(b) EMPLOYMENT STATUS.—A resident receiving pay for services authorized under subsection (a) shall not, by reason of performing such services and receiving pay for such services, be considered as—

(1) receiving the pay of a position or being employed in a

position for the purposes of section 5532 of title 5, United

States Code; or

(2) being an employee of the United States for any purpose

other than—

(A) subchapter I of chapter 81 of title 5, United States

Code (relating to compensation for work-related injuries);

and

(B) chapter 171 of title 28, United States Code (relating to claims for damages or loss).

(c) DEFINITION.—In subsection (b)(1), the term ‘‘position’’ has

the meaning given that term in section 5531 of title 5, United

States Code.

SEC. 1522. ø24 U.S.C. 422¿ AUTHORITY TO ACCEPT CERTAIN UNCOMPENSATED SERVICES.

(a) AUTHORITY TO ACCEPT SERVICES.—Subject to subsection (b)

and notwithstanding section 1342 of title 31, United States Code,

the Chief Operating Officer or the Director of a facility of the Retirement Home may accept from any person voluntary personal

services or gratuitous services.

(b) REQUIREMENTS AND LIMITATIONS.—(1) The Chief Operating

Officer or the Director of a facility accepting the services shall notify the person offering the services of the scope of the services accepted.

(2) The Chief Operating Officer or Director shall—

(A) supervise the person providing the services to the same

extent as that official would supervise a compensated employee

providing similar services; and
877 Sec. 1523 ARMED FORCES RETIREMENT HOME

(B) ensure that the person is licensed, privileged, has appropriate credentials, or is otherwise qualified under applicable

laws or regulations to provide such services.

(3) A person providing services accepted under subsection (a)

may not—

(A) serve in a policymaking position of the Retirement

Home; or

(B) be compensated for the services by the Retirement

Home.

(c) AUTHORITY TO RECRUIT AND TRAIN PERSONS PROVIDING

SERVICES.—The Chief Operating Officer or the Director of a facility

of the Retirement Home may recruit and train persons to provide

services authorized to be accepted under subsection (a).

(d) STATUS OF PERSONS PROVIDING SERVICES.—(1) Subject to

paragraph (3), while providing services accepted under subsection

(a) or receiving training under subsection (c), a person shall be considered to be an employee of the Federal Government only for purposes of the following provisions of law:

(A) Subchapter I of chapter 81 of title 5, United States

Code (relating to compensation for work-related injuries).

(B) Chapter 171 of title 28, United States Code (relating

to claims for damages or loss).

(2) A person providing services accepted under subsection (a)

shall be considered to be an employee of the Federal Government

under paragraph (1) only with respect to services that are within

the scope of the services accepted.

(3) For purposes of determining the compensation for work-related injuries payable under chapter 81 of title 5, United States

Code (pursuant to this subsection) to a person providing services

accepted under subsection (a), the monthly pay of the person for

such services shall be deemed to be the amount determined by

multiplying—

(A) the average monthly number of hours that the person

provided the services, by

(B) the minimum wage determined in accordance with section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C.

206(a)(1)).

(e) REIMBURSEMENT OF INCIDENTAL EXPENSES.—The Chief Operating Officer or the Director of a facility accepting services under

subsection (a) may provide for reimbursement of a person for incidental expenses incurred by the person in providing the services

accepted under subsection (a). The Chief Operating Officer or Director shall determine which expenses qualify for reimbursement

under this subsection.

SEC. 1523. ø24 U.S.C. 423¿ PRESERVATION OF HISTORIC BUILDINGS

AND GROUNDS AT THE ARMED FORCES RETIREMENT

HOME—WASHINGTON.

(a) HISTORIC NATURE OF FACILITY.—Congress finds the following:

(1) Four buildings located on six acres of the establishment

of the Retirement Home known as the Armed Forces Retirement Home—Washington are included on the National Register of Historic Places maintained by the Secretary of the Interior.
[Sec. 1524 ARMED FORCES RETIREMENT HOME 878

(2) Amounts in the Armed Forces Retirement Home Trust

Fund, which consists primarily of deductions from the pay of

members of the Armed Forces, are insufficient to both maintain and operate the Retirement Home for the benefit of the

residents of the Retirement Home and adequately maintain,

repair, and preserve these historic buildings and grounds.

(3) Other sources of funding are available to contribute to

the maintenance, repair, and preservation of these historic

buildings and grounds.

(b) AUTHORITY TO ACCEPT ASSISTANCE.—The Chief Operating

Officer and the Director of the Armed Forces Retirement Home—

Washington may apply for and accept a direct grant from the Secretary of the Interior under section 101(e)(3) of the National Historic Preservation Act (16 U.S.C. 470a(e)(3)) for the purpose of

maintaining, repairing, and preserving the historic buildings and

grounds of the Armed Forces Retirement Home—Washington included on the National Register of Historic Places.

(c) REQUIREMENTS AND LIMITATIONS.—Amounts received as a

grant under subsection (b) shall be deposited in the Fund, but shall

be kept separate from other amounts in the Fund. The amounts received may only be used for the purpose specified in subsection (b).

SEC. 1524. ø24 U.S.C. 424¿ CONDITIONAL SUPERVISORY CONTROL OF

RETIREMENT HOME BOARD BY SECRETARY OF DEFENSE.

[Repealed. P.L. 107–107, § 1410(a)(5), Dec. 28, 2001, 115 Stat.

1266]

Part B—Transitional Provisions

SEC. 1531. ø24 U.S.C. 431¿ TEMPORARY CONTINUATION OF ARMED

FORCES RETIREMENT HOME BOARD.

Until the Secretary of Defense appoints the first Chief Operating Officer after the enactment of the National Defense Authorization Act for Fiscal Year 2002, the Armed Forces Retirement

Home Board, as constituted on the day before the date of the enactment of that Act, shall continue to serve and shall perform the duties of the Chief Operating Officer.

SEC. 1532. ø24 U.S.C. 432¿ DIRECTORS OF FACILITIES.

(a) ACTIVE DUTY OFFICERS.—During the three-year period beginning on the date of the enactment of the National Defense Authorization Act for Fiscal Year 2002, the Directors and Deputy Directors of the facilities shall be members of the Armed Forces serving on active duty, notwithstanding the authority in subsections (b)

and (d) of section 1517 for the Directors and Deputy Directors to

be civilians.

(b) TEMPORARY CONTINUATION OF DIRECTOR OF THE ARMED

FORCES RETIREMENT HOME—WASHINGTON.—The person serving as

the Director of the Armed Forces Retirement Home—Washington

on the day before the enactment of the National Defense Authorization Act for Fiscal Year 2002 may continue to serve as the Director of that facility until April 2, 2002.

SEC. 1533. ø24 U.S.C. 433¿ TEMPORARY CONTINUATION OF INCUMBENT DEPUTY DIRECTORS.

A person serving as the Deputy Director of a facility of the Retirement Home on the day before the enactment of the National

Defense Authorization Act for Fiscal Year 2002 may continue to
879 Sec. 1053 ARMED FORCES RETIREMENT HOME

1The Federal Property and Administrative Services Act of 1949 was repealed as part of the

codification of title 40, United States Code, by Public Law 107–217. Former title II of that Act

is now chapter 5 of title 40.

serve, at the pleasure of the Secretary of Defense, as the Deputy

Director until the date on which a Deputy Director is appointed for

that facility under section 1517, except that the service in that position may not continue under this section after December 31,

2004.

øPart C—Effective Date and Authorization of

Appropriations

øSECS. 1541–1542. Repealed. P.L. 107–107, § 1410(b)(3), Dec. 28, 2001, 115

Stat. 1266¿

b. Disposal of District of Columbia Tract

(Section 1053 of Public Law 104–201; Sept. 23, 1996)

SEC. 1053. ø110 Stat. 2650¿ DISPOSAL OF TRACT OF REAL PROPERTY IN

THE DISTRICT OF COLUMBIA.

(a) DISPOSAL AUTHORIZED.—(1) Notwithstanding title II the

Federal Property and Administrative Services Act of 1949 (40

U.S.C. 481 et seq.), title VIII of such Act (40 U.S.C. 531 et seq.),

section 501 of the McKinney-Vento Homeless Assistance Act (42

U.S.C. 11411), or any other provision of law relating to the management and disposal of real property by the United States, the

Armed Forces Retirement Home Board shall convey, by sale or

lease, all right, title, and interest of the United States in a parcel

of real property, including improvements thereon, consisting of approximately 49 acres located in Washington, District of Columbia,

east of North Capitol Street, and recorded as District Parcel 121/

19. 1

(2) The Armed Forces Retirement Home Board shall sell or

lease the property described in subsection (a) within 12 months

after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2000.

(b) MANNER, TERMS AND CONDITIONS OF DISPOSAL.—(1) The

Armed Forces Retirement Home Board shall determine the manner, terms, and conditions for the sale or lease of the real property

under subsection (a), except as follows:

(A) Any lease of the real property under subsection (a)

shall include an option to purchase.

(B) The conveyance may not involve any form of public/private partnership, but shall be limited to fee-simple sale or

long-term lease.

(C) Before conveying the property by sale or lease to any

other person or entity, the Board shall provide the Catholic

University of America with the opportunity to match or exceed

the highest bona fide offer otherwise received for the purchase

or lease of the property, as the case may be, and to acquire the

property.

(2) As consideration for the real property conveyance under

subsection (a), the purchaser selected under paragraph (1) shall

pay to the United States an amount equal to the fair market value
Sec. 1053 ARMED FORCES RETIREMENT HOME 880

of the real property at its highest and best economic use, as determined by the Armed Forces Retirement Home Board, based on an

independent appraisal. In no event shall the sale or lease of the

property be for less than the appraised value of the property in its

existing condition and on the basis of its highest and best use.

(3) The payment received under paragraph (2) shall be deposited in the Armed Forces Retirement Home Trust Fund in accordance with section 1519(a)(2) of the National Defense Authorization

Act for Fiscal Year 1991 (104 Stat. 1730; 24 U.S.C. 419(a)(2)).

(c) DESCRIPTION OF PROPERTY.—The exact acreage and legal

description of the real property to be conveyed under subsection (a)

shall be determined by a survey satisfactory to the Armed Forces

Retirement Home Board. The cost of the survey shall be borne by

the party or parties to which the property is to be conveyed.

(d) CONGRESSIONAL NOTIFICATION.—(1) Before disposing of real

property under subsection (a), the Armed Forces Retirement Home

Board shall notify the Committee on Armed Services of the Senate

and the Committee on Armed Services of the House of Representatives of the proposed disposal. The Board may not dispose of the

real property until the later of—

(A) the date that is 60 days after the date on which the

notification is received by the committees; or

(B) the date of the next day following the expiration of the

first period of 30 days of continuous session of Congress that

follows the date on which the notification is received by the

committees.

(2) For the purposes of paragraph (1)—

(A) continuity of session is broken only by an adjournment

of Congress sine die; and

(B) the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of any period of time in

which Congress is in continuous session.
881

7. PURCHASE OF PUBLIC WORKS, UTILITY, AND OTHER

MUNICIPAL SERVICES AT CERTAIN CALIFORNIA INSTALLATIONS

Section 343 of the National Defense Authorization Act for

Fiscal Year 2004

(Public Law 108–136; approved Nov. 24, 2003)

SEC. 343. PERMANENT AUTHORITY FOR PURCHASE OF CERTAIN MUNICIPAL SERVICES AT INSTALLATIONS IN MONTEREY

COUNTY, CALIFORNIA.

(a) AUTHORITY.—Subject to section 2465 of title 10, United

States Code, public works, utility, and other municipal services

needed for the operation of any Department of Defense asset in

Monterey County, California, may be purchased from government

agencies located in that county.

(c) REPEAL OF EXISTING TEMPORARY AUTHORITY.—øOmittedAmendment¿
882

8. DEMONSTRATION PROJECT FOR UNIFORM FUNDING

OF MORALE, WELFARE, AND RECREATION ACTIVITIES

AT CERTAIN MILITARY INSTALLATIONS

Section 335 of the National Defense Authorization Act for

Fiscal Year 1996

(Public Law 104–106; approved Feb, 10, 1996)

SEC. 335. ø10 U.S.C. 2241 note¿ DEMONSTRATION PROJECT FOR UNIFORM FUNDING OF MORALE, WELFARE, AND RECREATION ACTIVITIES AT CERTAIN MILITARY INSTALLATIONS.

(a) DEMONSTRATION PROJECT REQUIRED.—(1) The Secretary of

Defense shall conduct a demonstration project to evaluate the feasibility of using only nonappropriated funds to support morale, welfare, and recreation programs at military installations in order to

facilitate the procurement of property and services for those programs and the management of employees used to carry out those

programs.

(2) Under the demonstration project—

(A) procurements of property and services for programs referred to in paragraph (1) may be carried out in accordance

with laws and regulations applicable to procurements paid for

with nonappropriated funds; and

(B) appropriated funds available for such programs may be

expended in accordance with laws applicable to expenditures of

nonappropriated funds as if the appropriated funds were nonappropriated funds.

(3) The Secretary shall prescribe regulations to carry out paragraph (2). The regulations shall provide for financial management

and accounting of appropriated funds expended in accordance with

subparagraph (B) of such paragraph.

(b) COVERED MILITARY INSTALLATIONS.—The Secretary shall

select not less than three and not more than six military installations to participate in the demonstration project.

(c) PERIOD OF DEMONSTRATION PROJECT.—The demonstration

project shall terminate not later than September 30, 1998.

(d) EFFECT ON EMPLOYEES.—For the purpose of testing fiscal

accounting procedures, the Secretary may convert, for the duration

of the demonstration project, the status of an employee who carries

out a program referred to in subsection (a)(1) from the status of an

employee paid by appropriated funds to the status of a nonappropriated fund instrumentality employee, except that such conversion may occur only—

(1) if the employee whose status is to be converted—

(A) is fully informed of the effects of such conversion

on the terms and conditions of the employment of that em-
883 Sec. 335 UNIFORM FUNDING OF MWR ACTIVITIES

ployee for purposes of title 5, United States Code, and on

the benefits provided to that employee under such title;

and

(B) consents to such conversion; or

(2) in a manner which does not affect such terms and conditions of employment or such benefits.

(e) REPORTS.—(1) Not later than six months after the date of

the enactment of this Act, the Secretary shall submit to Congress

an interim report on the implementation of this section.

(2) Not later than December 31, 1998, the Secretary shall submit to Congress a final report on the results of the demonstration

project. The report shall include a comparison of—

(A) the cost incurred under the demonstration project in

using employees paid by appropriated funds together with nonappropriated fund instrumentality employees to carry out the

programs referred to in subsection (a)(1); and

(B) an estimate of the cost that would have been incurred

if only nonappropriated fund instrumentality employees had

been used to carry out such programs.
884

9. PROJECTS TO IMPROVE OPERATION OF MILITARY

INSTALLATIONS

a. Base Efficiency Project at Brooks Air Force Base

Section 136 of the Military Construction Appropriations Act, 2001

(division A of Public Law 106–246; approved July 13, 2000; 114 Stat. 520)

BROOKS AIR FORCE BASE DEVELOPMENT DEMONSTRATION PROJECT

SEC. 136. (a) PURPOSE.—The purpose of this section is to evaluate and demonstrate methods for more efficient operation of military installations through improved capital asset management and

greater reliance on the public or private sector for less-costly base

support services, where available. The section supersedes, and

shall be used in lieu of the authority provided in, section 8168 of

the Department of Defense Appropriations Act, 2000 (Public Law

106–79; 113 Stat. 1277).

(b) AUTHORITY.—(1) Subject to paragraph (4), the Secretary of

the Air Force may carry out at Brooks Air Force Base, Texas, a

demonstration project to be known as the ‘‘Base Efficiency Project’’

to improve mission effectiveness and reduce the cost of providing

quality installation support at Brooks Air Force Base.

(2) The Secretary may carry out the Project in consultation

with the Community to the extent the Secretary determines such

consultation is necessary and appropriate.

(3) The authority provided in this section is in addition to any

other authority vested in or delegated to the Secretary, and the

Secretary may exercise any authority or combination of authorities

provided under this section or elsewhere to carry out the purposes

of the Project.

(4) The Secretary may not exercise any authority under this

section until after the end of the 30-day period beginning on the

date the Secretary submits to the appropriate committees of the

Congress a master plan for the development of the Base.

(c) EFFICIENT PRACTICES.—(1) The Secretary may convert services at or for the benefit of the Base from accomplishment by military personnel or by Department civilian employees (appropriated

fund or non-appropriated fund), to services performed by contract

or provided as consideration for the lease, sale, or other conveyance

or transfer of property.

(2) Notwithstanding section 2462 of title 10, United States

Code, a contract for services may be awarded based on ‘‘best value’’

if the Secretary determines that the award will advance the pur-
885 Sec. 136 BASE EFFICIENCY PROJECTS

poses of a joint activity conducted under the project and is in the

best interest of the Department.

(3) Notwithstanding that such services are generally funded by

local and State taxes and provided without specific charge to the

public at large, the Secretary may contract for public services at or

for the benefit of the Base in exchange for such consideration, if

any, the Secretary determines to be appropriate.

(4)(A) The Secretary may conduct joint activities with the Community, the State, and any private parties or entities on or for the

benefit of the Base.

(B) Payments or reimbursements received from participants for

their share of direct and indirect costs of joint activities, including

the costs of providing, operating, and maintaining facilities, shall

be in an amount and type determined to be adequate and appropriate by the Secretary.

(C) Such payments or reimbursements received by the Department shall be deposited into the Project Fund.

(d) LEASE AUTHORITY.—(1) The Secretary may lease real or

personal property located on the Base and not required at other Air

Force installations to any lessee upon such terms and conditions as

the Secretary considers appropriate and in the interest of the

United States, if the Secretary determines that the lease would facilitate the purposes of the Project.

(2) Consideration for a lease under this subsection shall be determined in accordance with subsection (g).

(3) A lease under this subsection—

(A) may be for such period as the Secretary determines is

necessary to accomplish the goals of the Project; and

(B) may give the lessee the first right to purchase the

property at fair market value if the lease is terminated to

allow the United States to sell the property under any other

provision of law.

(4)(A) The interest of a lessee of property leased under this

subsection may be taxed by the State or the Community.

(B) A lease under this subsection shall provide that, if and to

the extent that the leased property is later made taxable by State

governments or local governments under Federal law, the lease

shall be renegotiated.

(5) The Department may furnish a lessee with utilities, custodial services, and other base operation, maintenance, or support

services performed by Department civilian or contract employees,

in exchange for such consideration, payment, or reimbursement as

the Secretary determines appropriate.

(6) All amounts received from leases under this subsection

shall be deposited into the Project Fund.

(7) A lease under this subsection shall not be subject to the following provisions of law:

(A) Section 2667 of title 10, United States Code, other than

subsection (b)(1) of that section.

(B) Section 1302 of title 40, United States Code.

(C) Subtitle I of title 40, United States Code.

(e) PROPERTY DISPOSAL.—(1) The Secretary may sell or otherwise convey or transfer real and personal property located at the

Base to the Community or to another public or private party dur-
Sec. 136 BASE EFFICIENCY PROJECTS 886

ing the Project, upon such terms and conditions as the Secretary

considers appropriate for purposes of the Project.

(2) Consideration for a sale or other conveyance or transfer of

property under this subsection shall be determined in accordance

with subsection (g).

(3) The sale or other conveyance or transfer of property under

this subsection shall not be subject to the following provisions of

law:

(A) Section 2693 of title 10, United States Code.

(B) Subtitle I of title 40, United States Code.

(4) Cash payments received as consideration for the sale or

other conveyance or transfer of property under this subsection shall

be deposited into the Project Fund.

(f ) LEASEBACK OF PROPERTY LEASED OR DISPOSED.—(1) The

Secretary may lease, sell, or otherwise convey or transfer real property at the Base under subsections (b) and (e), as applicable, which

will be retained for use by the Department or by another military

department or other Federal agency, if the lessee, purchaser, or

other grantee or transferee of the property agrees to enter into a

leaseback to the Department in connection with the lease, sale, or

other conveyance or transfer of one or more portions or all of the

property leased, sold, or otherwise conveyed or transferred, as applicable.

(2) A leaseback of real property under this subsection shall be

an operating lease for no more than 20 years unless the Secretary

of the Air Force determines that a longer term is appropriate.

(3)(A) Consideration, if any, for real property leased under a

leaseback entered into under this subsection shall be in such form

and amount as the Secretary considers appropriate.

(B) The Secretary may use funds in the Project Fund or other

funds appropriated or otherwise available to the Department for

use at the Base for payment of any such cash rent.

(4) Notwithstanding any other provision of law, the Department or other military department or other Federal agency using

the real property leased under a leaseback entered into under this

subsection may construct and erect facilities on or otherwise improve the leased property using funds appropriated or otherwise

available to the Department or other military department or other

Federal agency for such purpose.

(g) CONSIDERATION.—(1) The Secretary shall determine the nature, value, and adequacy of consideration required or offered in

exchange for a lease, sale, or other conveyance or transfer of real

or personal property or for other actions taken under the Project.

(2) Consideration may be in cash or in-kind or any combination

thereof. In-kind consideration may include the following:

(A) Real property.

(B) Personal property.

(C) Goods or services, including operation, maintenance,

protection, repair, or restoration (including environmental restoration) of any property or facilities (including non-appropriated fund facilities).

(D) Base operating support services.

(E) Improvement of Department facilities.
887 Sec. 136 BASE EFFICIENCY PROJECTS

(F) Provision of facilities, including office, storage, or other

usable space, for use by the Department on or off the Base.

(G) Public services.

(3) Consideration may not be for less than the fair market

value.

(h) PROJECT FUND.—(1) There is established on the books of

the Treasury a fund to be known as the ‘‘Base Efficiency Project

Fund’’ into which all cash rents, proceeds, payments, reimbursements, and other amounts from leases, sales, or other conveyances

or transfers, joint activities, and all other actions taken under the

Project shall be deposited. Subject to paragraph (2), amounts deposited into the Project Fund shall be available without fiscal year

limitation.

(2) To the extent provided in advance in appropriations Acts,

amounts in the Project Fund shall be available to the Secretary for

use at the base only for operation, base operating support services,

maintenance, repair, or improvement of Department facilities, payment of consideration for acquisitions of interests in real property

(including payment of rentals for leasebacks), and environmental

protection or restoration. The use of such amounts may be in addition to or in combination with other amounts appropriated for

these purposes.

(3) Subject to generally prescribed financial management regulations, the Secretary shall establish the structure of the Project

Fund and such administrative policies and procedures as the Secretary considers necessary to account for and control deposits into

and disbursements from the Project Fund effectively.

(i) FEDERAL AGENCIES.—(1)(A) Any Federal agency, its contractors, or its grantees shall pay rent, in cash or services, for the use

of facilities or property at the Base, in an amount and type determined to be adequate by the Secretary.

(B) Such rent shall generally be the fair market rental of the

property provided, but in any case shall be sufficient to compensate

the Base for the direct and overhead costs incurred by the Base

due to the presence of the tenant agency on the Base.

(2) Transfers of real or personal property at the Base to other

Federal agencies shall be at fair market value consideration. Such

consideration may be paid in cash, by appropriation transfer, or in

property, goods, or services.

(3) Amounts received from other Federal agencies, their contractors, or grantees, including any amounts paid by appropriation

transfer, shall be deposited in the Project Fund.

( j) REPORTS TO CONGRESS.—(1) Section 2662 of title 10, United

States Code, shall apply to transactions at the Base during the

Project.

(k) LIMITATION.—None of the authorities in this section shall

create any legal rights in any person or entity except rights embodied in leases, deeds, or contracts.

(l) EXPIRATION OF AUTHORITY.—The authority to enter into a

lease, deed, permit, license, contract, or other agreement under this

section shall expire on June 1, 2005.

(m) DEFINITIONS.—In this section:

(1) The term ‘‘Project’’ means the Base Efficiency Project

authorized by this section.
Sec. 2813 BASE EFFICIENCY PROJECTS 888

(2) The term ‘‘Base’’ means Brooks Air Force Base, Texas.

(3) The term ‘‘Community’’ means the City of San Antonio,

Texas.

(4) The term ‘‘Department’’ means the Department of the

Air Force.

(5) The term ‘‘facility’’ means a building, structure, or

other improvement to real property (except a military family

housing unit as that term is used in subchapter IV of chapter

169 of title 10, United States Code).

(6) The term ‘‘joint activity’’ means an activity conducted

on or for the benefit of the Base by the Department, jointly

with the Community, the State, or any private entity, or any

combination thereof.

(7) The term ‘‘Project Fund’’ means the Base Efficiency

Project Fund established by subsection (h).

(8) The term ‘‘public services’’ means public services (except public schools, fire protection, and police protection) that

are funded by local and State taxes and provided without specific charge to the public at large.

(9) The term ‘‘Secretary’’ means the Secretary of the Air

Force or the Secretary’s designee.

(10) The term ‘‘State’’ means the State of Texas.

(n) EFFECTIVE DATE.—This section becomes effective immediately upon enactment of this Act.

b. Pilot Programs for Operation and Maintenance of

Military Installations

Sections 2813 and 2814 of the National Defense Authorization Act for Fiscal Year

2002

(Public Law 107–107, approved Dec. 28, 2001)

SEC. 2813. ø10 U.S.C. 2661 note¿ PILOT PROGRAM TO PROVIDE ADDITIONAL TOOLS FOR EFFICIENT OPERATION OF MILITARY

INSTALLATIONS.

(a) INITIATIVE AUTHORIZED.—The Secretary of Defense may

carry out a pilot program (to be known as the ‘‘Pilot Efficient Facilities Initiative’’) for purposes of determining the potential for increasing the efficiency and effectiveness of the operation of military

installations.

(b) DESIGNATION OF PARTICIPATING MILITARY INSTALLATIONS.—

(1) The Secretary of Defense may designate up to two military installations of each military department for participation in the Initiative.

(2) Before designating a military installation under paragraph

(1), the Secretary shall consult with employees at the installation

and communities in the vicinity of the installation regarding the

Initiative.

(3) The Secretary shall transmit to Congress written notification of the designation of a military installation to participate in

the Initiative not later than 30 days before taking any action to

carry out the Initiative at the installation. The notification shall include a description of the steps taken by the Secretary to comply

with paragraph (2).
889 Sec. 2813 BASE EFFICIENCY PROJECTS

(c) MANAGEMENT PLAN.—(1) As part of the notification required under subsection (b), the Secretary of Defense shall submit

a management plan for the Initiative at the military installation

designated in the notification.

(2) The management plan for a designated military installation

shall include a description of—

(A) each proposed lease of real or personal property located

at the military installation;

(B) each proposed disposal of real or personal property located at the installation;

(C) each proposed leaseback of real or personal property

leased or disposed of at the installation;

(D) each proposed conversion of services at the installation

from Federal Government performance to non-Federal Government performance, including performance by contract with a

State or local government or private entity or performance as

consideration for the lease or disposal of property at the installation; and

(E) each other action proposed to be taken to improve mission effectiveness and reduce the cost of providing quality installation support at the installation.

(3) With respect to each proposed action described under paragraph (2), the management plan shall include—

(A) an estimate of the savings expected to be achieved as

a result of the action;

(B) each regulation not required by statute that is proposed to be waived to implement the action; and

(C) each statute or regulation required by statute that is

proposed to be waived to implement the action, including—

(i) an explanation of the reasons for the proposed

waiver; and

(ii) a description of the action to be taken to protect

the public interests served by the statute or regulation, as

the case may be, in the event of the waiver.

(4) The management plan shall include measurable criteria for

the evaluation of the effects of the actions taken pursuant to the

Initiative at the designated military installation.

(d) WAIVER OF STATUTORY REQUIREMENTS.—The Secretary of

Defense may waive any statute, or regulation required by statute,

for purposes of carrying out the Initiative only if specific authority

for the waiver of such statute or regulation is provided in a law

that is enacted after the date of the enactment of this Act.

(e) INSTALLATION EFFICIENCY INITIATIVE FUND.—(1) There is

established on the books of the Treasury a fund to be known as the

‘‘Installation Efficiency Initiative Fund’’.

(2) There shall be deposited in the Fund all cash rents, payments, reimbursements, proceeds, and other amounts from leases,

sales, or other conveyances or transfers, joint activities, and other

actions taken under the Initiative.

(3) To the extent provided in advance in authorization Acts and

appropriations Acts, amounts in the Fund shall be available to the

Secretary of Defense for purposes of managing capital assets and

providing support services at military installations participating in

the Initiative. Amounts in the Fund may be used for such purposes
Sec. 2814 BASE EFFICIENCY PROJECTS 890

in addition to, or in combination with, other amounts authorized to

be appropriated for such purposes. Amounts in the Fund shall be

available for such purposes for five years.

(4) Subject to applicable financial management regulations, the

Secretary shall structure the Fund, and provide administrative

policies and procedures, in order to provide proper control of deposits in and disbursements from the Fund.

(f) REPORT.—Not later than December 31, 2004, the Secretary

of Defense shall submit to Congress a report on the Initiative. The

report shall contain a description of the actions taken under the

Initiative and include such other information, including recommendations, as the Secretary considers appropriate regarding

the Initiative.

(g) DEFINITIONS.—In this section:

(1) The term ‘‘Initiative’’ means the Pilot Efficient Facilities Initiative.

(2) The term ‘‘Fund’’ means the Installation Efficiency Initiative Fund.

(3) The term ‘‘military installation’’ has the meaning given

such term in section 2687(e) of title 10, United States Code.

(h) TERMINATION.—The authority of the Secretary of Defense to

carry out the Initiative shall terminate December 31, 2005.

SEC. 2814. ø10 U.S.C. 2809 note¿ DEMONSTRATION PROGRAM ON REDUCTION IN LONG-TERM FACILITY MAINTENANCE COSTS.

(a) AUTHORITY TO CARRY OUT PROGRAM.—The Secretary of Defense or the Secretary of a military department may conduct a

demonstration program to assess the feasibility and desirability of

including facility maintenance requirements in construction contracts for military construction projects for the purpose of determining whether such requirements facilitate reductions in the longterm facility maintenance costs of the military departments.

(b) CONTRACTS.—(1) Not more than 12 contracts per military

department may contain requirements referred to in subsection (a)

for the purpose of the demonstration program.

(2) The demonstration program may only cover contracts entered into on or after the date of the enactment of the Bob Stump

National Defense Authorization Act for Fiscal Year 2003, except

that the Secretary of the Army shall treat any contract containing

requirements referred to in subsection (a) that was entered into

under the authority in such subsection between that date and December 28, 2001, as a contract for the purpose of the demonstration

program.

(c) EFFECTIVE PERIOD OF REQUIREMENTS.—The effective period

of a requirement referred to in subsection (a) that is included in a

contract for the purpose of the demonstration program may not exceed five years.

(d) REPORTING REQUIREMENTS.—Not later than January 31,

2005, the Secretary of Defense shall submit to Congress a report

on the demonstration program, including the following:

(1) A description of all contracts that contain requirements

referred to in subsection (a) for the purpose of the demonstration program.
891 Sec. 2814 BASE EFFICIENCY PROJECTS

(2) An evaluation of the demonstration program and a description of the experience of the Secretary with respect to

such contracts.

(3) Any recommendations, including recommendations for

the termination, continuation, or expansion of the demonstration program, that the Secretary considers appropriate.

(e) EXPIRATION.—The authority under subsection (a) to include

requirements referred to in that subsection in contracts under the

demonstration program shall expire on September 30, 2006.

(f) FUNDING.—Amounts authorized to be appropriated for the

military departments or defense-wide for a fiscal year for military

construction shall be available for the demonstration program

under this section in such fiscal year.
892

10. IDENTIFICATION OF REQUIREMENTS TO REDUCE

BACKLOG IN MAINTENANCE AND REPAIR OF DEFENSE FACILITIES

Section 374 of the Floyd D. Spence National Defense

Authorization Act for Fiscal Year 2001

(as enacted by Public Law 106–398; 114 Stat. 1654A–81; approved Oct. 30, 2000)

SEC. 374. ø10 U.S.C. 2861 note¿ IDENTIFICATION OF REQUIREMENTS TO

REDUCE BACKLOG IN MAINTENANCE AND REPAIR OF DEFENSE FACILITIES.

(a) REPORT TO ADDRESS MAINTENANCE AND REPAIR BACK- LOG.—Not later than March 15, 2001, the Secretary of Defense

shall submit to Congress a report identifying a list of requirements

to reduce the backlog in maintenance and repair needs of facilities

and infrastructure under the jurisdiction of the Department of Defense or a military department.

(b) ELEMENTS OF REPORT.—At a minimum, the report shall include or address the following:

(1) The extent of the work necessary to repair and revitalize facilities and infrastructure, or to demolish and replace

unusable facilities, carried as backlog by the Secretary of Defense or the Secretary of a military department.

(2) Measurable goals, over specified time frames, for addressing all of the identified requirements.

(3) Expected funding for each military department and Defense Agency to address the identified requirements during the

period covered by the most recent future-years defense program submitted to Congress pursuant to section 221 of title 10,

United States Code.

(4) The cost of the current backlog in maintenance and repair for each military department and Defense Agency, which

shall be determined using the standard costs to standard facility categories in the Department of Defense Facilities Cost Factors Handbook, shown both in the aggregate and individually

for each major military installation.

(5) The total number of square feet of building space of

each military department and Defense Agency to be demolished or proposed for demolition, shown both in the aggregate

and individually for each major military installation.

(6) The initiatives underway to identify facility and infrastructure requirements at military installations to accommodate new and developing weapons systems and to prepare installations to accommodate these systems.

(c) ANNUAL UPDATES.—The Secretary of Defense shall update

the report required under subsection (a) annually. The annual updates shall be submitted to Congress at or about the time that the
893 Sec. 374 FACILITY MAINTENANCE AND REPAIR BACKLOG

budget is submitted to Congress for a fiscal year under section

1105(a) of title 31, United States Code.

895

F. ENVIRONMENTAL RESTORATION AND

CONSERVATION

[As amended through the end of the first session of the

108th Congress, December 31, 2003]

897

1. SELECTED ENVIRONMENTAL PROVISIONS FROM

ANNUAL DEFENSE AUTHORIZATION ACTS

a. National Defense Authorization Act for Fiscal Year 2004

(Public Law 108–136, approved Nov. 24, 2003)

TITLE III—OPERATION AND MAINTENANCE

* * * * * * *

Subtitle B—Environmental Provisions

* * * * * * *

SEC. 320. ø10 U.S.C. 113 note¿ REPORT REGARDING IMPACT OF CIVILIAN COMMUNITY ENCROACHMENT AND CERTAIN LEGAL

REQUIREMENTS ON MILITARY INSTALLATIONS AND

RANGES AND PLAN TO ADDRESS ENCROACHMENT.

(a) STUDY REQUIRED.—The Secretary of Defense shall conduct

a study on the impact, if any, of the following types of encroachment issues affecting military installations and operational ranges:

(1) Civilian community encroachment on those military installations and ranges whose operational training activities, research, development, test, and evaluation activities, or other

operational, test and evaluation, maintenance, storage, disposal, or other support functions require, or in the future reasonably may require, safety or operational buffer areas. The requirement for such a buffer area may be due to a variety of

factors, including air operations, ordnance operations and storage, or other activities that generate or might generate noise,

electro-magnetic interference, ordnance arcs, or environmental

impacts that require or may require safety or operational buffer areas.

(2) Compliance by the Department of Defense with State

Implementation Plans for Air Quality under section 110 of the

Clean Air Act (42 U.S.C. 7410).

(3) Compliance by the Department of Defense with the

Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.).

(b) MATTERS TO BE INCLUDED WITH RESPECT TO CIVILIAN

COMMUNITY ENCROACHMENTS.—With respect to paragraph (1) of

subsection (a), the study shall include the following:

(1) A list of all military installations described in subsection (a)(1) at which civilian community encroachment is occurring.
FY04 ENVIRONMENTAL RESTORATION AND CONSERVATION 898

(2) A description and analysis of the types and degree of

such civilian community encroachment at each military installation included on the list.

(3) An analysis, including views and estimates of the Secretary of Defense, of the current and potential future impact

of such civilian community encroachment on operational training activities, research, development, test, and evaluation activities, and other significant operational, test and evaluation,

maintenance, storage, disposal, or other support functions performed by military installations included on the list. The analysis shall include the following:

(A) A review of training and test ranges at military installations, including laboratories and technical centers of

the military departments, included on the list.

(B) A description and explanation of the trends of such

encroachment, as well as consideration of potential future

readiness problems resulting from unabated encroachment.

(4) An estimate of the costs associated with current and

anticipated partnerships between the Department of Defense

and non-Federal entities to create buffer zones to preclude further development around military installations included on the

list, and the costs associated with the conveyance of surplus

property around such military installations for purposes of creating buffer zones.

(5) Options and recommendations for possible legislative or

budgetary changes necessary to mitigate current and anticipated future civilian community encroachment problems.

(c) MATTERS TO BE INCLUDED WITH RESPECT TO COMPLIANCE

WITH SPECIFIED LAWS.—With respect to paragraphs (2) and (3) of

subsection (a), the study shall include the following:

(1) A list of all military installations and other locations at

which the Armed Forces are encountering problems related to

compliance with the laws specified in such paragraphs.

(2) A description and analysis of the types and degree of

compliance problems encountered.

(3) An analysis, including views and estimates of the Secretary of Defense, of the current and potential future impact

of such compliance problems on the following functions performed at military installations:

(A) Operational training activities.

(B) Research, development, test, and evaluation activities.

(C) Other significant operational, test and evaluation,

maintenance, storage, disposal, or other support functions.

(4) A description and explanation of the trends of such

compliance problems, as well as consideration of potential future readiness problems resulting from such compliance problems.

(d) PLAN TO RESPOND TO ENCROACHMENT ISSUES.—On the

basis of the study conducted under subsection (a), including the

specific matters required to be addressed by subsections (b) and (c),

the Secretary of Defense shall prepare a plan to respond to the encroachment issues described in subsection (a) affecting military installations and operational ranges.
899 FY04 ENVIRONMENTAL RESTORATION AND CONSERVATION

(e) REPORTING REQUIREMENTS.—The Secretary of Defense shall

submit to the Committee on Armed Services of the Senate and the

Committee on Armed Services of the House of Representatives the

following reports regarding the study conducted under subsection

(a), including the specific matters required to be addressed by subsections (b) and (c):

(1) Not later than January 31, 2004, an interim report describing the progress made in conducting the study and containing the information collected under the study as of that

date.

(2) Not later than January 31, 2006, a report containing

the results of the study and the encroachment response plan

required by subsection (d).

(3) Not later than January 31, 2007, and each January 31

thereafter through January 31, 2010, a report describing the

progress made in implementing the encroachment response

plan.

SEC. 321. COOPERATIVE WATER USE MANAGEMENT RELATED TO

FORT HUACHUCA, ARIZONA, AND SIERRA VISTA SUBWATERSHED.

(a) LIMITATION ON FEDERAL RESPONSIBILITY FOR CIVILIAN

WATER CONSUMPTION IMPACTS.—

(1) LIMITATION.—For purposes of section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536), concerning any

present and future Federal agency action at Fort Huachuca,

Arizona, water consumption by State, local, and private entities off of the installation that is not a direct or indirect effect

of the agency action or an effect of other activities that are

interrelated or interdependent with that agency action, shall

not be considered in determining whether such agency action

is likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat.

(2) VOLUNTARY REGIONAL CONSERVATION EFFORTS.—Nothing in this subsection shall prohibit Federal agencies operating

at Fort Huachuca from voluntarily undertaking efforts to mitigate water consumption.

(3) DEFINITION OF WATER CONSUMPTION.—In this subsection, the term ‘‘water consumption’’ means all water use off

of the installation from any source.

(4) EFFECTIVE DATE.—This subsection applies only to Federal agency actions regarding which the Federal agency involved determines that consultation, or reinitiation of consultation, under section 7 of the Endangered Species Act of 1973 (16

U.S.C. 1536) is required with regard to an agency action at

Fort Huachuca on or after the date of the enactment of this

Act.

(b) RECOGNITION OF UPPER SAN PEDRO PARTNERSHIP.—Congress hereby recognizes the Upper San Pedro Partnership, Arizona,

a partnership of Fort Huachuca, Arizona, other Federal, State, and

local governmental and nongovernmental entities, and its efforts to

establish a collaborative water use management program in the Sierra Vista Subwatershed, Arizona, to achieve the sustainable yield

of the regional aquifer, so as to protect the Upper San Pedro River,
FY04 ENVIRONMENTAL RESTORATION AND CONSERVATION 900

Arizona, and the San Pedro Riparian National Conservation Area,

Arizona.

(c) REPORT ON WATER USE MANAGEMENT AND CONSERVATION

OF REGIONAL AQUIFER.— (1) IN GENERAL.—The Secretary of the Interior shall prepare, in consultation with the Secretary of Agriculture and the

Secretary of Defense and in cooperation with the other members of the Partnership, a report on the water use management

and conservation measures that have been implemented and

are needed to restore and maintain the sustainable yield of the

regional aquifer by and after September 30, 2011. The Secretary of the Interior shall submit the report to Congress not

later than December 31, 2004.

(2) PURPOSE.—The purpose of the report is to set forth

measurable annual goals for the reduction of the overdrafts of

the groundwater of the regional aquifer, to identify specific

water use management and conservation measures to facilitate

the achievement of such goals, and to identify impediments in

current Federal, State, and local laws that hinder efforts on

the part of the Partnership to mitigate water usage in order

to restore and maintain the sustainable yield of the regional

aquifer by and after September 30, 2011.

(3) REPORT ELEMENTS.—The report shall use data from existing and ongoing studies and include the following elements:

(A) The net quantity of water withdrawn from and recharged to the regional aquifer in the one-year period preceding the date of the submission of the report.

(B) The quantity of the overdraft of the regional aquifer to be reduced by the end of each of fiscal years 2005

through 2011 to achieve sustainable yield.

(C) With respect to the reduction of overdraft for each

fiscal year as specified under subparagraph (B), an allocation of responsibility for the achievement of such reduction

among the water-use controlling members of the Partnership who have the authority to implement measures to

achieve such reduction.

(D) The water use management and conservation

measures to be undertaken by each water-use controlling

member of the Partnership to contribute to the reduction

of the overdraft for each fiscal year as specified under subparagraph (B), and to meet the responsibility of each such

member for each such reduction as allocated under subparagraph (C), including—

(i) a description of each measure;

(ii) the cost of each measure;

(iii) a schedule for the implementation of each

measure;

(iv) a projection by fiscal year of the amount of the

contribution of each measure to the reduction of the

overdraft; and

(v) a list of existing laws that impede full implementation of any measure.

(E) The monitoring and verification activities to be undertaken by the Partnership to measure the reduction of

the overdraft for each fiscal year and the contribution of
901 FY04 ENVIRONMENTAL RESTORATION AND CONSERVATION

each member of the Partnership to the reduction of the

overdraft.

(d) ANNUAL REPORT ON PROGRESS TOWARD SUSTAINABLE

YIELD.—(1) IN GENERAL.—Not later than October 31, 2005, and

each October 31 thereafter through 2011, the Secretary of the

Interior shall submit, on behalf of the Partnership, to Congress

a report on the progress of the Partnership during the preceding fiscal year toward achieving and maintaining the sustainable yield of the regional aquifer by and after September

30, 2011.

(2) REPORT ELEMENTS.—Each report shall include the following:

(A) The quantity of the overdraft of the regional aquifer reduced during the reporting period, and whether such

reduction met the goal specified for such fiscal year under

subsection (c)(3)(B).

(B) The water use management and conservation

measures undertaken by each water-use controlling member of the Partnership in the fiscal year covered by such

report, including the extent of the contribution of such

measures to the reduction of the overdraft for such fiscal

year.

(C) The legislative accomplishments made during the

fiscal year covered by such report in removing legal impediments that hinder the mitigation of water use by

members of the Partnership.

(e) VERIFICATION INFORMATION.—Information used to verify

overdraft reductions of the regional aquifer shall include at a minimum the following:

(1) The annual report of the Arizona Corporation Commission on annual groundwater pumpage of the private water

companies in the Sierra Vista Subwatershed.

(2) The San Pedro base flow monitoring record of the

Charleston flow gauge of the United States Geological Survey.

(3) Current surveys of the groundwater levels in area wells

as reported by the Arizona Department of Water Resources

and by Federal agencies.

(f) SENSE OF CONGRESS.—It is the sense of Congress that any

future appropriations to the Partnership should take into account

whether the Partnership has met its annual goals for overdraft reduction.

(g) DEFINITIONS.—In this section:

(1) The term ‘‘Partnership’’ means the Upper San Pedro

Partnership, Arizona.

(2) The term ‘‘regional aquifer’’ means the Sierra Vista

Subwatershed regional aquifer, Arizona.

(3) The term ‘‘water-use controlling member’’ has the

meaning given that term by the Partnership.

SEC. 322. TASK FORCE ON RESOLUTION OF CONFLICT BETWEEN MILITARY TRAINING AND ENDANGERED SPECIES PROTECTION AT BARRY M. GOLDWATER RANGE, ARIZONA.

(a) TASK FORCE.—The Secretary of Defense shall establish a

task force to determine and assess various means of resolving the

conflict between the dual objectives at Barry M. Goldwater Range,
FY04 ENVIRONMENTAL RESTORATION AND CONSERVATION 902

Arizona, of the full utilization of live ordnance delivery areas for

military training and the protection of endangered species that are

present at Barry M. Goldwater Range.

(b) COMPOSITION.—The task force shall be composed of the following members:

(1) The Air Force range officer, who shall serve as chairperson of the task force.

(2) The range officer at Barry M. Goldwater Range.

(3) The commander of Luke Air Force Base, Arizona.

(4) The commander of Marine Corps Air Station, Yuma,

Arizona.

(5) The Director of the United States Fish and Wildlife

Service.

(6) The manager of the Cabeza Prieta National Wildlife

Refuge, Arizona.

(7) A representative of the Department of Game and Fish

of the State of Arizona, selected by the Secretary in consultation with the Governor of the State of Arizona.

(8) A representative of a wildlife interest group in the

State of Arizona, selected by the Secretary in consultation with

wildlife interest groups in the State of Arizona.

(9) A representative of an environmental interest group

(other than a wildlife interest group) in the State of Arizona,

as selected by the Secretary in consultation with environmental interest groups in the State of Arizona.

(c) DUTIES.—The task force shall—

(1) assess the effects of the presence of endangered species

on military training activities in the live ordnance delivery

areas at Barry M. Goldwater Range and in any other areas of

the range that are adversely effected by the presence of endangered species;

(2) determine various means of addressing any significant

adverse effects on military training activities on Barry M.

Goldwater Range that are identified pursuant to paragraph (1);

and

(3) determine the benefits and costs associated with the

implementation of each means identified under paragraph (2).

(d) USE OF EXPERTS.—The chairperson of the task force may

secure for the task force the services of such experts with respect

to the duties of the task force as the chairperson considers advisable to carry out such duties.

(e) REPORT.—Not later than February 28, 2005, the task force

shall submit to Congress a report containing—

(1) a description of the assessments and determinations

made under subsection (c);

(2) such recommendations for legislative and administrative action as the task force considers appropriate; and

(3) an evaluation of the utility of task force proceedings as

a means of resolving conflicts between military training objectives and protection of endangered species at other military

training and testing ranges.

SEC. 323. ø42 U.S.C. 300j–18 note¿ PUBLIC HEALTH ASSESSMENT OF EXPOSURE TO PERCHLORATE.

(a) EPIDEMIOLOGICAL STUDY OF EXPOSURE TO PERCHLORATE.—

The Secretary of Defense shall provide for an independent epide-
903 FY02 ENVIRONMENTAL RESTORATION AND CONSERVATION

miological study of exposure to perchlorate in drinking water. The

entity conducting the study shall—

(1) assess the incidence of thyroid disease and measurable

effects of thyroid function in relation to exposure to perchlorate;

(2) ensure that the study is of sufficient scope and scale to

permit the making of meaningful conclusions of the measurable public health threat associated with exposure to perchlorate, especially the threat to sensitive subpopulations; and

(3) examine thyroid function, including measurements of

urinary iodine and thyroid hormone levels, in a sufficient number of pregnant women, neonates, and infants exposed to perchlorate in drinking water and match measurements of perchlorate levels in the drinking water of each study participant

in order to permit the development of meaningful conclusions

on the public health threat to individuals exposed to perchlorate.

(b) REVIEW OF EFFECTS OF PERCHLORATE ON ENDOCRINE SYSTEM.—The Secretary shall provide for an independent review of the

effects of perchlorate on the human endocrine system. The entity

conducting the review shall assess—

(1) available data on human exposure to perchlorate, including clinical data and data on exposure of sensitive subpopulations, and the levels at which health effects were observed; and

(2) available data on other substances that have endocrine

effects similar to perchlorate to which the public is frequently

exposed.

(c) PERFORMANCE OF STUDY AND REVIEW.—(1) The Secretary

shall provide for the performance of the study under subsection (a)

through the Centers for Disease Control, the National Institutes of

Health, or another Federal entity with experience in environmental

toxicology selected by the Secretary.

(2) The Secretary shall provide for the performance of the review under subsection (b) through the Centers for Disease Control,

the National Institutes of Health, or another appropriate Federal

research entity with experience in human endocrinology selected by

the Secretary. The Secretary shall ensure that the panel conducting the review is composed of individuals with expertise in

human endocrinology.

(d) REPORTING REQUIREMENTS.—Not later than June 1, 2005,

the Federal entities conducting the study and review under this

section shall submit to the Secretary reports containing the results

of the study and review.

* * * * * * *

b. National Defense Authorization Act for Fiscal Year 2002

(Public Law 107–107, approved Dec. 28, 2001)

TITLE III—OPERATION AND MAINTENANCE

* * * * * * *
FY02 ENVIRONMENTAL RESTORATION AND CONSERVATION 904

Subtitle B—Environmental Provisions

* * * * * * *

SEC. 317. ø10 U.S.C. 2865 note¿ DEPARTMENT OF DEFENSE ENERGY EFFICIENCY PROGRAM.

(a) SENSE OF CONGRESS.—It is the sense of Congress that the

Secretary of Defense should work to implement fuel efficiency reforms that allow for investment decisions based on the true cost of

delivered fuel, strengthen the linkage between warfighting capability and fuel logistics requirements, provide high-level leadership

encouraging fuel efficiency, target fuel efficiency improvements

through science and technology investment, and include fuel efficiency in requirements and acquisition processes.

(b) ENERGY EFFICIENCY PROGRAM.—The Secretary shall carry

out a program to significantly improve the energy efficiency of facilities of the Department of Defense through 2010. The Secretary

shall designate a senior official of the Department of Defense to be

responsible for managing the program for the Department and a

senior official of each military department to be responsible for

managing the program for such department.

(c) ENERGY EFFICIENCY GOALS.—The goal of the energy efficiency program shall be to achieve reductions in energy consumption by facilities of the Department of Defense as follows:

(1) In the case of industrial and laboratory facilities, reductions in the average energy consumption per square foot of

such facilities, per unit of production or other applicable unit,

relative to energy consumption in 1990—

(A) by 20 percent by 2005; and

(B) by 25 percent by 2010.

(2) In the case of other facilities, reductions in average energy consumption per gross square foot of such facilities, relative to energy consumption per gross square foot in 1985—

(A) by 30 percent by 2005; and

(B) by 35 percent by 2010.

(d) STRATEGIES FOR IMPROVING ENERGY EFFICIENCY.—In order

to achieve the goals set forth in subsection (c), the Secretary shall,

to the maximum extent practicable—

(1) purchase energy-efficient products, as so designated by

the Environmental Protection Agency and the Department of

Energy, and other products that are energy-efficient;

(2) utilize energy savings performance contracts, utility energy-efficiency service contracts, and other contracts designed

to achieve energy conservation;

(3) use life-cycle cost analysis, including assessment of lifecycle energy costs, in making decisions about investments in

products, services, construction, and other projects;

(4) conduct energy efficiency audits for approximately 10

percent of all Department of Defense facilities each year;

(5) explore opportunities for energy efficiency in industrial

facilities for steam systems, boiler operation, air compressor

systems, industrial processes, and fuel switching; and

(6) retire inefficient equipment on an accelerated basis

where replacement results in lower life-cycle costs.

(e) REPORTING REQUIREMENTS.—Not later than January 1,

2002, and each January 1 thereafter through 2010, the Secretary
905 FY02 ENVIRONMENTAL RESTORATION AND CONSERVATION

shall submit to the congressional defense committees the report required to be prepared by the Secretary pursuant to section 303 of

Executive Order 13123 (64 Fed. Reg. 30851; 42 U.S.C. 8251 note)

regarding the progress made toward achieving the energy efficiency

goals of the Department of Defense.

SEC. 318. ø10 U.S.C. 2302 note¿ PROCUREMENT OF ALTERNATIVE

FUELED AND HYBRID LIGHT DUTY TRUCKS.

(a) DEFENSE FLEETS NOT COVERED BY REQUIREMENT IN ENERGY POLICY ACT OF 1992.—(1) The Secretary of Defense shall coordinate with the Administrator of General Services to ensure that

only hybrid vehicles are procured by the Administrator for the Department of Defense fleet of light duty trucks that is not in a fleet

of vehicles to which section 303 of the Energy Policy Act of 1992

(42 U.S.C. 13212) applies.

(2) The Secretary, in consultation with the Administrator, may

waive the policy regarding the procurement of hybrid vehicles in

paragraph (1) to the extent that the Secretary determines

necessary—

(A) in the case of trucks that are exempt from the requirements of section 303 of the Energy Policy Act of 1992 for national security reasons under subsection (b)(3)(E) of such section, to meet specific requirements of the Department of Defense for capabilities of light duty trucks;

(B) to procure vehicles consistent with the standards applicable to the procurement of fleet vehicles for the Federal Government; or

(C) to adjust to limitations on the commercial availability

of light duty trucks that are hybrid vehicles.

(3) This subsection applies with respect to procurements of

light duty trucks in fiscal year 2005 and subsequent fiscal years.

(b) REQUIREMENT TO EXCEED REQUIREMENT IN ENERGY POLICY

ACT OF 1992.—(1) The Secretary of Defense shall coordinate with

the Administrator of General Services to ensure that, of the light

duty trucks procured in fiscal years after fiscal year 2004 for the

fleets of light duty vehicles of the Department of Defense to which

section 303 of the Energy Policy Act of 1992 applies—

(A) five percent of the total number of such trucks that are

procured in each of fiscal years 2005 and 2006 are alternative

fueled vehicles or hybrid vehicles; and

(B) ten percent of the total number of such trucks that are

procured in each fiscal year after fiscal year 2006 are alternative fueled vehicles or hybrid vehicles.

(2) Light duty trucks acquired for the Department of Defense

that are counted to comply with section 303 of the Energy Policy

Act of 1992 for a fiscal year shall be counted to determine the total

number of light duty trucks procured for the Department of Defense for that fiscal year for the purposes of paragraph (1), but

shall not be counted to satisfy the requirement in that paragraph.

(c) REPORT ON PLANS FOR IMPLEMENTATION.—At the same time

that the President submits the budget for fiscal year 2003 to Congress under section 1105(a) of title 31, United States Code, the Secretary shall submit to Congress a report summarizing the plans for

carrying out subsections (a) and (b).

(d) DEFINITIONS.—In this section:
FY99 ENVIRONMENTAL RESTORATION AND CONSERVATION 906

(1) The term ‘‘hybrid vehicle’’ means a motor vehicle that

draws propulsion energy from onboard sources of stored energy

that are both—

(A) an internal combustion or heat engine using combustible fuel; and

(B) a rechargeable energy storage system.

(2) The term ‘‘alternative fueled vehicle’’ has the meaning

given that term in section 301 of the Energy Policy Act of 1992

(42 U.S.C. 13211).

* * * * * * *

c. Strom Thurmond National Defense Authorization Act for

Fiscal Year 1999

(Public Law 105–261, approved Oct. 17, 1998)

TITLE III—OPERATION AND MAINTENANCE

* * * * * * *

Subtitle C—Environmental Provisions

SEC. 321. ø10 U.S.C. 2701 note¿ SETTLEMENT OF CLAIMS OF FOREIGN

GOVERNMENTS FOR ENVIRONMENTAL CLEANUP OF

OVERSEAS SITES FORMERLY USED BY THE DEPARTMENT

OF DEFENSE.

(a) NOTICE OF NEGOTIATIONS.—The President shall notify Congress before entering into any negotiations for the ex-gratia settlement of the claims of a government of another country against the

United States for environmental cleanup of sites in that country

that were formerly used by the Department of Defense.

(b) AUTHORIZATION REQUIRED FOR USE OF FUNDS FOR PAYMENT

OF SETTLEMENT.—No funds may be used for any payment under an

ex-gratia settlement of any claims described in subsection (a) unless the use of the funds for that purpose is specifically authorized

by law or international agreement, including a treaty.

SEC. 322. AUTHORITY TO PAY NEGOTIATED SETTLEMENT FOR ENVIRONMENTAL CLEANUP OF FORMERLY USED DEFENSE

SITES IN CANADA.

(a) FINDINGS.—Congress makes the following findings with respect to the authorization of payment of settlement with Canada

in subsection (b) regarding environmental cleanup at formerly used

defense sites in Canada:

(1) A unique and longstanding national security alliance

exists between the United States and Canada.

(2) The sites covered by the settlement were formerly used

by the United States and Canada for their mutual defense.

(3) There is no formal treaty or international agreement

between the United States and Canada regarding the environmental cleanup of the sites.

(4) Environmental contamination at some of the sites could

pose a substantial risk to the health and safety of the United

States citizens residing in States near the border between the

United States and Canada.

(5) The United States and Canada reached a negotiated

agreement for an ex-gratia reimbursement of Canada in full
907 FY99 ENVIRONMENTAL RESTORATION AND CONSERVATION

satisfaction of claims of Canada relating to environmental contamination which agreement was embodied in an exchange of

Notes between the Government of the United States and the

Government of Canada.

(6) There is a unique factual basis for authorizing a reimbursement of Canada for environmental cleanup at sites in

Canada after the United States departure from such sites.

(7) The basis for and authorization of such reimbursement

does not extend to similar claims by other nations.

(8) The Government of Canada is committed to spending

the entire $100,000,000 of the reimbursement authorized in

subsection (b) in the United States, which will benefit United

States industry and United States workers.

(b) AUTHORITY TO MAKE PAYMENTS.—(1) Subject to subsection

(c), the Secretary of Defense may, using funds specified under subsection (d), make a payment described in paragraph (2) for each fiscal year through fiscal year 2008 for purposes of the ex-gratia reimbursement of Canada in full satisfaction of any and all claims asserted against the United States by Canada for environmental

cleanup of sites in Canada that were formerly used for the mutual

defense of the United States and Canada.

(2) A payment referred to in paragraph (1) is a payment of

$10,000,000, in constant fiscal year 1996 dollars, into the Foreign

Military Sales Trust Account for purposes of Canada.

(c) CONDITION ON AUTHORITY FOR SUBSEQUENT FISCAL

YEARS.—A payment may be made under subsection (b) for a fiscal

year after fiscal year 1999 only if the Secretary of Defense submits

to Congress with the budget for such fiscal year under section 1105

of title 31, United States Code, evidence that the cumulative

amount expended by the Government of Canada for environmental

cleanup activities in Canada during any fiscal years before such fiscal year in which a payment under that subsection was authorized

was an amount equal to or greater than the aggregate amount of

the payments under that subsection during such fiscal years.

(d) SOURCE OF FUNDS.—(1) The payment under subsection (b)

for fiscal year 1998 shall be made from amounts appropriated pursuant to section 301(5) of the National Defense Authorization Act

for Fiscal Year 1998 (Public Law 105–85; 111 Stat. 1669).

(2) The payment under subsection (b) for fiscal year 1999 shall

be made from amounts appropriated pursuant to section 301(5).

(3) For a fiscal year after fiscal year 1999, a payment may be

made under subsection (b) from amounts appropriated pursuant to

the authorization of appropriations for the Department of Defense

for such fiscal year for Operation and Maintenance, Defense-Wide.

* * * * * * *
Sec. 351 ENVIRONMENTAL RESTORATION AND CONSERVATION 908

d. Pilot Program for Sale of Air Pollution Emission

Reduction Incentives

(Section 351 of the National Defense Authorization Act for Fiscal Year 1998 (Public

Law 105–85, approved Nov. 18, 1997))

SEC. 351. ø10 U.S.C. 2701 note¿ PILOT PROGRAM FOR THE SALE OF AIR

POLLUTION EMISSION REDUCTION INCENTIVES.

(a) AUTHORITY.—(1) The Secretary of Defense may, in consultation with the Administrator of General Services, carry out a pilot

program to assess the feasibility and advisability of the sale of economic incentives for the reduction of emission of air pollutants attributable to a facility of a military department.

(2) The Secretary may not carry out the pilot program after

September 30, 2003.

(b) INCENTIVES AVAILABLE FOR SALE.—(1) Under the pilot program, the Secretary may sell economic incentives for the reduction

of emission of air pollutants attributable to a facility of a military

department only if such incentives are not otherwise required for

the activities or operations of the military department.

(2) The Secretary may not, under the pilot program, sell economic incentives attributable to the closure or realignment of a

military installation under a base closure law.

(3) If the Secretary determines that additional sales of economic incentives are likely to result in amounts available for allocation under subsection (c)(2) in a fiscal year in excess of the limitation set forth in subparagraph (B) of that subsection, the Secretary shall not carry out such additional sales in that fiscal year.

(c) USE OF PROCEEDS.—(1) The proceeds of sale of economic incentives attributable to a facility of a military department shall be

credited to the funds available to the facility for the costs of identifying, quantifying, or valuing economic incentives for the reduction

of emission of air pollutants. The amount credited shall be equal

to the cost incurred in identifying, quantifying, or valuing the economic incentives sold.

(2)(A)(i) If after crediting under paragraph (1) a balance remains, the amount of such balance shall be available to the Department of Defense for allocation by the Secretary to the military departments for programs, projects, and activities necessary for compliance with Federal environmental laws, including the purchase of

economic incentives for the reduction of emission of air pollutants.

(ii) To the extent practicable, amounts allocated to the military

departments under this subparagraph shall be made available to

the facilities that generated the economic incentives providing the

basis for the amounts.

(B) The total amount allocated under this paragraph in a fiscal

year from sales of economic incentives may not equal or exceed

$500,000.

(3) If after crediting under paragraph (1) a balance remains in

excess of an amount equal to the limitation set forth in paragraph

(2)(B), the amount of the excess shall be covered over into the

Treasury as miscellaneous receipts.

(4) Funds credited under paragraph (1) or allocated under

paragraph (2) shall be merged with the funds to which credited or

allocated, as the case may be, and shall be available for the same

purposes and for the same period as the funds with which merged.
909 FY93 ENVIRONMENTAL RESTORATION AND CONSERVATION

(d) DEFINITIONS.—In this section:

(1) The term ‘‘base closure law’’ means the following:

(A) Section 2687 of title 10, United States Code.

(B) Title II of the Defense Authorization Amendments

and Base Closure and Realignment Act (Public Law 100–

526; 10 U.S.C. 2687 note).

(C) The Defense Base Closure and Realignment Act of

1990 (part A of title XXIX of Public Law 101–510; 10

U.S.C. 2687 note).

(2) The term ‘‘economic incentives for the reduction of

emission of air pollutants’’ means any transferable economic

incentives (including marketable permits and emission rights)

necessary or appropriate to meet air quality requirements

under the Clean Air Act (42 U.S.C. 7401 et seq.).

e. Environmental Education and Training Program for

Defense Personnel

(Section 328 of the National Defense Authorization Act for Fiscal Year 1995 (Public

Law 103–337, approved Oct. 5, 1994))

SEC. 328. ø10 U.S.C. 2701 note¿ ENVIRONMENTAL EDUCATION AND

TRAINING PROGRAM FOR DEFENSE PERSONNEL.

(a) ESTABLISHMENT.—The Secretary of Defense shall establish

and conduct an education and training program for members of the

Armed Forces and civilian employees of the Department of Defense

whose responsibilities include planning or executing the environmental mission of the Department. The Secretary shall conduct the

program to ensure that such members and employees obtain and

maintain the knowledge and skill required to comply with existing

environmental laws and regulations.

(b) IDENTIFICATION OF MILITARY FACILITIES WITH ENVIRON- MENTAL TRAINING EXPERTISE.—As part of the program, the Secretary may identify military facilities that have existing expertise

(or the capacity to develop such expertise) in conducting education

and training activities in various environmental disciplines. In the

case of a military facility identified under this subsection, the Secretary should encourage the use of the facility by members and employees referred to in subsection (a) who are not under the jurisdiction of the military department operating the facility.

f. National Defense Authorization Act for Fiscal Year 1993

(Public Law 102–484, approved Oct. 23, 1992)

TITLE III—OPERATION AND MAINTENANCE

* * * * * * *

Subtitle C—Environmental Provisions

* * * * * * *

SEC. 323. ø10 U.S.C. 2701 note¿ PILOT PROGRAM FOR EXPEDITED ENVIRONMENTAL RESPONSE ACTIONS.

(a) ESTABLISHMENT.—The Secretary of Defense shall establish

a pilot program to expedite the performance of on-site environmental restoration at—
FY93 ENVIRONMENTAL RESTORATION AND CONSERVATION 910

(1) military installations scheduled for closure under title

II of the Defense Authorization Amendments and Base Closure

and Realignment Act (Public Law 100–526; 10 U.S.C. 2687

note);

(2) military installations scheduled for closure under the

Defense Base Closure and Realignment Act of 1990 (part A of

title XXIX of Public Law 101–510; 10 U.S.C. 2687 note); and

(3) facilities for which the Secretary is responsible under

the Defense Environmental Restoration Program established

under section 2701 of title 10, United States Code.

(b) SELECTION OF INSTALLATIONS AND FACILITIES.—(1) For participation in the pilot program, the Secretary shall select—

(A) 2 military installations referred to in subsection (a)(1);

(B) 4 military installations referred to in subsection (a)(2),

consisting of—

(i) 2 military installations scheduled for closure as of

the date of the enactment of this Act; and

(ii) 2 military installations included in the list transmitted by the Secretary no later than April 15, 1993, pursuant to section 2903(c)(1) of the Defense Base Closure

and Realignment Act of 1990 (10 U.S.C. 2687 note) and

recommended in a report transmitted by the President in

that year pursuant to section 2903(e) of such Act and for

which a joint resolution disapproving such recommendations is not enacted by the deadline set forth in section

2904(b) of such Act; and

(C) not less than 4 facilities referred to in subsection (a)(3)

with respect to each military department.

(2)(A) Except as provided in subparagraph (B), the selections

under paragraph (1) shall be made not later than 60 days after the

date of the enactment of this Act [Oct. 23, 1992].

(B) The selections under paragraph (1) of military installations

described in subparagraph (B)(ii) of such paragraph shall be made

not later than 60 days after the date on which the deadline (set

forth in section 2904(b) of such Act) for enacting a joint resolution

of disapproval with respect to the report transmitted by the President has passed.

(3) The installations and facilities selected under paragraph (1)

shall be representative of—

(A) a variety of the environmental restoration activities required for facilities under the Defense Environmental Restoration Program and for military installations scheduled for closure under the Defense Authorization Amendments and Base

Closure and Realignment Act (10 U.S.C. 2687 note) and the

Defense Base Closure and Realignment Act of 1990 (10 U.S.C.

2687 note); and

(B) the different sizes of such environmental restoration

activities to provide, to the maximum extent practicable, opportunities for the full range of business sizes to enter into environmental restoration contracts with the Department of Defense and with prime contractors to perform activities under

the pilot program.

(c) EXECUTION OF PROGRAM.—Subject to subsection (d), and to

the maximum extent possible, the Secretary shall, in order to eliminate redundant tasks and to accelerate environmental restoration
911 FY93 ENVIRONMENTAL RESTORATION AND CONSERVATION

at military installations, use the authorities granted in existing law

to carry out the pilot program, including—

(1) the development and use of innovative contracting techniques;

(2) the use of all reasonable and appropriate methods to

expedite necessary Federal and State administrative decisions,

agreements, and concurrences; and

(3) the use (including any necessary request for the use) of

existing authorities to ensure that environmental restoration

activities under the pilot program are conducted expeditiously,

with particular emphasis on activities that may be conducted

in advance of any final plan for environmental restoration.

(d) PROGRAM PRINCIPLES.—The Secretary shall carry out the

pilot program consistent with the following principles:

(1) Activities of the pilot program shall be carried out subject to and in accordance with all applicable Federal and State

laws and regulations.

(2) Competitive procedures shall be used to select the contractors.

(3) The experience and ability of the contractors shall be

considered, in addition to cost, as a factor to be evaluated in

the selection of the contractors.

(e) PROGRAM RESTRICTIONS.—The pilot program established in

this section shall not result in the delay of environmental restoration activities at other military installations and former sites of the

Department of Defense.

SEC. 324. ø10 U.S.C. 2701 note¿ OVERSEAS ENVIRONMENTAL RESTORATION.

It is the sense of the Congress that in carrying out environmental restoration activities at military installations outside the

United States, the President should seek to obtain an equitable division of the costs of environmental restoration with the nation in

which the installation is located.

* * * * * * *

SEC. 326. ø10 U.S.C. 2301 note¿ ELIMINATION OF USE OF CLASS I

OZONE-DEPLETING SUBSTANCES IN CERTAIN MILITARY

PROCUREMENT CONTRACTS.

(a) ELIMINATION OF USE OF CLASS I OZONE-DEPLETING SUB- STANCES.—(1) No Department of Defense contract awarded after

June 1, 1993, may include a specification or standard that requires

the use of a class I ozone-depleting substance or that can be met

only through the use of such a substance unless the inclusion of the

specification or standard in the contract is approved by the senior

acquisition official for the procurement covered by the contract. The

senior acquisition official may grant the approval only if the senior

acquisition official determines (based upon the certification of an

appropriate technical representative of the official) that a suitable

substitute for the class I ozone-depleting substance is not currently

available.

(2)(A)(i) Not later than 60 days after the completion of the first

modification, amendment, or extension after June 1, 1993, of a contract referred to in clause (ii), the senior acquisition official (or the

designee of that official) shall carry out an evaluation of the contract in order to determine—
FY93 ENVIRONMENTAL RESTORATION AND CONSERVATION 912

(I) whether the contract includes a specification or standard that requires the use of a class I ozone-depleting substance

or can be met only through the use of such a substance; and

(II) in the event of a determination that the contract includes such a specification or standard, whether the contract

can be carried out through the use of an economically feasible

substitute for the ozone-depleting substance or through the use

of an economically feasible alternative technology for a technology involving the use of the ozone-depleting substance.

(ii) A contract referred to in clause (i) is any contract in an amount in excess of $10,000,000 that—

(I) was awarded before June 1, 1993; and

(II) as a result of the modification, amendment, or extension described in clause (i), will expire more than 1 year after

the effective date of the modification, amendment, or extension.

(iii) A contract under evaluation under clause (i) may not be

further modified, amended, or extended until the evaluation described in that clause is complete.

(B) If the acquisition official (or designee) determines that an

economically feasible substitute substance or alternative technology

is available for use in a contract under evaluation, the appropriate

contracting officer shall enter into negotiations to modify the contract to require the use of the substitute substance or alternative

technology.

(C) A determination that a substitute substance or technology

is not available for use in a contract under evaluation shall be

made in writing by the senior acquisition official (or designee).

(D) The Secretary of Defense may, consistent with the Federal

Acquisition Regulation, adjust the price of a contract modified

under subparagraph (B) to take into account the use by the contractor of a substitute substance or alternative technology in the

modified contract.

(3) The senior acquisition official authorized to grant an approval under paragraph (1) and the senior acquisition official and

designees authorized to carry out an evaluation and make a determination under paragraph (2) shall be determined under regulations prescribed by the Secretary of Defense. A senior acquisition

official may not delegate the authority provided in paragraph (1).

(4) Each official who grants an approval authorized under

paragraph (1) or makes a determination under paragraph (2)(B)

shall submit to the Secretary of Defense a report on that approval

or determination, as the case may be, as follows:

(A) Beginning on October 1, 1993, and continuing for 8 calendar quarters thereafter, by submitting a report on the approvals granted or determinations made under such authority

during the preceding quarter not later than 30 days after the

end of such quarter.

(B) Beginning on January 1, 1997, and continuing for 4

years thereafter, by submitting a report on the approvals

granted or determinations made under such authority during

the preceding year not later than 30 days after the end of such

year.

(5) The Secretary shall promptly transmit to the Committee on

Armed Services of the Senate and the Committee on Armed Serv-
913 FY93 ENVIRONMENTAL RESTORATION AND CONSERVATION

ices of House of Representatives each report submitted to the Secretary under paragraph (4). The Secretary shall transmit the report in classified and unclassified forms.

(b) COST RECOVERY.—In any case in which a Department of

Defense contract is modified or a specification or standard for such

a contract is waived at the request of a contractor in order to permit the contractor to use in the performance of the contract a substitute for a class I ozone-depleting substance or an alternative

technology for a technology involving the use of a class I ozone-depleting substance, the Secretary of Defense may adjust the price of

the contract in a manner consistent with the Federal Acquisition

Regulation.

(c) DEFINITIONS.—In this section:

(1) The term ‘‘class I ozone-depleting substance’’ means

any substance listed under section 602(a) of the Clean Air Act

(42 U.S.C. 7671a(a)).

(2) The term ‘‘Federal Acquisition Regulation’’ means the

single Government-wide procurement regulation issued under

section 25(c) of the Office of Federal Procurement Policy Act

(41 U.S.C. 421(c)).

* * * * * * *

SEC. 328. LEGACY RESOURCE MANAGEMENT FELLOWSHIP PROGRAM.

(a) ESTABLISHMENT.—There is established the Legacy Fellowship Program in Natural and Cultural Resource Management (in

this section referred to as the ‘‘Legacy Fellowship Program’’). The

Legacy Fellowship Program is a part of the Legacy Resource Management Program established pursuant to section 8120 of the Department of Defense Appropriations Act, 1991 (Public Law 101–

511; 104 Stat. 1905).

(b) PURPOSES.—The purposes of the Legacy Fellowship Program are as follows:

(1) To support the purposes of the Legacy Resource Management Program set forth in section 8120(b) of such Act.

(2) To provide training to civilian personnel and military

personnel in the management of natural and cultural resources.

(c) FELLOWS.—(1) The Legacy Fellowship Program shall be

composed of not less than 3 fellows who shall be appointed by the

Deputy Assistant Secretary of Defense for Environment. Such fellows shall be appointed from among qualified persons in the military and civilian sectors.

(2)(A) Each fellow who is an officer or employee of the United

States shall serve without compensation in addition to that received for the services as an officer or employee of the United

States. Any such service shall be without interruption or loss of

civil service status or privilege.

(B) The Deputy Assistant Secretary of Defense shall fix (in an

amount the Deputy Assistant Secretary determines appropriate)

the compensation of the fellows, if any, who are not officers or employees of the United States. Such fellows shall not be considered

employees of the Federal Government other than for purposes of

chapter 81 of title 5, United States Code.

(3) Fellows shall serve for a term of one year and may be reappointed for an additional term of one year.
FY93 ENVIRONMENTAL RESTORATION AND CONSERVATION 914

(4) The Deputy Assistant Secretary of Defense shall assign the

fellows to an agency, office, or other entity (other than the Office

of the Deputy Assistant Secretary of Defense for Environment) that

is responsible for the implementation of the Legacy Resource Management Program in the Department of Defense. Upon assignment,

the fellow shall assist the agency, office, or entity in carrying out

the purposes of the Legacy Resource Management Program.

(d) FUNDING.—Of the funds authorized to be appropriated in

fiscal year 1993 for the Department of Defense and made available

for the Legacy Resource Management Program, $100,000 may be

used for the Legacy Fellowship Program. Such funds shall be available for obligation without fiscal year limitation.

* * * * * * *

SEC. 330. ø10 U.S.C. 2687 note¿ INDEMNIFICATION OF TRANSFEREES

OF CLOSING DEFENSE PROPERTY.

(a) IN GENERAL.—(1) Except as provided in paragraph (3) and

subject to subsection (b), the Secretary of Defense shall hold harmless, defend, and indemnify in full the persons and entities described in paragraph (2) from and against any suit, claim, demand

or action, liability, judgment, cost or other fee arising out of any

claim for personal injury or property damage (including death, illness, or loss of or damage to property or economic loss) that results

from, or is in any manner predicated upon, the release or threatened release of any hazardous substance, pollutant or contaminant,

or petroleum or petroleum derivative as a result of Department of

Defense activities at any military installation (or portion thereof)

that is closed pursuant to a base closure law.

(2) The persons and entities described in this paragraph are

the following:

(A) Any State (including any officer, agent, or employee of

the State) that acquires ownership or control of any facility at

a military installation (or any portion thereof) described in

paragraph (1).

(B) Any political subdivision of a State (including any officer, agent, or employee of the State) that acquires such ownership or control.

(C) Any other person or entity that acquires such ownership or control.

(D) Any successor, assignee, transferee, lender, or lessee of

a person or entity described in subparagraphs (A) through (C).

(3) To the extent the persons and entities described in paragraph (2) contributed to any such release or threatened release,

paragraph (1) shall not apply.

(b) CONDITIONS.—No indemnification may be afforded under

this section unless the person or entity making a claim for

indemnification—

(1) notifies the Department of Defense in writing within

two years after such claim accrues or begins action within six

months after the date of mailing, by certified or registered

mail, of notice of final denial of the claim by the Department

of Defense;

(2) furnishes to the Department of Defense copies of pertinent papers the entity receives;
915 FY93 ENVIRONMENTAL RESTORATION AND CONSERVATION

(3) furnishes evidence or proof of any claim, loss, or damage covered by this section; and

(4) provides, upon request by the Department of Defense,

access to the records and personnel of the entity for purposes

of defending or settling the claim or action.

(c) AUTHORITY OF SECRETARY OF DEFENSE.—(1) In any case in

which the Secretary of Defense determines that the Department of

Defense may be required to make indemnification payments to a

person under this section for any suit, claim, demand or action, liability, judgment, cost or other fee arising out of any claim for personal injury or property damage referred to in subsection (a)(1), the

Secretary may settle or defend, on behalf of that person, the claim

for personal injury or property damage.

(2) In any case described in paragraph (1), if the person to

whom the Department of Defense may be required to make indemnification payments does not allow the Secretary to settle or defend

the claim, the person may not be afforded indemnification with respect to that claim under this section.

(d) ACCRUAL OF ACTION.—For purposes of subsection (b)(1), the

date on which a claim accrues is the date on which the plaintiff

knew (or reasonably should have known) that the personal injury

or property damage referred to in subsection (a) was caused or contributed to by the release or threatened release of a hazardous substance, pollutant or contaminant, or petroleum or petroleum derivative as a result of Department of Defense activities at any military installation (or portion thereof) described in subsection (a)(1).

(e) RELATIONSHIP TO OTHER LAW.—Nothing in this section

shall be construed as affecting or modifying in any way section

120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9620(h)).

(f) DEFINITIONS.—In this section:

(1) The terms ‘‘facility’’, ‘‘hazardous substance’’, ‘‘release’’,

and ‘‘pollutant or contaminant’’ have the meanings given such

terms under paragraphs (9), (14), (22), and (33) of section 101

of the Comprehensive Environmental Response, Compensation,

and Liability Act of 1980, respectively (42 U.S.C. 9601 (9), (14),

(22), and (33)).

(2) The term ‘‘military installation’’ has the meaning given

such term under section 2687(e)(1) of title 10, United States

Code.

(3) The term ‘‘base closure law’’ means the following:

(A) The Defense Base Closure and Realignment Act of

1990 (10 U.S.C. 2687 note).

(B) Title II of the Defense Authorization Amendments

and Base Closure and Realignment Act (10 U.S.C. 2687

note).

(C) Section 2687 of title 10, United States Code.

(D) Any provision of law authorizing the closure or realignment of a military installation enacted on or after the

date of the enactment of this Act [Oct. 23, 1992].

917

2. SIKES ACT (TITLE I)

(Act of September 15, 1960; Public Law 86–797)

AN ACT To promote effectual planning, development, maintenance, and coordination of wildlife, fish, and game conservation and rehabilitation in military reservations.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Sikes Act’’.

TITLE I—CONSERVATION PROGRAMS ON MILITARY

INSTALLATIONS

SEC. 100. ø16 U.S.C. 670¿ DEFINITIONS.

In this title:

(1) MILITARY INSTALLATION.—The term ‘‘military

installation’’—

(A) means any land or interest in land owned by the

United States and administered by the Secretary of Defense or the Secretary of a military department, except

land under the jurisdiction of the Assistant Secretary of

the Army having responsibility for civil works;

(B) includes all public lands withdrawn from all forms

of appropriation under public land laws and reserved for

use by the Secretary of Defense or the Secretary of a military department; and

(C) does not include any land described in subparagraph (A) or (B) that is subject to an approved recommendation for closure under the Defense Base Closure

and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).

(2) STATE FISH AND WILDLIFE AGENCY.—The term ‘‘State

fish and wildlife agency’’ means the one or more agencies of

State government that are responsible under State law for

managing fish or wildlife resources.

(3) UNITED STATES.—The term ‘‘United States’’ means the

States, the District of Columbia, and the territories and possessions of the United States.

SEC. 101. ø16 U.S.C. 670a¿ (a) AUTHORITY OF SECRETARY OF

DEFENSE.—

(1) PROGRAM.—

(A) IN GENERAL.—The Secretary of Defense shall carry

out a program to provide for the conservation and rehabilitation of natural resources on military installations.
Sec. 101 SIKES ACT 918

(B) INTEGRATED NATURAL RESOURCES MANAGEMENT

PLAN.—To facilitate the program, the Secretary of each

military department shall prepare and implement an integrated natural resources management plan for each military installation in the United States under the jurisdiction of the Secretary, unless the Secretary determines that

the absence of significant natural resources on a particular

installation makes preparation of such a plan inappropriate.

(2) COOPERATIVE PREPARATION.—The Secretary of a military department shall prepare each integrated natural resources management plan for which the Secretary is responsible in cooperation with the Secretary of the Interior, acting

through the Director of the United States Fish and Wildlife

Service, and the head of each appropriate State fish and wildlife agency for the State in which the military installation concerned is located. Consistent with paragraph (4), the resulting

plan for the military installation shall reflect the mutual

agreement of the parties concerning conservation, protection,

and management of fish and wildlife resources.

(3) PURPOSES OF PROGRAM.—Consistent with the use of

military installations to ensure the preparedness of the Armed

Forces, the Secretaries of the military departments shall carry

out the program required by this subsection to provide for—

(A) the conservation and rehabilitation of natural resources on military installations;

(B) the sustainable multipurpose use of the resources,

which shall include hunting, fishing, trapping, and nonconsumptive uses; and

(C) subject to safety requirements and military security, public access to military installations to facilitate the

use.

(4) EFFECT ON OTHER LAW.—Nothing in this title—

(A)(i) affects any provision of a Federal law governing

the conservation or protection of fish and wildlife resources; or

(ii) enlarges or diminishes the responsibility and authority of any State for the protection and management of

fish and resident wildlife; or

(B) except as specifically provided in the other provisions of this section and in section 102, authorizes the Secretary of a military department to require a Federal license or permit to hunt, fish, or trap on a military installation.

(b) REQUIRED ELEMENTS OF PLANS.—Consistent with the use of

military installations to ensure the preparedness of the Armed

Forces, each integrated natural resources management plan prepared under subsection (a)—

(1) shall, to the extent appropriate and applicable, provide

for—

(A) fish and wildlife management, land management,

forest management, and fish- and wildlife-oriented recreation;

(B) fish and wildlife habitat enhancement or modifications;
919 Sec. 101 SIKES ACT

(C) wetland protection, enhancement, and restoration,

where necessary for support of fish, wildlife, or plants;

(D) integration of, and consistency among, the various

activities conducted under the plan;

(E) establishment of specific natural resource management goals and objectives and time frames for proposed action;

(F) sustainable use by the public of natural resources

to the extent that the use is not inconsistent with the

needs of fish and wildlife resources;

(G) public access to the military installation that is

necessary or appropriate for the use described in subparagraph (F), subject to requirements necessary to ensure

safety and military security;

(H) enforcement of applicable natural resource laws

(including regulations);

(I) no net loss in the capability of military installation

lands to support the military mission of the installation;

and

(J) such other activities as the Secretary of the military department determines appropriate;

(2) must be reviewed as to operation and effect by the parties thereto on a regular basis, but not less often than every

5 years; and

(3) may stipulate the issuance of special State hunting and

fishing permits to individuals and require payment of nominal

fees therefor, which fees shall be utilized for the protection,

conservation, and management of fish and wildlife, including

habitat improvement and related activities in accordance with

the integrated natural resources management plan; except

that—

(A) the Commanding Officer of the installation or persons designated by that Officer are authorized to enforce

such special hunting and fishing permits and to collect,

spend, administer, and account for fees for the permits,

acting as agent or agents for the State if the integrated

natural resources management plan so provides, and

(B) the fees collected under this paragraph may not be

expended with respect to other than the military installation on which collected, unless the military installation is

subsequently closed, in which case the fees may be transferred to another military installation to be used for the

same purposes.

(c) After an integrated natural resources management plan is

agreed to under subsection (a)—

(1) no sale of land, or forest products from land, that is

within a military installation covered by that plan may be

made under section 2665 (a) or (b) of title 10, United States

Code; and

(2) no leasing of land that is within the installation may

be made under section 2667 of such title 10;

unless the effects of that sale or leasing are compatible with the

purposes of the plan.
Sec. 101 SIKES ACT 920

1 In subsection (e), a comma should be inserted after ‘‘United States Code’’.

(d) With regard to the implementation and enforcement of integrated natural resources management plans agreed to under subsection (a)—

(1) neither Office of Management and Budget Circular A–

76 nor any successor circular thereto applies to the procurement of services that are necessary for that implementation

and enforcement; and

(2) priority shall be given to the entering into of contracts

for the procurement of such implementation and enforcement

services with Federal and State agencies having responsibility

for the conservation or management of fish or wildlife.

(e) Integrated natural resources management plans agreed to

under the authority of this section and section 102 shall not be

deemed to be, nor treated as, cooperative agreements to which

chapter 63 of title 31, United States Code 1 applies.

(f) REVIEWS AND REPORTS.—

(1) SECRETARY OF DEFENSE.—Not later than March 1 of

each year, the Secretary of Defense shall review the extent to

which integrated natural resources management plans were

prepared or were in effect and implemented in accordance with

this title in the preceding year, and submit a report on the

findings of the review to the committees. Each report shall

include—

(A) the number of integrated natural resources management plans in effect in the year covered by the report,

including the date on which each plan was issued in final

form or most recently revised;

(B) the amounts expended on conservation activities

conducted pursuant to the plans in the year covered by the

report; and

(C) an assessment of the extent to which the plans

comply with this title.

(2) SECRETARY OF THE INTERIOR.—Not later than March 1

of each year and in consultation with the heads of State fish

and wildlife agencies, the Secretary of the Interior shall submit

a report to the committees on the amounts expended by the

Department of the Interior and the State fish and wildlife

agencies in the year covered by the report on conservation activities conducted pursuant to integrated natural resources

management plans.

(3) DEFINITION OF COMMITTEES.—In this subsection, the

term ‘‘committees’’ means—

(A) the Committee on Resources and the Committee

on Armed Services of the House of Representatives; and

(B) the Committee on Armed Services and the Committee on Environment and Public Works of the Senate.

(g) PILOT PROGRAM FOR INVASIVE SPECIES MANAGEMENT FOR

MILITARY INSTALLATIONS IN GUAM.—

(1) INCLUSION OF INVASIVE SPECIES MANAGEMENT.—During

fiscal years 2004 through 2008, the Secretary of Defense shall,

to the extent practicable and conducive to military readiness,

incorporate in integrated natural resources management plans
921 Sec. 103 SIKES ACT

for military installations in Guam the management, control,

and eradication of invasive species—

(A) that are not native to the ecosystem of the military

installation; and

(B) the introduction of which cause or may cause harm

to military readiness, the environment, or human health

and safety.

(2) CONSULTATION.—The Secretary of Defense shall carry

out this subsection in consultation with the Secretary of the Interior.

SEC. 102. ø16 U.S.C. 670b¿ The Secretary of Defense in cooperation with the Secretary of Interior and the appropriate State

agency is authorized to carry out a program for the conservation,

restoration and management of migratory game birds on military

installations, including the issuance of special hunting permits and

the collection of fees therefor, in accordance with an integrated natural resources management plan mutually agreed upon by the Secretary of Defense, the Secretary of the Interior and the appropriate

State agency: Provided, That possession of a special permit for

hunting migratory game birds issued pursuant to this title shall

not relieve the permittee of the requirements of the Migratory Bird

Hunting Stamp Act as amended nor of the requirements pertaining

to State law set forth in Public Law 85–337.

SEC. 103. ø16 U.S.C. 670c¿ PROGRAM FOR PUBLIC OUTDOOR RECREATION.

(a) PROGRAM AUTHORIZED.—The Secretary of Defense is also

authorized to carry out a program for the development, enhancement, operation, and maintenance of public outdoor recreation resources at military installations in accordance with an integrated

natural resources management plan mutually agreed upon by the

Secretary of Defense and the Secretary of the Interior, in consultation with the appropriate State agency designated by the State in

which the installations are located.

(b) ACCESS FOR DISABLED VETERANS, MILITARY DEPENDENTS

WITH DISABILITIES, AND OTHER PERSONS WITH DISABILITIES.—(1)

In developing facilities and conducting programs for public outdoor

recreation at military installations, consistent with the primary

military mission of the installations, the Secretary of Defense shall

ensure, to the extent reasonably practicable, that outdoor recreation opportunities (including fishing, hunting, trapping, wildlife

viewing, boating, and camping) made available to the public also

provide access for persons described in paragraph (2) when topographic, vegetative, and water resources allow access for such persons without substantial modification to the natural environment.

(2) Persons referred to in paragraph (1) are the following:

(A) Disabled veterans.

(B) Military dependents with disabilities.

(C) Other persons with disabilities, when access to a military installation for such persons and other civilians is not otherwise restricted.

(3) The Secretary of Defense shall carry out this subsection in

consultation with the Secretary of Veterans Affairs, national service, military, and veterans organizations, and sporting organiza-
Sec. 103a SIKES ACT 922

tions in the private sector that participate in outdoor recreation

projects for persons described in paragraph (2).

(c) ACCEPTANCE OF DONATIONS.—In connection with the facilities and programs for public outdoor recreation at military installations, in particular the requirement under subsection (b) to provide

access for persons described in paragraph (2) of such subsection,

the Secretary of Defense may accept—

(1) the voluntary services of individuals and organizations;

and

(2) donations of property, whether real or personal.

(d) TREATMENT OF VOLUNTEERS.—A volunteer under subsection

(c) shall not be considered to be a Federal employee and shall not

be subject to the provisions of law relating to Federal employment,

including those relating to hours of work, rates of compensation,

leave, unemployment compensation, and Federal employee benefits,

except that—

(1) for the purposes of the tort claims provisions of chapter

171 of title 28, United States Code, the volunteer shall be considered to be a Federal employee; and

(2) for the purposes of subchapter I of chapter 81 of title

5, United States Code, relating to compensation to Federal employees for work injuries, the volunteer shall be considered to

be an employee, as defined in section 8101(1)(B) of title 5,

United States Code, and the provisions of such subchapter

shall apply.

SEC. 103a. ø16 U.S.C. 670c–1¿ (a) The Secretary of a military

department may enter into cooperative agreements with States,

local governments, nongovernmental organizations, and individuals

to provide for the maintenance and improvement of natural resources on, or to benefit natural and historic research on, Department of Defense installations.

(b) MULTIYEAR AGREEMENTS.—Funds appropriated to the Department of Defense for a fiscal year may be obligated to cover the

cost of goods and services provided under a cooperative agreement

entered into under subsection (a) or through an agency agreement

under section 1535 of title 31, United States Code, during any 18-

month period beginning in that fiscal year, without regard to

whether the agreement crosses fiscal years.

(c) Cooperative agreements entered into under this section

shall be subject to the availability of funds and shall not be considered, nor be treated as, cooperative agreements to which chapter

63 of title 31, United States Code, applies.

SEC. 104. ø16 U.S.C. 670d¿ The Department of Defense is held

free from any liability to pay into the Treasury of the United States

upon the operation of the program or programs authorized by this

title any funds which may have been or may hereafter be collected,

received or expended pursuant to, and for the purposes of, this

title, and which collections, receipts and expenditures have been

properly accounted for to the Comptroller General of the United

States.

SEC. 105. ø16 U.S.C. 670e¿ Nothing herein contained shall be

construed to modify, amend or repeal any provision of Public Law
923 Sec. 108 SIKES ACT

85–337, nor as applying to national forest lands administered pursuant to the provisions of section 9 of the Act of June 7, 1924 (43

Stat. 655), nor section 15 of the Taylor Grazing Act.

SEC. 106. FEDERAL ENFORCEMENT OF OTHER LAWS.

All Federal laws relating to the management of natural resources on Federal land may be enforced by the Secretary of Defense with respect to violations of the laws that occur on military

installations within the United States.

SEC. 107. NATURAL RESOURCES MANAGEMENT SERVICES.

To the extent practicable using available resources, the Secretary of each military department shall ensure that sufficient

numbers of professionally trained natural resources management

personnel and natural resources law enforcement personnel are

available and assigned responsibility to perform tasks necessary to

carry out this title, including the preparation and implementation

of integrated natural resources management plans.

SEC. 108. ø16 U.S.C. 670f¿ (a) The Secretary of Defense shall

expend such funds as may be collected in accordance with the integrated natural resources management plans agreed to under sections 101 and 102 and cooperative agreements agreed to under section 103a of this title, and for no other purpose. All funds that are

so collected shall remain available until expended.

(b) There are authorized to be appropriated to the Secretary of Defense not to exceed $1,500,000 for each of the fiscal years 2004

through 2008, to carry out this title, including the enhancement of

fish and wildlife habitat and the development of public recreation

and other facilities, and to carry out such functions and responsibilities as the Secretary may have under cooperative agreements entered into under section 103a. The Secretary of Defense shall, to

the greatest extent practicable, enter into agreements to utilize the

services, personnel, equipment, and facilities, with or without reimbursement, of the Secretary of the Interior in carrying out the provisions of this section.

(c) There are authorized to be appropriated to the Secretary of

the Interior not to exceed $3,000,000 for each of the fiscal years

2004 through 2008, to carry out such functions and responsibilities

as the Secretary may have under integrated natural resources

management plans to which such Secretary is a party under this

section, including those for the enhancement of fish and wildlife

habitat and the development of public recreation and other facilities.

(d) The Secretary of Defense and the Secretary of the Interior

may each use any authority available to him under other laws relating to fish, wildlife, or plant conservation or rehabilitation for

purposes of carrying out the provisions of this title.
924

3. SECTION 120 OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY

ACT OF 1980

SEC. 120. ø42 U.S.C. 6920¿ FEDERAL FACILITIES.

(a) APPLICATION OF ACT TO FEDERAL GOVERNMENT.—

(1) IN GENERAL.—Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to,

and comply with, this Act in the same manner and to the same

extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 107 of this Act.

Nothing in this section shall be construed to affect the liability

of any person or entity under sections 106 and 107.

(2) APPLICATION OF REQUIREMENTS TO FEDERAL FACILITIES.—All guidelines, rules, regulations, and criteria which are

applicable to preliminary assessments carried out under this

Act for facilities at which hazardous substances are located,

applicable to evaluations of such facilities under the National

Contingency Plan, applicable to inclusion on the National Priorities List, or applicable to remedial actions at such facilities

shall also be applicable to facilities which are owned or operated by a department, agency, or instrumentality of the United

States in the same manner and to the extent as such guidelines, rules, regulations, and criteria are applicable to other facilities. No department, agency, or instrumentality of the

United States may adopt or utilize any such guidelines, rules,

regulations, or criteria which are inconsistent with the guidelines, rules, regulations, and criteria established by the Administrator under this Act.

(3) EXCEPTIONS.—This subsection shall not apply to the extent otherwise provided in this section with respect to applicable time periods. This subsection shall also not apply to any requirements relating to bonding, insurance, or financial responsibility. Nothing in this Act shall be construed to require a

State to comply with section 104(c)(3) in the case of a facility

which is owned or operated by any department, agency, or instrumentality of the United States.

(4) STATE LAWS.—State laws concerning removal and remedial action, including State laws regarding enforcement, shall

apply to removal and remedial action at facilities owned or operated by a department, agency, or instrumentality of the

United States or facilities that are the subject of a deferral

under subsection (h)(3)(C) when such facilities are not included

on the National Priorities List. The preceding sentence shall

not apply to the extent a State law would apply any standard
925 Sec. 120 SECTION 120 of CERCLA

or requirement to such facilities which is more stringent than

the standards and requirements applicable to facilities which

are not owned or operated by any such department, agency, or

instrumentality.

(b) NOTICE.—Each department, agency, and instrumentality of

the United States shall add to the inventory of Federal agency hazardous waste facilities required to be submitted under section 3016

of the Solid Waste Disposal Act (in addition to the information required under section 3016(a)(3) of such Act) information on contamination from each facility owned or operated by the department, agency, or instrumentality if such contamination affects contiguous or adjacent property owned by the department, agency, or

instrumentality or by any other person, including a description of

the monitoring data obtained.

(c) FEDERAL AGENCY HAZARDOUS WASTE COMPLIANCE DOCK- ET.—The Administrator shall establish a special Federal Agency

Hazardous Waste Compliance Docket (hereinafter in this section

referred to as the ‘‘docket’’) which shall contain each of the following:

(1) All information submitted under section 3016 of the

Solid Waste Disposal Act and subsection (b) of this section regarding any Federal facility and notice of each subsequent action taken under this Act with respect to the facility.

(2) Information submitted by each department, agency, or

instrumentality of the United States under section 3005 or

3010 of such Act.

(3) Information submitted by the department, agency, or

instrumentality under section 103 of this Act.

The docket shall be available for public inspection at reasonable

times. Six months after establishment of the docket and every 6

months thereafter, the Administrator shall publish in the Federal

Register a list of the Federal facilities which have been included in

the docket during the immediately preceding 6-month period. Such

publication shall also indicate where in the appropriate regional office of the Environmental Protection Agency additional information

may be obtained with respect to any facility on the docket. The Administrator shall establish a program to provide information to the

public with respect to facilities which are included in the docket

under this subsection.

(d) ASSESSMENT AND EVALUATION.—

(1) IN GENERAL.—The Administrator shall take steps to assure that a preliminary assessment is conducted for each facility on the docket. Following such preliminary assessment, the

Administrator shall, where appropriate—

(A) evaluate such facilities in accordance with the criteria established in accordance with section 105 under the

National Contingency Plan for determining priorities

among releases; and

(B) include such facilities on the National Priorities

List maintained under such plan if the facility meets such

criteria.

(2) APPLICATION OF CRITERIA.—

(A) IN GENERAL.—Subject to subparagraph (B), the criteria referred to in paragraph (1) shall be applied in the
Sec. 120 SECTION 120 of CERCLA 926

same manner as the criteria are applied to facilities that

are owned or operated by persons other than the United

States.

(B) RESPONSE UNDER OTHER LAW.—It shall be an appropriate factor to be taken into consideration for the purposes of section 105(a)(8)(A) that the head of the department, agency, or instrumentality that owns or operates a

facility has arranged with the Administrator or appropriate State authorities to respond appropriately, under

authority of a law other than this Act, to a release or

threatened release of a hazardous substance.

(3) COMPLETION.—Evaluation and listing under this subsection shall be completed in accordance with a reasonable

schedule established by the Administrator.

(e) REQUIRED ACTION BY DEPARTMENT.— (1) RIFS.—Not later than 6 months after the inclusion of

any facility on the National Priorities List, the department,

agency, or instrumentality which owns or operates such facility

shall, in consultation with the Administrator and appropriate

State authorities, commence a remedial investigation and feasibility study for such facility. In the case of any facility which

is listed on such list before the date of the enactment of this

section, the department, agency, or instrumentality which

owns or operates such facility shall, in consultation with the

Administrator and appropriate State authorities, commence

such an investigation and study for such facility within one

year after such date of enactment. The Administrator and appropriate State authorities shall publish a timetable and deadlines for expeditious completion of such investigation and

study.

(2) COMMENCEMENT OF REMEDIAL ACTION; INTERAGENCY

AGREEMENT.—The Administrator shall review the results of

each investigation and study conducted as provided in paragraph (1). Within 180 days thereafter, the head of the department, agency, or instrumentality concerned shall enter into an

interagency agreement with the Administrator for the expeditious completion by such department, agency, or instrumentality of all necessary remedial action at such facility. Substantial continuous physical onsite remedial action shall be commenced at each facility not later than 15 months after completion of the investigation and study. All such interagency agreements, including review of alternative remedial action plans

and selection of remedial action, shall comply with the public

participation requirements of section 117.

(3) COMPLETION OF REMEDIAL ACTIONS.—Remedial actions

at facilities subject to interagency agreements under this section shall be completed as expeditiously as practicable. Each

agency shall include in its annual budget submissions to the

Congress a review of alternative agency funding which could

be used to provide for the costs of remedial action. The budget

submission shall also include a statement of the hazard posed

by the facility to human health, welfare, and the environment

and identify the specific consequences of failure to begin and

complete remedial action.
927 Sec. 120 SECTION 120 of CERCLA

(4) CONTENTS OF AGREEMENT.—Each interagency agreement under this subsection shall include, but shall not be limited to, each of the following:

(A) A review of alternative remedial actions and selection of a remedial action by the head of the relevant department, agency, or instrumentality and the Administrator or, if unable to reach agreement on selection of a remedial action, selection by the Administrator.

(B) A schedule for the completion of each such remedial action.

(C) Arrangements for long-term operation and maintenance of the facility.

(5) ANNUAL REPORT.—Each department, agency, or instrumentality responsible for compliance with this section shall

furnish an annual report to the Congress concerning its

progress in implementing the requirements of this section.

Such reports shall include, but shall not be limited to, each of

the following items:

(A) A report on the progress in reaching interagency

agreements under this section.

(B) The specific cost estimates and budgetary proposals involved in each interagency agreement.

(C) A brief summary of the public comments regarding

each proposed interagency agreement.

(D) A description of the instances in which no agreement was reached.

(E) A report on progress in conducting investigations

and studies under paragraph (1).

(F) A report on progress in conducting remedial actions.

(G) A report on progress in conducting remedial action

at facilities which are not listed on the National Priorities

List.

With respect to instances in which no agreement was reached

within the required time period, the department, agency, or instrumentality filing the report under this paragraph shall include in such report an explanation of the reasons why no

agreement was reached. The annual report required by this

paragraph shall also contain a detailed description on a Stateby-State basis of the status of each facility subject to this section, including a description of the hazard presented by each

facility, plans and schedules for initiating and completing response action, enforcement status (where appropriate), and an

explanation of any postponements or failure to complete response action. Such reports shall also be submitted to the affected States.

(6) SETTLEMENTS WITH OTHER PARTIES.—If the Administrator, in consultation with the head of the relevant department, agency, or instrumentality of the United States, determines that remedial investigations and feasibility studies or

remedial action will be done properly at the Federal facility by

another potentially responsible party within the deadlines provided in paragraphs (1), (2), and (3) of this subsection, the Administrator may enter into an agreement with such party
Sec. 120 SECTION 120 of CERCLA 928

under section 122 (relating to settlements). Following approval

by the Attorney General of any such agreement relating to a

remedial action, the agreement shall be entered in the appropriate United States district court as a consent decree under

section 106 of this Act.

(f) STATE AND LOCAL PARTICIPATION.—The Administrator and

each department, agency, or instrumentality responsible for compliance with this section shall afford to relevant State and local officials the opportunity to participate in the planning and selection of

the remedial action, including but not limited to the review of all

applicable data as it becomes available and the development of

studies, reports, and action plans. In the case of State officials, the

opportunity to participate shall be provided in accordance with section 121.

(g) TRANSFER OF AUTHORITIES.—Except for authorities which

are delegated by the Administrator to an officer or employee of the

Environmental Protection Agency, no authority vested in the Administrator under this section may be transferred, by executive

order of the President or otherwise, to any other officer or employee

of the United States or to any other person.

(h) PROPERTY TRANSFERRED BY FEDERAL AGENCIES.— (1) NOTICE.—After the last day of the 6-month period beginning on the effective date of regulations under paragraph

(2) of this subsection, whenever any department, agency, or instrumentality of the United States enters into any contract for

the sale or other transfer of real property which is owned by

the United States and on which any hazardous substance was

stored for one year or more, known to have been released, or

disposed of, the head of such department, agency, or instrumentality shall include in such contract notice of the type and

quantity of such hazardous substance and notice of the time at

which such storage, release, or disposal took place, to the extent such information is available on the basis of a complete

search of agency files.

(2) FORM OF NOTICE; REGULATIONS.—Notice under this subsection shall be provided in such form and manner as may be

provided in regulations promulgated by the Administrator. As

promptly as practicable after the enactment of this subsection

but not later than 18 months after the date of such enactment,

and after consultation with the Administrator of the General

Services Administration, the Administrator shall promulgate

regulations regarding the notice required to be provided under

this subsection.

(3) CONTENTS OF CERTAIN DEEDS.—

(A) IN GENERAL.—After the last day of the 6-month period beginning on the effective date of regulations under

paragraph (2) of this subsection, in the case of any real

property owned by the United States on which any hazardous substance was stored for one year or more, known

to have been released, or disposed of, each deed entered

into for the transfer of such property by the United States

to any other person or entity shall contain—

(i) to the extent such information is available on

the basis of a complete search of agency files—
929 Sec. 120 SECTION 120 of CERCLA

(I) a notice of the type and quantity of such

hazardous substances,

(II) notice of the time at which such storage,

release, or disposal took place, and

(III) a description of the remedial action

taken, if any;

(ii) a covenant warranting that—

(I) all remedial action necessary to protect

human health and the environment with respect

to any such substance remaining on the property

has been taken before the date of such transfer,

and

(II) any additional remedial action found to be

necessary after the date of such transfer shall be

conducted by the United States; and

(iii) a clause granting the United States access to

the property in any case in which remedial action or

corrective action is found to be necessary after the

date of such transfer.

(B) COVENANT REQUIREMENTS.—For purposes of subparagraphs (A)(ii)(I) and (C)(iii), all remedial action described in such subparagraph has been taken if the construction and installation of an approved remedial design

has been completed, and the remedy has been demonstrated to the Administrator to be operating properly

and successfully. The carrying out of long-term pumping

and treating, or operation and maintenance, after the remedy has been demonstrated to the Administrator to be operating properly and successfully does not preclude the

transfer of the property. The requirements of subparagraph (A)(ii) shall not apply in any case in which the person or entity to whom the real property is transferred is

a potentially responsible party with respect to such property. The requirements of subparagraph (A)(ii) shall not

apply in any case in which the transfer of the property occurs or has occurred by means of a lease, without regard

to whether the lessee has agreed to purchase the property

or whether the duration of the lease is longer than 55

years. In the case of a lease entered into after September

30, 1995, with respect to real property located at an installation approved for closure or realignment under a base

closure law, the agency leasing the property, in consultation with the Administrator, shall determine before leasing

the property that the property is suitable for lease, that

the uses contemplated for the lease are consistent with

protection of human health and the environment, and that

there are adequate assurances that the United States will

take all remedial action referred to in subparagraph (A)(ii)

that has not been taken on the date of the lease.

(C) DEFERRAL.—

(i) IN GENERAL.—The Administrator, with the concurrence of the Governor of the State in which the facility is located (in the case of real property at a Federal facility that is listed on the National Priorities
Sec. 120 SECTION 120 of CERCLA 930

List), or the Governor of the State in which the facility

is located (in the case of real property at a Federal facility not listed on the National Priorities List) may

defer the requirement of subparagraph (A)(ii)(I) with

respect to the property if the Administrator or the

Governor, as the case may be, determines that the

property is suitable for transfer, based on a finding

that—

(I) the property is suitable for transfer for the

use intended by the transferee, and the intended

use is consistent with protection of human health

and the environment;

(II) the deed or other agreement proposed to

govern the transfer between the United States

and the transferee of the property contains the assurances set forth in clause (ii);

(III) the Federal agency requesting deferral

has provided notice, by publication in a newspaper

of general circulation in the vicinity of the property, of the proposed transfer and of the opportunity for the public to submit, within a period of

not less than 30 days after the date of the notice,

written comments on the suitability of the property for transfer; and

(IV) the deferral and the transfer of the property will not substantially delay any necessary response action at the property.

(ii) RESPONSE ACTION ASSURANCES.—With regard

to a release or threatened release of a hazardous substance for which a Federal agency is potentially responsible under this section, the deed or other agreement proposed to govern the transfer shall contain assurances that—

(I) provide for any necessary restrictions on

the use of the property to ensure the protection of

human health and the environment;

(II) provide that there will be restrictions on

use necessary to ensure that required remedial investigations, response action, and oversight activities will not be disrupted;

(III) provide that all necessary response action will be taken and identify the schedules for

investigation and completion of all necessary response action as approved by the appropriate regulatory agency; and

(IV) provide that the Federal agency responsible for the property subject to transfer will submit a budget request to the Director of the Office

of Management and Budget that adequately addresses schedules for investigation and completion

of all necessary response action, subject to congressional authorizations and appropriations.

(iii) WARRANTY.—When all response action necessary to protect human health and the environment
931 Sec. 120 SECTION 120 of CERCLA

with respect to any substance remaining on the property on the date of transfer has been taken, the United

States shall execute and deliver to the transferee an

appropriate document containing a warranty that all

such response action has been taken, and the making

of the warranty shall be considered to satisfy the requirement of subparagraph (A)(ii)(I).

(iv) FEDERAL RESPONSIBILITY.—A deferral under

this subparagraph shall not increase, diminish, or affect in any manner any rights or obligations of a Federal agency (including any rights or obligations under

sections 106, 107, and 120 existing prior to transfer)

with respect to a property transferred under this subparagraph.

(4) IDENTIFICATION OF UNCONTAMINATED PROPERTY.—(A)

In the case of real property to which this paragraph applies (as

set forth in subparagraph (E)), the head of the department,

agency, or instrumentality of the United States with jurisdiction over the property shall identify the real property on which

no hazardous substances and no petroleum products or their

derivatives were known to have been released or disposed of.

Such identification shall be based on an investigation of the

real property to determine or discover the obviousness of the

presence or likely presence of a release or threatened release

of any hazardous substance or any petroleum product or its derivatives, including aviation fuel and motor oil, on the real

property. The identification shall consist, at a minimum, of a

review of each of the following sources of information concerning the current and previous uses of the real property:

(i) A detailed search of Federal Government records

pertaining to the property.

(ii) Recorded chain of title documents regarding the

real property.

(iii) Aerial photographs that may reflect prior uses of

the real property and that are reasonably obtainable

through State or local government agencies.

(iv) A visual inspection of the real property and any

buildings, structures, equipment, pipe, pipeline, or other

improvements on the real property, and a visual inspection

of properties immediately adjacent to the real property.

(v) A physical inspection of property adjacent to the

real property, to the extent permitted by owners or operators of such property.

(vi) Reasonably obtainable Federal, State, and local

government records of each adjacent facility where there

has been a release of any hazardous substance or any petroleum product or its derivatives, including aviation fuel

and motor oil, and which is likely to cause or contribute

to a release or threatened release of any hazardous substance or any petroleum product or its derivatives, including aviation fuel and motor oil, on the real property.

(vii) Interviews with current or former employees involved in operations on the real property.
Sec. 120 SECTION 120 of CERCLA 932

Such identification shall also be based on sampling, if appropriate under the circumstances. The results of the identification shall be provided immediately to the Administrator and

State and local government officials and made available to the

public.

(B) The identification required under subparagraph (A) is

not complete until concurrence in the results of the identification is obtained, in the case of real property that is part of a

facility on the National Priorities List, from the Administrator,

or, in the case of real property that is not part of a facility on

the National Priorities List, from the appropriate State official.

In the case of a concurrence which is required from a State official, the concurrence is deemed to be obtained if, within 90

days after receiving a request for the concurrence, the State official has not acted (by either concurring or declining to concur)

on the request for concurrence.

(C)(i) Except as provided in clauses (ii), (iii), and (iv), the

identification and concurrence required under subparagraphs

(A) and (B), respectively, shall be made at least 6 months before the termination of operations on the real property.

(ii) In the case of real property described in subparagraph

(E)(i)(II) on which operations have been closed or realigned or

scheduled for closure or realignment pursuant to a base closure

law described in subparagraph (E)(ii)(I) or (E)(ii)(II) by the

date of the enactment of the Community Environmental Response Facilitation Act, the identification and concurrence required under subparagraphs (A) and (B), respectively, shall be

made not later than 18 months after such date of enactment.

(iii) In the case of real property described in subparagraph

(E)(i)(II) on which operations are closed or realigned or become

scheduled for closure or realignment pursuant to the base closure law described in subparagraph (E)(ii)(II) after the date of

the enactment of the Community Environmental Response Facilitation Act, the identification and concurrence required

under subparagraphs (A) and (B), respectively, shall be made

not later than 18 months after the date by which a joint resolution disapproving the closure or realignment of the real property under section 2904(b) of such base closure law must be enacted, and such a joint resolution has not been enacted.

(iv) In the case of real property described in subparagraphs (E)(i)(II) on which operations are closed or realigned

pursuant to a base closure law described in subparagraph

(E)(ii)(III) or (E)(ii)(IV), the identification and concurrence required under subparagraphs (A) and (B), respectively, shall be

made not later than 18 months after the date on which the

real property is selected for closure or realignment pursuant to

such a base closure law.

(D) In the case of the sale or other transfer of any parcel

of real property identified under subparagraph (A), the deed

entered into for the sale or transfer of such property by the

United States to any other person or entity shall contain—

(i) a covenant warranting that any response action or

corrective action found to be necessary after the date of
933 Sec. 120 SECTION 120 of CERCLA

such sale or transfer shall be conducted by the United

States; and

(ii) a clause granting the United States access to the

property in any case in which a response action or corrective action is found to be necessary after such date at such

property, or such access is necessary to carry out a response action or corrective action on adjoining property.

(E)(i) This paragraph applies to—

(I) real property owned by the United States and on

which the United States plans to terminate Federal Government operations, other than real property described in

subclause (II); and

(II) real property that is or has been used as a military installation and on which the United States plans to

close or realign military operations pursuant to a base closure law.

(ii) For purposes of this paragraph, the term ‘‘base closure

law’’ includes the following:

(I) Title II of the Defense Authorization Amendments

and Base Closure and Realignment Act (Public Law 100–

526; 10 U.S.C. 2687 note).

(II) The Defense Base Closure and Realignment Act of

1990 (part A of title XXIX of Public Law 101–510; 10

U.S.C. 2687 note).

(III) Section 2687 of title 10, United States Code.

(IV) Any provision of law authorizing the closure or realignment of a military installation enacted on or after the

date of enactment of the Community Environmental Response Facilitation Act.

(F) Nothing in this paragraph shall affect, preclude, or otherwise impair the termination of Federal Government operations on real property owned by the United States.

(5) NOTIFICATION OF STATES REGARDING CERTAIN LEASES.—

In the case of real property owned by the United States, on

which any hazardous substance or any petroleum product or

its derivatives (including aviation fuel and motor oil) was

stored for one year or more, known to have been released, or

disposed of, and on which the United States plans to terminate

Federal Government operations, the head of the department,

agency, or instrumentality of the United States with jurisdiction over the property shall notify the State in which the property is located of any lease entered into by the United States

that will encumber the property beyond the date of termination

of operations on the property. Such notification shall be made

before entering into the lease and shall include the length of

the lease, the name of person to whom the property is leased,

and a description of the uses that will be allowed under the

lease of the property and buildings and other structures on the

property.

(i) OBLIGATIONS UNDER SOLID WASTE DISPOSAL ACT.—Nothing

in this section shall affect or impair the obligation of any department, agency, or instrumentality of the United States to comply

with any requirement of the Solid Waste Disposal Act (including

corrective action requirements).
Sec. 120 SECTION 120 of CERCLA 934

(j) NATIONAL SECURITY.—

(1) SITE SPECIFIC PRESIDENTIAL ORDERS.—The President

may issue such orders regarding response actions at any specified site or facility of the Department of Energy or the Department of Defense as may be necessary to protect the national

security interests of the United States at that site or facility.

Such orders may include, where necessary to protect such interests, an exemption from any requirement contained in this

title or under title III of the Superfund Amendments and Reauthorization Act of 1986 with respect to the site or facility

concerned. The President shall notify the Congress within 30

days of the issuance of an order under this paragraph providing for any such exemption. Such notification shall include

a statement of the reasons for the granting of the exemption.

An exemption under this paragraph shall be for a specified period which may not exceed one year. Additional exemptions

may be granted, each upon the President’s issuance of a new

order under this paragraph for the site or facility concerned.

Each such additional exemption shall be for a specified period

which may not exceed one year. It is the intention of the Congress that whenever an exemption is issued under this paragraph the response action shall proceed as expeditiously as

practicable. The Congress shall be notified periodically of the

progress of any response action with respect to which an exemption has been issued under this paragraph. No exemption

shall be granted under this paragraph due to lack of appropriation unless the President shall have specifically requested such

appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation.

(2) CLASSIFIED INFORMATION.—Notwithstanding any other

provision of law, all requirements of the Atomic Energy Act

and all Executive orders concerning the handling of restricted

data and national security information, including ‘‘need to

know’’ requirements, shall be applicable to any grant of access

to classified information under the provisions of this Act or

under title III of the Superfund Amendments and Reauthorization Act of 1986.
935

4. SECTION 6001 OF THE SOLID WASTE DISPOSAL ACT

APPLICATION OF FEDERAL, STATE, AND LOCAL LAW TO FEDERAL

FACILITIES

SEC. 6001. ø42 U.S.C. 6961¿ (a) IN GENERAL.—Each department, agency, and instrumentality of the executive, legislative, and

judicial branches of the Federal Government (1) having jurisdiction

over any solid waste management facility or disposal site, or (2) engaged in any activity resulting, or which may result, in the disposal

or management of solid waste or hazardous waste shall be subject

to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive

relief and such sanctions as may be imposed by a court to enforce

such relief), respecting control and abatement of solid waste or hazardous waste disposal and management in the same manner, and

to the same extent, as any person is subject to such requirements,

including the payment of reasonable service charges. The Federal,

State, interstate, and local substantive and procedural requirements referred to in this subsection include, but are not limited to,

all administrative orders and all civil and administrative penalties

and fines, regardless of whether such penalties or fines are punitive or coercive in nature or are imposed for isolated, intermittent,

or continuing violations. The United States hereby expressly

waives any immunity otherwise applicable to the United States

with respect to any such substantive or procedural requirement (including, but not limited to, any injunctive relief, administrative

order or civil or administrative penalty or fine referred to in the

preceding sentence, or reasonable service charge). The reasonable

service charges referred to in this subsection include, but are not

limited to, fees or charges assessed in connection with the processing and issuance of permits, renewal of permits, amendments to

permits, review of plans, studies, and other documents, and inspection and monitoring of facilities, as well as any other nondiscriminatory charges that are assessed in connection with a Federal,

State, interstate, or local solid waste or hazardous waste regulatory

program. Neither the United States, nor any agent, employee, or

officer thereof, shall be immune or exempt from any process or

sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief. No agent, employee, or officer

of the United States shall be personally liable for any civil penalty

under any Federal, State, interstate, or local solid or hazardous

waste law with respect to any act or omission within the scope of

the official duties of the agent, employee, or officer. An agent, employee, or officer of the United States shall be subject to any criminal sanction (including, but not limited to, any fine or imprison-
Sec. 6001 SECTION 6001 OF SOLID WASTE DISPOSAL ACT 936

ment) under any Federal or State solid or hazardous waste law,

but no department, agency, or instrumentality of the executive, legislative, or judicial branch of the Federal Government shall be subject to any such sanction. The President may exempt any solid

waste management facility of any department, agency, or instrumentality in the executive branch from compliance with such a requirement if he determines it to be in the paramount interest of

the United States to do so. No such exemption shall be granted due

to lack of appropriation unless the President shall have specifically

requested such appropriation as a part of the budgetary process

and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in

excess of one year, but additional exemptions may be granted for

periods not to exceed one year upon the President’s making a new

determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted

during the preceding calendar year, together with his reason for

granting each such exemption.

(b) ADMINISTRATIVE ENFORCEMENT ACTIONS.—(1) The Administrator may commence an administrative enforcement action against

any department, agency, or instrumentality of the executive, legislative, or judicial branch of the Federal Government pursuant to

the enforcement authorities contained in this Act. The Administrator shall initiate an administrative enforcement action against

such a department, agency, or instrumentality in the same manner

and under the same circumstances as an action would be initiated

against another person. Any voluntary resolution or settlement of

such an action shall be set forth in a consent order.

(2) No administrative order issued to such a department, agency, or instrumentality shall become final until such department,

agency, or instrumentality has had the opportunity to confer with

the Administrator.

(c) LIMITATION ON STATE USE OF FUNDS COLLECTED FROM FEDERAL GOVERNMENT.—Unless a State law in effect on the date of the

enactment of the Federal Facility Compliance Act of 1992 or a

State constitution requires the funds to be used in a different manner, all funds collected by a State from the Federal Government

from penalties and fines imposed for violation of any substantive

or procedural requirement referred to in subsection (a) shall be

used by the State only for projects designed to improve or protect

the environment or to defray the costs of environmental protection

or enforcement.
937

G. SELECTED PERSONNEL MATTERS

[As amended through the end of the first session of the

108th Congress, December 31, 2003]

939

1. PROVISIONS REGARDING POWS AND MIAS

a. Sections 1082 through 1084 of the National Defense

Authorization Act for Fiscal Years 1992 and 1993

(Public Law 102–190; approved Dec. 5, 1991)

SEC. 1082. ø50 U.S.C. 401 note¿ DISCLOSURE OF INFORMATION CONCERNING UNACCOUNTED FOR UNITED STATES PERSONNEL OF THE COLD WAR, THE KOREAN CONFLICT, AND

THE VIETNAM ERA.

(a) PUBLIC AVAILABILITY OF INFORMATION.—(1) Except as provided in subsection (b), the Secretary of Defense shall, with respect

to any information referred to in paragraph (2), place the information in a suitable library-like location within a facility within the

National Capital region for public review and photocopying.

(2) Paragraph (1) applies to any record, live-sighting report, or

other information in the custody of the official custodian referred

to in subsection (d)(3) that may pertain to the location, treatment,

or condition of (A) United States personnel who remain not accounted for as a result of service in the Armed Forces or other Federal Government service during the Korean conflict, the Vietnam

era, or the Cold War, or (B) their remains.

(b) EXCEPTIONS.—(1) The Secretary of Defense may not make

a record or other information available to the public pursuant to

subsection (a) if—

(A) the record or other information is exempt from the disclosure requirements of section 552 of title 5, United States

Code, by reason of subsection (b) of that section; or

(B) the record or other information is in a system of

records exempt from the requirements of subsection (d) of section 552a of such title pursuant to subsection (j) or (k) of that

section.

(2) The Secretary of Defense may not make a record or other

information available to the public pursuant to subsection (a) if the

record or other information specifically mentions a person by name

unless—

(A) in the case of a person who is alive (and not incapacitated) and whose whereabouts are known, that person expressly consents in writing to the disclosure of the record or

other information; or

(B) in the case of a person who is dead or incapacitated or

whose whereabouts are unknown, a family member or family

members of that person determined by the Secretary of Defense to be appropriate for such purpose expressly consent in

writing to the disclosure of the record or other information.

(3)(A) The limitation on disclosure in paragraph (2) does not

apply in the case of a person who is dead or incapacitated or whose
Sec. 1082 POWS AND MIAS 940

whereabouts are unknown if the family member or members of

that person determined pursuant to subparagraph (B) of that paragraph cannot be located by the Secretary of Defense—

(i) in the case of a person missing from the Vietnam

era, after a reasonable effort; and

(ii) in the case of a person missing from the Korean

Conflict or Cold War, after a period of 90 days from the

date on which any record or other information referred to

in paragraph (2) is received by the Department of Defense

for disclosure review from the Archivist of the United

States, the Library of Congress, or the Joint United

States-Russian Commission on POW/MIAs.

(B) Paragraph (2) does not apply to the access of an adult

member of the family of a person to any record or information to

the extent that the record or other information relates to that person.

(C) The authority of a person to consent to disclosure of a

record or other information for the purposes of paragraph (2) may

be delegated to another person or an organization only by means

of an express legal power of attorney granted by the person authorized by that paragraph to consent to the disclosure.

(c) DEADLINES.—(1) In the case of records or other information

originated by the Department of Defense, the official custodian

shall make such records and other information available to the

public pursuant to this section not later than January 2, 1996.

Such records or other information shall be made available as soon

as a review carried out for the purposes of subsection (b) is completed.

(2) Whenever, a department or agency of the Federal Government receives any record or other information referred to in subsection (a) that is required by this section to be made available to

the public, the head of that department or agency shall ensure that

such record or other information is provided to the Secretary of Defense, and the Secretary shall make such record or other information available in accordance with subsection (a) as soon as possible

and, in any event, not later than one year after the date on which

the record or information is received by the department or agency

of the Federal Government.

(3) If the Secretary of Defense determines that the disclosure

of any record or other information referred to in subsection (a) by

the date required by paragraph (1) or (2) may compromise the safety of any United States personnel referred to in subsection (a)(2)

who remain not accounted for but who may still be alive in captivity, then the Secretary may withhold that record or other information from the disclosure otherwise required by this section.

Whenever the Secretary makes a determination under the preceding sentence, the Secretary shall immediately notify the President and the Congress of that determination.

(d) DEFINITIONS.—For purposes of this section:

(1) The terms ‘‘Korean conflict’’ and ‘‘Vietnam era’’ have

the meanings given those terms in section 101 of title 38,

United States Code.

(2) The term ‘‘Cold War’’ means the period from the end

of World War II to the beginning of the Korean conflict and the
941 Sec. 1031 POWS AND MIAS

period from the end of the Korean conflict to the beginning of

the Vietnam era.

(3) The term ‘‘official custodian’’ means—

(A) in the case of records, reports, and information relating to the Korean conflict or the Cold War, the Archivist

of the United States; and

(B) in the case of records, reports, and information relating to the Vietnam era, the Secretary of Defense.

SEC. 1083. ø10 U.S.C. 113 note¿ FAMILY SUPPORT CENTER FOR FAMILIES OF PRISONERS OF WAR AND PERSONS MISSING IN

ACTION.

(a) REQUEST FOR ESTABLISHMENT.—The President is authorized

and requested to establish in the Department of Defense a family

support center to provide information and assistance to members

of the families of persons who at any time while members of the

Armed Forces were classified as prisoners of war or missing in action in Southeast Asia and who have not been accounted for. Such

a support center should be located in a facility in the National Capital region.

(b) DUTIES.—The center should be organized and provided with

such personnel as necessary to permit the center to assist family

members referred to in subsection (a) in contacting the departments and agencies of the Federal Government having jurisdiction

over matters relating to such persons.

SEC. 1084. DISPLAY OF POW/MIA FLAG.

[Repealed by section 1082(j) of the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105–85; 111 Stat. 1918).

Provisions relating to the display of the POW/MIA flag can now be

found in section 902 of title 36, United States Code.]

b. Section 1031 of the National Defense Authorization Act

for Fiscal Year 1995

(Public Law 103–337; approved Oct. 5, 1994)

SEC. 1031. ø10 U.S.C. 113 note¿ ASSISTANCE TO FAMILY MEMBERS OF

KOREAN CONFLICT AND COLD WAR POW/MIAS WHO REMAIN UNACCOUNTED FOR.

(a) SINGLE POINT OF CONTACT.—The Secretary of Defense shall

designate an official of the Department of Defense to serve as a single point of contact within the department—

(1) for the immediate family members (or their designees)

of any unaccounted-for Korean conflict POW/MIA; and

(2) for the immediate family members (or their designees)

of any unaccounted-for Cold War POW/MIA.

(b) FUNCTIONS.—The official designated under subsection (a)

shall serve as a liaison between the family members of unaccounted-for Korean conflict POW/MIAs and unaccounted-for Cold

War POW/MIAs and the Department of Defense and other Federal

departments and agencies that may hold information that may relate to such POW/MIAs. The functions of that official shall include

assisting family members—

(1) with the procedures the family members may follow in

their search for information about the unaccounted-for Korean
Sec. 521 POWS AND MIAS 942

conflict POW/MIA or unaccounted-for Cold War POW/MIA, as

the case may be;

(2) in learning where they may locate information about

the unaccounted-for POW/MIA; and

(3) in learning how and where to identify classified records

that contain pertinent information and that will be declassified.

(c) ASSISTANCE IN OBTAINING DECLASSIFICATION.—The official

designated under subsection (a) shall seek to obtain the rapid declassification of any relevant classified records that are identified.

(d) REPOSITORY.—The official designated under subsection (a)

shall provide all documents relating to unaccounted-for Korean conflict POW/MIAs and unaccounted-for Cold War POW/MIAs that are

located as a result of the official’s efforts to the National Archives

and Records Administration, which shall locate them in a centralized repository.

(e) DEFINITIONS.—For purposes of this section:

(1) The term ‘‘unaccounted-for Korean conflict POW/MIA’’

means a member of the Armed Forces or civilian employee of

the United States who, as a result of service during the Korean

conflict, was at any time classified as a prisoner of war or

missing-in-action and whose person or remains have not been

returned to United States control and who remains unaccounted for.

(2) The term ‘‘unaccounted-for Cold War POW/MIA’’ means

a member of the Armed Forces or civilian employee of the

United States who, as a result of service during the period

from September 2, 1945, to August 21, 1991, was at any time

classified as a prisoner of war or missing-in-action and whose

person or remains have not been returned to United States

control and who remains unaccounted for.

(3) The term ‘‘Korean conflict’’ has the meaning given such

term in section 101(9) of title 38, United States Code.

* * * * * * *

c. Section 521 of the National Defense Authorization Act for

Fiscal Year 1996

(Public Law 104–106; approved Feb. 10, 1996)

SEC. 521. ø10 U.S.C. 1129¿ AWARD OF PURPLE HEART TO PERSONS

WOUNDED WHILE HELD AS PRISONERS OF WAR BEFORE

APRIL 25, 1962.

(a) AWARD OF PURPLE HEART.—For purposes of the award of

the Purple Heart, the Secretary concerned (as defined in section

101 of title 10, United States Code) shall treat a former prisoner

of war who was wounded before April 25, 1962, while held as a

prisoner of war (or while being taken captive) in the same manner

as a former prisoner of war who is wounded on or after that date

while held as a prisoner of war (or while being taken captive).

(b) STANDARDS FOR AWARD.—An award of the Purple Heart

under subsection (a) shall be made in accordance with the standards in effect on the date of the enactment of this Act for the award

of the Purple Heart to persons wounded on or after April 25, 1962.
943 Sec. 934 POWS AND MIAS

(c) ELIGIBLE FORMER PRISONERS OF WAR.—A person shall be

considered to be a former prisoner of war for purposes of this section if the person is eligible for the prisoner-of-war medal under

section 1128 of title 10, United States Code.

(d) PROCEDURES FOR AWARD.—In determining whether a

former prisoner of war who submits an application for the award

of the Purple Heart under subsection (a) is eligible for that award,

the Secretary concerned shall apply the following procedures:

(1) Failure of the applicant to provide any documentation

as required by the Secretary shall not in itself disqualify the

application from being considered.

(2) In evaluating the application, the Secretary shall consider (A) historical information as to the prison camp or other

circumstances in which the applicant was held captive, and (B)

the length of time that the applicant was held captive.

(3) To the extent that information is readily available, the

Secretary shall assist the applicant in obtaining information or

identifying the sources of information referred to in paragraph

(2).

(4) The Secretary shall review a completed application

under this section based upon the totality of the information

presented, taking into account the length of time between the

period during which the applicant was held as a prisoner of

war and the date of the application.

d. Section 934 of the National Defense Authorization Act for

Fiscal Year 1998

(Public Law 105–85; approved Nov. 18, 1997)

SEC. 934. ø10 U.S.C. 1501 note¿ POW/MIA INTELLIGENCE ANALYSIS.

(a) INTELLIGENCE ANALYSIS.—The Director of Central Intelligence, in consultation with the Secretary of Defense, shall provide

intelligence analysis on matters concerning prisoners of war and

missing persons (as defined in chapter 76 of title 10, United States

Code) to all departments and agencies of the Federal Government

involved in such matters.

(b) USE OF INTELLIGENCE IN ANALYSIS OF POW/MIA CASES IN

DEPARTMENT OF DEFENSE.—The Secretary of Defense shall ensure

that the Defense Prisoner of War/Missing Personnel Office of the

Department of Defense takes into full account all intelligence regarding matters concerning prisoners of war and missing persons

(as defined in chapter 76 of title 10, United States Code) in analyzing cases involving such persons.
944

1The table of contents has been added for the convenience of the reader.

2. MATTERS RELATING TO VOTING BY MEMBERS OF

THE UNIFORMED SERVICES

a. Uniformed and Overseas Citizens Absentee Voting Act

(Public Law 99–410, approved August 28, 1986)

SECTION 1. ø42 U.S.C. 1973ff note¿ SHORT TITLE. 1

This Act may be cited as the ‘‘Uniformed and Overseas Citizens Absentee Voting Act’’.

* * * * * * *

TITLE I—REGISTRATION AND VOTING BY ABSENT UNIFORMED SERVICES

VOTERS AND OVERSEAS VOTERS IN ELECTIONS FOR FEDERAL OFFICE

Sec. 101. Federal responsibilities.

Sec. 102. State responsibilities.

Sec. 103. Federal write-in absentee ballot for overseas voters in general elections

for Federal office.

Sec. 104. Use of single application for all subsequent elections.

Sec. 105. Enforcement.

Sec. 106. Effect on certain other laws.

Sec. 107. Definitions.

TITLE II—POSTAL, CRIMINAL, AND GENERAL PROVISIONS

* * * * * * *

TITLE I—REGISTRATION AND VOTING BY ABSENT UNIFORMED SERVICES VOTERS AND

OVERSEAS VOTERS IN ELECTIONS FOR FEDERAL OFFICE

SEC. 101. [42 U.S.C. 1973ff] FEDERAL RESPONSIBILITIES.

(a) PRESIDENTIAL DESIGNEE.—The President shall designate

the head of an executive department to have primary responsibility

for Federal functions under this title.

(b) DUTIES OF PRESIDENTIAL DESIGNEE.—The Presidential designee shall—

(1) consult State and local election officials in carrying out

this title, and ensure that such officials are aware of the requirements of this Act;

(2) prescibe an official post card form, containing both an

absentee voter registration application and an absentee ballot

application, for use by the States as required under section

102(4);

(3) carry out section 103 with respect to the Federal write-
945 Sec. 102 VOTING AND ELECTION LAWS

(3) carry out section 103 with respect to the Federal writein absentee ballot for overseas voters in general elections for

Federal office;

(4) prescribe a suggested design for absentee ballot mailing

envelopes for use by the States as recommended in section 104;

(5) compile and distribute (A) descriptive material on State

absentee registration and voting procedures, and (B) to the extent practicable, facts relating to specific elections, including

dates, offices involved, and the text of ballot questions;

(6) not later than the end of each year after a Presidential

election year, transmit to the President and the Congress a report on the effectiveness of assistance under this title, including a statistical analysis of uniformed services voter participation, a separate statistical analysis of overseas nonmilitary

participation, and a description of State-Federal cooperation;

and

(7) prescribe a standard oath for use with any document

under this title affirming that a material misstatement of fact

in the completion of such a document may constitute grounds

for a conviction for perjury.

(c) DUTIES OF OTHER FEDERAL OFFICIALS.—

(1) IN GENERAL.—The head of each Government department, agency, or other entity shall, upon request of the Presidential designee, distribute balloting materials and otherwise

cooperate in carrying out this title.

(2) ADMINISTRATOR OF GENERAL SERVICES.—As directed by

the Presidential designee, the Administrator of General Services shall furnish official post card forms (prescribed under

subsection (b)) and Federal write-in absentee ballots (prescribed under section 103).

SEC. 102. [42 U.S.C. 1973ff–1] STATE RESPONSIBILITIES.

(a) IN GENERAL.—Each State shall—

(1) permit absent uniformed services voters and overseas

voters to use absentee registration procedures and to vote by

absentee ballot in general, special, primary, and runoff elections for Federal office;

(2) accept and process, with respect to any election for Federal office, any otherwise valid voter registration application

and absentee ballot application from an absent uniformed services voter or overseas voter, if the application is received by the

appropriate State election official not less than 30 days before

the election;

(3) permit overseas voters to use Federal write-in absentee

ballots (in accordance with section 103) in general elections for

Federal office;

(4) use the official post card form (prescribed under section

101) for simultaneous voter registration application and absentee ballot application; and

(5) if the State requires an oath or affirmation to accompany any document under this title, use the standard oath prescribed by the Presidential designee under section 101(b)(7).
Sec. 103 VOTING AND ELECTION LAWS 946

1 In subsection (a), a comma appears between ‘‘States’’ and ‘‘absentee ballots’’.

(b) DESIGNATION OF SINGLE STATE OFFICE TO PROVIDE INFORMATION ON REGISTRATION AND ABSENTEE BALLOT PROCEDURES FOR

ALL VOTERS IN STATE.—

(1) IN GENERAL.—Each State shall designate a single office

which shall be responsible for providing information regarding

voter registration procedures and absentee ballot procedures to

be used by absent uniformed services voters and overseas voters with respect to elections for Federal office (including procedures relating to the use of the Federal write-in absentee ballot) to all absent uniformed services voters and overseas voters

who wish to register to vote or vote in any jurisdiction in the

State.

(2) RECOMMENDATION REGARDING USE OF OFFICE TO ACCEPT AND PROCESS MATERIALS.—Congress recommends that the

State office designated under paragraph (1) be responsible for

carrying out the State’s duties under this Act, including accepting valid voter registration applications, absentee ballot applications, and absentee ballots (including Federal write-in absentee ballots) from all absent uniformed services voters and overseas voters who wish to register to vote or vote in any jurisdiction in the State.

(c) REPORT ON NUMBER OF ABSENTEE BALLOTS TRANSMITTED

AND RECEIVED.—Not later than 90 days after the date of each regularly scheduled general election for Federal office, each State and

unit of local government which administered the election shall

(through the State, in the case of a unit of local government) submit a report to the Election Assistance Commission (established

under the Help America Vote Act of 2002) on the combined number

of absentee ballots transmitted to absent uniformed services voters

and overseas voters for the election and the combined number of

such ballots which were returned by such voters and cast in the

election, and shall make such report available to the general public.

(d) REGISTRATION NOTIFICATION.—With respect to each absent

uniformed services voter and each overseas voter who submits a

voter registration application or an absentee ballot request, if the

State rejects the application or request, the State shall provide the

voter with the reasons for the rejection.

SEC. 103. [42 U.S.C. 1973ff–2] FEDERAL WRITE-IN ABSENTEE BALLOT

FOR OVERSEAS VOTERS IN GENERAL ELECTIONS FOR

FEDERAL OFFICE.

(a) IN GENERAL.—The Presidential designee shall prescribe a

Federal write-in absentee ballot (including a secrecy envelope and

mailing envelope for such ballot) for use in general elections for

Federal office by overseas voters who make timely applications for,

and do not receive, States, absentee ballots. 1

(b) SUBMISSION AND PROCESSING.—Except as otherwise provided in this title, a Federal write-in absentee ballot shall be submitted and processed in the manner provided by law for absentee

ballots in the State involved. A Federal write-in absentee ballot of

an overseas voter shall not be counted—
947 Sec. 103 VOTING AND ELECTION LAWS

(1) if the ballot is submitted from any location in the

United States;

(2) if the application of the overseas voter for a State absentee ballot is received by the appropriate State election official less than 30 days before the general election; or

(3) if a State absentee ballot of the overseas voter is received by the appropriate State election official not later than

the deadline for receipt of the State absentee ballot under

State law.

(c) SPECIAL RULES.—The following rules shall apply with respect to Federal write-in absentee ballots:

(1) In completing the ballot, the overseas voter may designate a candidate by writing in the name of the candidate or

by writing in the name of a political party (in which case the

ballot shall be counted for the candidate of that political party).

(2) In the case of the offices of President and Vice President, a vote for a named candidate or a vote by writing in the

name of a political party shall be counted as a vote for the electors supporting the candidate involved.

(3) Any abbreviation, misspelling, or other minor variation

in the form of the name of a candidate or a political party shall

be disregarded in determining the validity of the ballot, if the

intention of the voter can be ascertained.

(d) SECOND BALLOT SUBMISSION; INSTRUCTION TO OVERSEAS

VOTER.—An overseas voter who submits a Federal write-in absentee ballot and later receives a State absentee ballot, may submit

the state absentee ballot. The Presidential designee shall assure

that the instructions for each Federal write-in absentee ballot

clearly state that an overseas voter who submits a Federal writein absentee ballot and later receives and submits a State absentee

ballot should make every reasonable effort to inform the appropriate State election official that the voter has submitted more

than one ballot.

(e) USE OF APPROVED STATE ABSENTEE BALLOT IN PLACE OF

FEDERAL WRITE-IN ABSENTEE BALLOT.—The Federal write-in absentee ballot shall not be valid for use in a general election if the

State involved provides a State absentee ballot that—

(1) at the request of the State, is approved by the Presidential designee for use in place of the Federal write-in absentee ballot; and

(2) is made available to overseas voters at least 60 days

before the deadline for receipt of the State ballot under State

law.

(f) CERTAIN STATES EXEMPTED.—A State is not required to permit use of the Federal write-in absentee ballot, if, on and after the

date of the enactment of this title, the State has in effect a law providing that—

(1) a State absentee ballot is required to be available to

any voter described in section 107(5)(A) at least 90 days before

the general election involved; and

(2) a State absentee ballot is required to be available to

any voter described in section 107(5) (B) or (C), as soon as the

official list of candidates in the general election is complete.
Sec. 104 VOTING AND ELECTION LAWS 948

SEC. 104. [42 U.S.C. 1973ff–3] USE OF SINGLE APPLICATION FOR ALL

SUBSEQUENT ELECTIONS.

(a) IN GENERAL.—If a State accepts and processes an official

post card form (prescribed under section 101) submitted by an absent uniformed services voter or overseas voter for simultaneous

voter registration and absentee ballot application (in accordance

with section 102(a)(4)) and the voter requests that the application

be considered an application for an absentee ballot for each subsequent election for Federal office held in the State through the next

2 regularly scheduled general elections for Federal office (including

any runoff elections which may occur as a result of the outcome of

such general elections), the State shall provide an absentee ballot

to the voter for each such subsequent election.

(b) EXCEPTION FOR VOTERS CHANGING REGISTRATION.—Subsection (a) shall not apply with respect to a voter registered to vote

in a State for any election held after the voter notifies the State

that the voter no longer wishes to be registered to vote in the State

or after the State determines that the voter has registered to vote

in another State.

(c) REVISION OF OFFICIAL POST CARD FORM.—The Presidential

designee shall revise the official post card form (prescribed under

section 101) to enable a voter using the form to—

(1) request an absentee ballot for each election for Federal

office held in a State during a year; or

(2) request an absentee ballot for only the next scheduled

election for Federal office held in a State.

(d) NO EFFECT ON VOTER REMOVAL PROGRAMS.—Nothing in

this section may be construed to prevent a State from removing

any voter from the rolls of registered voters in the State under any

program or method permitted under section 8 of the National Voter

Registration Act of 1993.

(e) PROHIBITION OF REFUSAL OF APPLICATIONS ON GROUNDS OF

EARLY SUBMISSION.—A State may not refuse to accept or process,

with respect to any election for Federal office, any otherwise valid

voter registration application or absentee ballot application (including the postcard form prescribed under section 101) submitted by

an absent uniformed services voter during a year on the grounds

that the voter submitted the application before the first date on

which the State otherwise accepts or processes such applications

for that year submitted by absentee voters who are not members

of the uniformed services.

SEC. 105. [42 U.S.C. 1973ff–4] ENFORCEMENT.

The Attorney General may bring civil action in an appropriate

district court for such declaratory or injunctive relief as may be

necessary to carry out this title.

SEC. 106. [42 U.S.C. 1973ff–5] EFFECT ON CERTAIN OTHER LAWS.

The exercise of any right under this title shall not affect, for

purposes of any Federal, State, or local tax, the residence or domicile of a person exercising such right.

SEC. 107. [42 U.S.C. 1973ff–6] DEFINITIONS.

As used in this title, the term—

(1) ‘‘absent uniformed services voter’’ means—
949 Sec. 107 VOTING AND ELECTION LAWS

1The period at the end of paragraph (5) should be a semicolon.

(A) a member of a uniformed service on active duty

who, by reason of such active duty, is absent from the

place of residence where the member is otherwise qualified

to vote;

(B) a member of the merchant marine who, by reason

of service in the merchant marine, is absent from the place

of residence where the member is otherwise qualified to

vote; and

(C) a spouse or dependent of a member referred to in

subparagraph (A) or (B) who, by reason of the active duty

or service of the member, is absent from the place of residence where the spouse or dependent is otherwise qualified to vote;

(2) ‘‘balloting materials’’ means offical post card forms (prescribed under section 101), Federal write-in absentee ballots

(prescribed under section 103), and any State balloting materials that, as determined by the Presidential designee, are essential to the carrying out of this title;

(3) ‘‘Federal office’’ means the office of President or Vice

President, or of Senator or Representative in, or Delegate or

Resident Commissioner to, the Congress;

(4) ‘‘member of the merchant marine’’ means an individual

(other than a member of a uniformed service or an individual

employed, enrolled, or maintained on the Great Lakes or the

inland waterways)—

(A) employed as an officer or crew member of a vessel

documented under the laws of the United States, or a vessel owned by the United States, or a vessel of foreign-flag

registry under charter to or control of the United States;

or

(B) enrolled with the United States for employment or

training for employment, or maintained by the United

States for emergency relief service, as an officer or crew

member of any such vessel;

(5) ‘‘overseas voter’’ means—

(A) an absent uniformed services voter who, by reason

of active duty or service is absent from the United States

on the date of the election involved;

(B) a person who resides outside the United States

and is qualified to vote in the last place in which the person was domiciled before leaving the United States; or

(C) a person who resides outside the United States

and (but for such residence) would be qualified to vote in

the last place in which the person was domiciled before

leaving the United States. 1

(6) ‘‘State’’ means a State of the United States, the District

of Columbia, the Commonwealth of Puerto Rico, Guam, the

Virgin Islands, and American Samoa;

(7) ‘‘uniformed services’’ means the Army, Navy, Air Force,

Marine Corps, and Coast Guard, the commissioned corps of the

Public Health Service, and the commissioned corps of the National Oceanic and Atmospheric Administration; and
Sec. 1604 VOTING AND ELECTION LAWS 950

(8) ‘‘United States’’, where used in the territorial sense,

means the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and

American Samoa.

TITLE II—POSTAL, CRIMINAL, AND GENERAL

PROVISIONS

[Omitted-Amendments]

b. Section 1604 of the National Defense Authorization Act

for Fiscal Year 2002

(Public Law 107–107, approved Dec. 28, 2001)

SEC. 1604. ø42 U.S.C. 1973ff note¿ ELECTRONIC VOTING DEMONSTRATION PROJECT.

(a) ESTABLISHMENT OF DEMONSTRATION PROJECT.—

(1) IN GENERAL.—Subject to paragraph (2), the Secretary of

Defense shall carry out a demonstration project under which

absent uniformed services voters are permitted to cast ballots

in the regularly scheduled general election for Federal office

for November 2002 through an electronic voting system. The

project shall be carried out with participation of sufficient

numbers of absent uniformed services voters so that the results are statistically relevant.

(2) AUTHORITY TO DELAY IMPLEMENTATION.—If the Secretary of Defense determines that the implementation of the

demonstration project under paragraph (1) with respect to the

regularly scheduled general election for Federal office for November 2002 may adversely affect the national security of the

United States, the Secretary may delay the implementation of

such demonstration project until the regularly scheduled general election for Federal office for November 2004. The Secretary shall notify the Committee on Armed Services and the

Committee on Rules and Administration of the Senate and the

Committee on Armed Services and the Committee on House

Administration of the House of Representatives of any decision

to delay implementation of the demonstration project.

(b) COORDINATION WITH STATE ELECTION OFFICIALS.—The Secretary shall carry out the demonstration project under this section

through cooperative agreements with State election officials of

States that agree to participate in the project.

(c) REPORT TO CONGRESS.—Not later than June 1 of the year

following the year in which the demonstration project is conducted

under this section, the Secretary of Defense shall submit to Congress a report analyzing the demonstration project. The Secretary

shall include in the report any recommendations the Secretary considers appropriate for continuing the project on an expanded basis

for absent uniformed services voters during the next regularly

scheduled general election for Federal office.

(d) DEFINITIONS.—In this section:

(1) ABSENT UNIFORMED SERVICES VOTER.—The term ‘‘absent uniformed services voter’’ has the meaning given that
951 Sec. 1604 VOTING AND ELECTION LAWS

term in section 107(1) of the Uniformed and Overseas Citizens

Absentee Voting Act (42 U.S.C. 1973ff–6(1)).

(2) STATE.—The term ‘‘State’’ includes the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin

Islands, and American Samoa.
952

3. NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION COMMISSIONED OFFICER CORPS ACT OF

2002

(Title II of Public Law 107–372, approved Dec. 19, 2002)

* * * * * * *

TITLE II—NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

COMMISSIONED OFFICER CORPS

Sec. 201. Short title.

SUBTITLE A—GENERAL PROVISIONS

Sec. 211. Commissioned officer corps.

Sec. 212. Definitions.

Sec. 213. Authorized number on the active list.

Sec. 214. Strength and distribution in grade.

Sec. 215. Authorized number for fiscal years 2003 through 2005.

SUBTITLE B—APPOINTMENT AND PROMOTION OF OFFICERS

Sec. 221. Original appointments.

Sec. 222. Personnel boards.

Sec. 223. Promotion of ensigns to grade of lieutenant (junior grade).

Sec. 224. Promotion by selection to permanent grades above lieutenant (junior

grade).

Sec. 225. Length of service for promotion purposes.

Sec. 226. Appointments and promotions to permanent grades.

Sec. 227. General qualification of officers for promotion to higher permanent grade.

Sec. 228. Positions of importance and responsibility.

Sec. 229. Temporary appointments and promotions generally.

Sec. 230. Temporary appointment or advancement of commissioned officers in time

of war or national emergency.

Sec. 231. Pay and allowances; date of acceptance of promotion.

Sec. 232. Service credit as deck officer or junior engineer for promotion purposes.

Sec. 233. Suspension during war or emergency.

SUBTITLE C—SEPARATION AND RETIREMENT OF OFFICERS

Sec. 241. Involuntary retirement or separation.

Sec. 242. Separation pay.

Sec. 243. Mandatory retirement for age.

Sec. 244. Retirement for length of service.

Sec. 245. Computation of retired pay.

Sec. 246. Retired grade and retired pay.

Sec. 247. Retired rank and pay held pursuant to other laws unaffected.

Sec. 248. Continuation on active duty; deferral of retirement.

Sec. 249. Recall to active duty.

SUBTITLE D—SERVICE OF OFFICERS WITH THE MILITARY DEPARTMENTS

Sec. 251. Cooperation with and transfer to military departments.

Sec. 252. Relative rank of officers when serving with Army, Navy, or Air Force.

Sec. 253. Rules and regulations when cooperating with military departments.

SUBTITLE E—RIGHTS AND BENEFITS

Sec. 261. Applicability of certain provisions of title 10, United States Code.

Sec. 262. Eligibility for veterans benefits and other rights, privileges, immunities,

and benefits under certain provisions of law.
953 Sec. 213 NOAA COMMISSIONED OFFICER CORPS ACT OF 2002

1The National Oceanic and Atmospheric Administration Commissioned Officer Corps Act of

2002 replaced and repealed the Coast and Geodetic Survey Commissioned Officers’ Act of 1948

(Act of June 3, 1948; 33 U.S.C. 853a et seq.).

Sec. 263. Medical and dental care.

Sec. 264. Commissary privileges.

Sec. 265. Authority to use appropriated funds for transportation and reimbursement of certain items.

Sec. 266. Presentation of United States flag upon retirement.

SUBTITLE F—REPEALS AND CONFORMING AMENDMENTS

Sec. 271. Repeals.

Sec. 272. Conforming amendments.

* * * * * * *

TITLE II—NATIONAL OCEANIC AND ATMOSPHERIC

ADMINISTRATION COMMISSIONED OFFICER CORPS

SEC. 201. ø33 U.S.C. 3001 note¿ SHORT TITLE. 1

This title may be cited as the ‘‘National Oceanic and Atmospheric Administration Commissioned Officer Corps Act of 2002’’.

Subtitle A—General Provisions

SEC. 211. ø33 U.S.C. 3001¿ COMMISSIONED OFFICER CORPS.

There shall be in the National Oceanic and Atmospheric Administration a commissioned officer corps.

SEC. 212. ø33 U.S.C. 3002¿ DEFINITIONS.

(a) APPLICABILITY OF DEFINITIONS IN TITLE 10, UNITED STATES

CODE.—Except as provided in subsection (b), the definitions provided in section 101 of title 10, United States Code, apply to the

provisions of this title.

(b) ADDITIONAL DEFINITIONS.—In this title:

(1) ACTIVE DUTY.—The term ‘‘active duty’’ means full-time

duty in the active service of a uniformed service.

(2) GRADE.—The term ‘‘grade’’ means a step or degree, in

a graduated scale of office or rank, that is established and designated as a grade by law or regulation.

(3) OFFICER.—The term ‘‘officer’’ means an officer of the

commissioned corps.

(4) FLAG OFFICER.—The term ‘‘flag officer’’ means an officer

serving in, or having the grade of, vice admiral, rear admiral,

or rear admiral (lower half).

(5) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of Commerce.

(6) ADMINISTRATION.—The term ‘‘Administration’’ means

the National Oceanic and Atmospheric Administration.

SEC. 213. ø33 U.S.C. 3003¿ AUTHORIZED NUMBER ON THE ACTIVE LIST.

(a) ANNUAL STRENGTH ON ACTIVE LIST.—The annual strength

of the commissioned corps in officers on the lineal list of active

duty officers of the corps shall be prescribed by law.

(b) LINEAL LIST.—The Secretary shall maintain a list, known

as the ‘‘lineal list’’, of officers on active duty. Officers shall be carried on the lineal list by grade and, within grade, by seniority in

grade.
Sec. 214 NOAA COMMISSIONED OFFICER CORPS ACT OF 2002 954

SEC. 214. ø33 U.S.C. 3004¿ STRENGTH AND DISTRIBUTION IN GRADE.

(a) RELATIVE RANK; PROPORTION.—Of the total authorized

number of officers on the lineal list of the commissioned corps,

there are authorized numbers in permanent grade, in relative rank

with officers of the Navy, in proportions as follows:

(1) 8 in the grade of captain.

(2) 14 in the grade of commander.

(3) 19 in the grade of lieutenant commander.

(4) 23 in the grade of lieutenant.

(5) 18 in the grade of lieutenant (junior grade).

(6) 18 in the grade of ensign.

(b) COMPUTATION OF NUMBER IN GRADE.—

(1) IN GENERAL.—Subject to paragraph (2), whenever a

final fraction occurs in computing the authorized number of officers in a grade, the nearest whole number shall be taken, and

if the fraction is one-half the next higher whole number shall

be taken.

(2) LIMITATION ON INCREASE IN TOTAL NUMBER.—The total

number of officers on the lineal list authorized by law may not

be increased as the result of the computations prescribed in

this section, and if necessary the number of officers in the lowest grade shall be reduced accordingly.

(c) PRESERVATION OF GRADE AND PAY, ETC.—No officer may be

reduced in grade or pay or separated from the commissioned corps

as the result of a computation made to determine the authorized

number of officers in the various grades.

(d) FILLING OF VACANCIES; ADDITIONAL NUMBERS.—Nothing in

this section may be construed as requiring the filling of any vacancy or as prohibiting additional numbers in any grade to compensate for vacancies existing in higher grades.

(e) TEMPORARY INCREASE IN NUMBERS.—The total number of

officers authorized by law to be on the lineal list during a fiscal

year may be temporarily exceeded so long as the average number

on that list during that fiscal year does not exceed the authorized

number.

SEC. 215. ø33 U.S.C. 3005¿ AUTHORIZED NUMBER FOR FISCAL YEARS

2003 THROUGH 2005.

There are authorized to be on the lineal list of the commissioned corps of the National Oceanic and Atmospheric

Administration—

(1) 270 officers for fiscal year 2003;

(2) 285 officers for fiscal year 2004; and

(3) 299 officers for fiscal year 2005.

Subtitle B—Appointment and Promotion of Officers

SEC. 221. ø33 U.S.C. 3021¿ ORIGINAL APPOINTMENTS.

(a) IN GENERAL.—

(1) GRADES.—Original appointments may be made in the

grades of ensign, lieutenant (junior grade), and lieutenant.

(2) QUALIFICATIONS.—Under regulations prescribed by the

Secretary, such an appointment may be given only to a person

who—
955 Sec. 222 NOAA COMMISSIONED OFFICER CORPS ACT OF 2002

(A) meets the qualification requirements specified in

paragraphs (1) through (4) of section 532(a) of title 10,

United States Code; and

(B) has such other special qualifications as the Secretary may prescribe by regulation.

(3) EXAMINATION.—A person may be given such an appointment only after passage of a mental and physical examination given in accordance with regulations prescribed by the

Secretary.

(4) REVOCATION OF COMMISSION OF OFFICERS FOUND NOT

QUALIFIED.—The President may revoke the commission of any

officer appointed under this section during the officer’s first

three years of service if the officer is found not qualified for the

service. Any such revocation shall be made under regulations

prescribed by the President.

(b) LINEAL LIST.—Each person appointed under this section

shall be placed on the lineal list in a position commensurate with

that person’s age, education, and experience, in accordance with

regulations prescribed by the Secretary.

(c) SERVICE CREDIT UPON ORIGINAL APPOINTMENT IN GRADE

ABOVE ENSIGN.—

(1) IN GENERAL.—For the purposes of basic pay, a person

appointed under this section in the grade of lieutenant shall be

credited as having, on the date of that appointment, three

years of service, and a person appointed under this section in

the grade of lieutenant (junior grade) shall be credited as having, as of the date of that appointment, 11⁄2 years of service.

(2) HIGHER CREDIT UNDER OTHER LAW.—If a person appointed under this section is entitled to credit for the purpose

of basic pay under any other provision of law that would exceed the amount of credit authorized by paragraph (1), that

person shall be credited with that amount of service in lieu of

the credit authorized by paragraph (1).

SEC. 222. ø33 U.S.C. 3022¿ PERSONNEL BOARDS.

(a) CONVENING.—At least once a year and at such other times

as the Secretary determines necessary, the Secretary shall convene

a personnel board. A personnel board shall consist of not less than

five officers on the lineal list in the permanent grade of commander

or above.

(b) DUTIES.—Each personnel board shall—

(1) recommend to the Secretary such changes in the lineal

list as the board may determine; and

(2) make selections and recommendations to the Secretary

and President for the appointment, promotion, separation, continuation, and retirement of officers as prescribed in this subtitle and subtitle C.

(c) ACTION ON RECOMMENDATIONS NOT ACCEPTABLE.—In a case

in which any recommendation by a board convened under subsection (a) is not accepted by the Secretary or the President, the

board shall make such further recommendations as are acceptable.
Sec. 223 NOAA COMMISSIONED OFFICER CORPS ACT OF 2002 956

SEC. 223. ø33 U.S.C. 3023¿ PROMOTION OF ENSIGNS TO GRADE OF LIEUTENANT (JUNIOR GRADE).

(a) IN GENERAL.—An officer in the permanent grade of ensign

shall be promoted to and appointed in the grade of lieutenant (junior grade) upon completion of three years of service. The authorized

number of officers in the grade of lieutenant (junior grade) shall be

temporarily increased as necessary to authorize such appointment.

(b) SEPARATION OF ENSIGNS FOUND NOT FULLY QUALIFIED.—If

an officer in the permanent grade of ensign is at any time found

not fully qualified, the officer’s commission shall be revoked and

the officer shall be separated from the commissioned service.

SEC. 224. ø33 U.S.C. 3024¿ PROMOTION BY SELECTION TO PERMANENT

GRADES ABOVE LIEUTENANT (JUNIOR GRADE).

Promotion to fill vacancies in each permanent grade above the

grade of lieutenant (junior grade) shall be made by selection from

the next lower grade upon recommendation of the personnel board.

SEC. 225. ø33 U.S.C. 3025¿ LENGTH OF SERVICE FOR PROMOTION PURPOSES.

(a) GENERAL RULE.—Each officer shall be assumed to have, for

promotion purposes, at least the same length of service as any

other officer below that officer on the lineal list.

(b) EXCEPTION.—Notwithstanding subsection (a), an officer who

has lost numbers shall be assumed to have, for promotion purposes, no greater service than the officer next above such officer in

such officer’s new position on the lineal list.

SEC. 226. ø33 U.S.C. 3026¿ APPOINTMENTS AND PROMOTIONS TO PERMANENT GRADES.

Appointments in and promotions to all permanent grades shall

be made by the President, by and with the advice and consent of

the Senate.

SEC. 227. ø33 U.S.C. 3027¿ GENERAL QUALIFICATION OF OFFICERS FOR

PROMOTION TO HIGHER PERMANENT GRADE.

No officer may be promoted to a higher permanent grade on

the active list until the officer has passed a satisfactory mental and

physical examination in accordance with regulations prescribed by

the Secretary.

SEC. 228. ø33 U.S.C. 3028¿ POSITIONS OF IMPORTANCE AND RESPONSIBILITY.

(a) DESIGNATION OF POSITIONS.—The Secretary may designate

positions in the Administration as being positions of importance

and responsibility for which it is appropriate that officers of the

Administration, if serving in those positions, serve in the grade of

vice admiral, rear admiral, or rear admiral (lower half), as designated by the Secretary for each position.

(b) ASSIGNMENT OF OFFICERS TO DESIGNATED POSITIONS.—The

Secretary may assign officers to positions designated under subsection (a).

(c) DIRECTOR OF NOAA CORPS AND OFFICE OF MARINE AND

AVIATION OPERATIONS.—The Secretary shall designate one position

under this section as responsible for oversight of the vessel and aircraft fleets and for the administration of the commissioned officer

corps. That position shall be filled by an officer on the lineal list

serving in or above the grade of rear admiral (lower half). For the
957 Sec. 229 NOAA COMMISSIONED OFFICER CORPS ACT OF 2002

specific purpose of administering the commissioned officer corps,

that position shall carry the title of Director of the National Oceanic and Atmospheric Administration Commissioned Officer Corps.

For the specific purpose of administering the vessel and aircraft

fleets, that position shall carry the title of Director of the Office of

Marine and Aviation Operations.

(d) GRADE.— (1) TEMPORARY APPOINTMENT TO GRADE DESIGNATED FOR

POSITION.—An officer assigned to a position under this section

while so serving has the grade designated for that position, if

appointed to that grade by the President, by and with the advice and consent of the Senate.

(2) REVERSION TO PERMANENT GRADE.—An officer who has

served in a grade above captain, upon termination of the officer’s assignment to the position for which that appointment

was made, shall, unless appointed or assigned to another position for which a higher grade is designated, revert to the grade

and number the officer would have occupied but for serving in

a grade above that of captain. In such a case, the officer shall

be an extra number in that grade.

(e) NUMBER OF OFFICERS APPOINTED.— (1) OVERALL LIMIT.—The total number of officers serving

on active duty at any one time in the grade of rear admiral

(lower half) or above may not exceed four.

(2) LIMIT BY GRADE.—The number of officers serving on active duty under appointments under this section may not

exceed—

(A) one in the grade of vice admiral;

(B) two in the grade of rear admiral; and

(C) two in the grade of rear admiral (lower half).

(f) PAY AND ALLOWANCES.—An officer appointed to a grade

under this section, while serving in that grade, shall have the pay

and allowances of the grade to which appointed.

(g) EFFECT OF APPOINTMENT.—An appointment of an officer

under this section—

(1) does not vacate the permanent grade held by the officer; and

(2) creates a vacancy on the active list.

SEC. 229. ø33 U.S.C. 3029¿ TEMPORARY APPOINTMENTS AND PROMOTIONS GENERALLY.

(a) ENSIGN.—Temporary appointments in the grade of ensign

may be made by the President alone. Each such temporary appointment terminates at the close of the next regular session of the

Congress unless the Senate sooner gives its advice and consent to

the appointment.

(b) LIEUTENANT (JUNIOR GRADE).—Officers in the permanent

grade of ensign may be temporarily promoted to and appointed in

the grade of lieutenant (junior grade) by the President alone whenever vacancies exist in higher grades.

(c) ANY ONE GRADE.—When determined by the Secretary to be

in the best interest of the service, officers in any permanent grade

may be temporarily promoted one grade by the President alone.

Any such temporary promotion terminates upon the transfer of the

officer to a new assignment.
Sec. 230 NOAA COMMISSIONED OFFICER CORPS ACT OF 2002 958

SEC. 230. ø33 U.S.C. 3030¿ TEMPORARY APPOINTMENT OR ADVANCEMENT OF COMMISSIONED OFFICERS IN TIME OF WAR OR

NATIONAL EMERGENCY.

(a) IN GENERAL.—Officers of the Administration shall be subject in like manner and to the same extent as personnel of the

Navy to all laws authorizing temporary appointment or advancement of commissioned officers in time of war or national emergency.

(b) LIMITATIONS.—Subsection (a) shall be applied subject to the

following limitations:

(1) A commissioned officer in the service of a military department under section 251 may, upon the recommendation of

the Secretary of the military department concerned, be temporarily promoted to a higher rank or grade.

(2) A commissioned officer in the service of the Administration may be temporarily promoted to fill vacancies in ranks

and grades caused by the transfer of commissioned officers to

the service and jurisdiction of a military department under section 251.

(3) Temporary appointments may be made in all grades to

which original appointments in the Administration are authorized, except that the number of officers holding temporary appointments may not exceed the number of officers transferred

to a military department under section 251.

SEC. 231. ø33 U.S.C. 3031¿ PAY AND ALLOWANCES; DATE OF ACCEPTANCE OF PROMOTION.

(a) ACCEPTANCE AND DATE OF PROMOTION.—An officer of the

commissioned corps who is promoted to a higher grade—

(1) is deemed for all purposes to have accepted the promotion upon the date the promotion is made by the President,

unless the officer expressly declines the promotion; and

(2) shall receive the pay and allowances of the higher

grade from that date unless the officer is entitled under another provision of law to receive the pay and allowances of the

higher grade from an earlier date.

(b) OATH OF OFFICE.—An officer who subscribed to the oath of

office required by section 3331 of title 5, United States Code, shall

not be required to renew such oath or to take a new oath upon promotion to a higher grade, if the service of the officer after the taking of such oath is continuous.

SEC. 232. ø33 U.S.C. 3032¿ SERVICE CREDIT AS DECK OFFICER OR JUNIOR ENGINEER FOR PROMOTION PURPOSES.

For purposes of promotion, there shall be counted in addition

to active commissioned service, service as deck officer or junior engineer.

SEC. 233. ø33 U.S.C. 3033¿ SUSPENSION DURING WAR OR EMERGENCY.

In time of emergency declared by the President or by the Congress, and in time of war, the President is authorized, in the President’s discretion, to suspend the operation of all or any part of the

provisions of law pertaining to promotion of commissioned officers

of the Administration.
959 Sec. 243 NOAA COMMISSIONED OFFICER CORPS ACT OF 2002

Subtitle C—Separation and Retirement of Officers

SEC. 241. ø33 U.S.C. 3041¿ INVOLUNTARY RETIREMENT OR SEPARATION.

(a) TRANSFER OF OFFICERS TO RETIRED LIST; SEPARATION FROM

SERVICE.—As recommended by a personnel board convened under

section 222—

(1) an officer in the permanent grade of captain or commander may be transferred to the retired list; and

(2) an officer in the permanent grade of lieutenant commander, lieutenant, or lieutenant (junior grade) who is not

qualified for retirement may be separated from the service.

(b) COMPUTATIONS.—In any fiscal year, the total number of officers selected for retirement or separation under subsection (a)

plus the number of officers retired for age may not exceed the

whole number nearest 4 percent of the total number of officers authorized to be on the active list, except as otherwise provided by

law.

(c) EFFECTIVE DATE OF RETIREMENTS AND SEPARATIONS.—A retirement or separation under subsection (a) shall take effect on the

first day of the sixth month beginning after the date on which the

Secretary approves the retirement or separation, except that if the

officer concerned requests an earlier retirement or separation date,

the date shall be as determined by the Secretary.

SEC. 242. ø33 U.S.C. 3042¿ SEPARATION PAY.

(a) AUTHORIZATION OF PAYMENT.—An officer who is separated

under section 241(a)(2) and who has completed more than three

years of continuous active service immediately before that separation is entitled to separation pay computed under subsection (b) unless the Secretary determines that the conditions under which the

officer is separated do not warrant payment of that pay.

(b) AMOUNT OF SEPARATION PAY.— (1) SIX OR MORE YEARS.—In the case of an officer who has

completed six or more years of continuous active service immediately before that separation, the amount of separation pay to

be paid to the officer under this section is 10 percent of the

product of—

(A) the years of active service creditable to the officer;

and

(B) 12 times the monthly basic pay to which the officer

was entitled at the time of separation.

(2) THREE TO SIX YEARS.—In the case of an officer who has

completed three or more but fewer than six years of continuous

active service immediately before that separation, the amount

of separation pay to be paid to the officer under this section is

one-half of the amount computed under paragraph (1).

(c) OTHER CONDITIONS, REQUIREMENTS, AND ADMINISTRATIVE

PROVISIONS.—The provisions of subsections (f), (g), and (h) of section 1174 of title 10, United States Code, shall apply to separation

pay under this section in the same manner as such provisions

apply to separation pay under that section.

SEC. 243. ø33 U.S.C. 3043¿ MANDATORY RETIREMENT FOR AGE.

(a) OFFICERS BELOW GRADE OF REAR ADMIRAL (LOWER

HALF).—Unless retired or separated earlier, each officer on the lin-
Sec. 244 NOAA COMMISSIONED OFFICER CORPS ACT OF 2002 960

eal list of the commissioned corps who is serving in a grade below

the grade of rear admiral (lower half) shall be retired on the first

day of the month following the month in which the officer becomes

62 years of age.

(b) FLAG OFFICERS.—Notwithstanding subsection (a), the President may defer the retirement of an officer serving in a position

that carries a grade above captain for such period as the President

considers advisable, but such a deferment may not extend beyond

the first day of the month following the month in which the officer

becomes 64 years of age.

SEC. 244. ø33 U.S.C. 3044¿ RETIREMENT FOR LENGTH OF SERVICE.

An officer who has completed 20 years of service, of which at

least 10 years was service as a commissioned officer, may at any

time thereafter, upon application by such officer and in the discretion of the President, be placed on the retired list.

SEC. 245. ø33 U.S.C. 3045¿ COMPUTATION OF RETIRED PAY.

(a) OFFICERS FIRST BECOMING MEMBERS BEFORE SEPTEMBER 8,

1980.—Each officer on the retired list who first became a member

of a uniformed service before September 8, 1980, shall receive retired pay at the rate determined by multiplying—

(1) the retired pay base determined under section 1406(g)

of title 10, United States Code; by

(2) 21⁄2 percent of the number of years of service that may

be credited to the officer under section 1405 of such title as if

the officer’s service were service as a member of the Armed

Forces.

The retired pay so computed may not exceed 75 percent of the retired pay base.

(b) OFFICERS FIRST BECOMING MEMBERS ON OR AFTER SEPTEMBER 8, 1980.—Each officer on the retired list who first became

a member of a uniformed service on or after September 8, 1980,

shall receive retired pay at the rate determined by multiplying—

(1) the retired pay base determined under section 1407 of

title 10, United States Code; by

(2) the retired pay multiplier determined under section

1409 of such title for the number of years of service that may

be credited to the officer under section 1405 of such title as if

the officer’s service were service as a member of the Armed

Forces.

(c) TREATMENT OF FULL AND FRACTIONAL PARTS OF MONTHS IN

COMPUTING YEARS OF SERVICE.—

(1) IN GENERAL.—In computing the number of years of

service of an officer for the purposes of subsection (a)—

(A) each full month of service that is in addition to the

number of full years of service creditable to the officer

shall be credited as 1⁄12 of a year; and

(B) any remaining fractional part of a month shall be

disregarded.

(2) ROUNDING.—Retired pay computed under this section,

if not a multiple of $1, shall be rounded to the next lower multiple of $1.
961 Sec. 251 NOAA COMMISSIONED OFFICER CORPS ACT OF 2002

SEC. 246. ø33 U.S.C. 3046¿ RETIRED GRADE AND RETIRED PAY.

Each officer retired pursuant to law shall be placed on the retired list with the highest grade satisfactorily held by that officer

while on active duty including active duty pursuant to recall, under

permanent or temporary appointment, and shall receive retired pay

based on such highest grade, if—

(1) the officer’s performance of duty in such highest grade

has been satisfactory, as determined by the Secretary of the

department or departments under whose jurisdiction the officer served; and

(2) unless retired for disability, the officer’s length of service in such highest grade is no less than that required by the

Secretary of officers retiring under permanent appointment in

that grade.

SEC. 247. ø33 U.S.C. 3047¿ RETIRED RANK AND PAY HELD PURSUANT TO

OTHER LAWS UNAFFECTED.

Nothing in this subtitle shall prevent an officer from being

placed on the retired list with the highest rank and with the highest retired pay to which the officer is entitled under any other provision of law.

SEC. 248. ø33 U.S.C. 3048¿ CONTINUATION ON ACTIVE DUTY; DEFERRAL

OF RETIREMENT.

The provisions of subchapter IV of chapter 36 of title 10,

United States Code, relating to continuation on active duty and deferral of retirement shall apply to commissioned officers of the Administration.

SEC. 249. ø33 U.S.C. 3049¿ RECALL TO ACTIVE DUTY.

The provisions of chapter 39 of title 10, United States Code, relating to recall of retired officers to active duty, including the limitations on such recalls, shall apply to commissioned officers of the

Administration.

Subtitle D—Service of Officers With the Military

Departments

SEC. 251. ø33 U.S.C. 3061¿ COOPERATION WITH AND TRANSFER TO

MILITARY DEPARTMENTS.

(a) TRANSFERS OF RESOURCES AND OFFICERS DURING NATIONAL

EMERGENCY.—

(1) TRANSFERS AUTHORIZED.—The President may, whenever in the judgment of the President a sufficient national

emergency exists, transfer to the service and jurisdiction of a

military department such vessels, equipment, stations, and officers of the Administration as the President considers to be in

the best interest of the country.

(2) RESPONSIBILITY FOR FUNDING OF TRANSFERRED RESOURCES AND OFFICERS.—After any such transfer all expenses

connected therewith shall be defrayed out of the appropriations

for the department to which the transfer is made.

(3) RETURN OF TRANSFERRED RESOURCES AND OFFICERS.—

Such transferred vessels, equipment, stations, and officers

shall be returned to the Administration when the national

emergency ceases, in the opinion of the President.
Sec. 252 NOAA COMMISSIONED OFFICER CORPS ACT OF 2002 962

(4) RULE OF CONSTRUCTION.—Nothing in this section shall

be construed as transferring the Administration or any of its

functions from the Department of Commerce except in time of

national emergency and to the extent provided in this section.

(b) LIMITATION ON TRANSFER OF OFFICERS.—This section does

not authorize the transfer of an officer of the Administration to a

military department if the accession or retention of that officer in

that military department is otherwise not authorized by law.

(c) STATUS OF TRANSFERRED OFFICERS.—An officer of the Administration transferred under this section, shall, while under the

jurisdiction of a military department, have proper military status

and shall be subject to the laws, regulations, and orders for the

government of the Army, Navy, or Air Force, as the case may be,

insofar as the same may be applicable to persons whose retention

permanently in the military service of the United States is not contemplated by law.

SEC. 252. ø33 U.S.C. 3062¿ RELATIVE RANK OF OFFICERS WHEN SERVING WITH ARMY, NAVY, OR AIR FORCE.

When serving with the Army, Navy, or Air Force, an officer of

the Administration shall rank with and after officers of corresponding grade in the Army, Navy, or Air Force of the same

length of service in grade. Nothing in this subtitle shall be construed to affect or alter an officer’s rates of pay and allowances

when not assigned to military duty.

SEC. 253. ø33 U.S.C. 3063¿ RULES AND REGULATIONS WHEN COOPERATING WITH MILITARY DEPARTMENTS.

(a) JOINT REGULATIONS.—The Secretary of Defense and the

Secretary of Commerce shall jointly prescribe regulations—

(1) governing the duties to be performed by the Administration in time of war; and

(2) providing for the cooperation of the Administration

with the military departments in time of peace in preparation

for its duties in time of war.

(b) APPROVAL.—Regulations under subsection (a) shall not be

effective unless approved by each of those Secretaries.

(c) COMMUNICATIONS.—Regulations under subsection (a) may

provide procedures for making reports and communications between a military department and the Administration.

Subtitle E—Rights and Benefits

SEC. 261. ø33 U.S.C. 3071¿ APPLICABILITY OF CERTAIN PROVISIONS OF

TITLE 10, UNITED STATES CODE.

(a) PROVISIONS MADE APPLICABLE TO THE CORPS.—The rules of

law that apply to the Armed Forces under the following provisions

of title 10, United States Code, as those provisions are in effect

from time to time, apply also to the commissioned officer corps of

the Administration:

(1) Chapter 40, relating to leave.

(2) Section 533(b), relating to constructive service.

(3) Section 716, relating to transfers between the armed

forces and to and from National Oceanic and Atmospheric Administration.

(4) Section 1035, relating to deposits of savings.
963 Sec. 262 NOAA COMMISSIONED OFFICER CORPS ACT OF 2002

(5) Section 1036, relating to transportation and travel allowances for escorts for dependents of members.

(6) Section 1052, relating to reimbursement for adoption

expenses.

(7) Section 1174a, relating to special separation benefits

(except that benefits under subsection (b)(2)(B) of such section

are subject to the availability of appropriations for such purpose and are provided at the discretion of the Secretary of

Commerce).

(8) Chapter 61, relating to retirement or separation for

physical disability.

(9) Chapter 69, relating to retired grade, except sections

1370, 1375, and 1376.

(10) Chapter 71, relating to computation of retired pay.

(11) Chapter 73, relating to annuities based on retired or

retainer pay.

(12) Subchapter II of chapter 75, relating to death benefits.

(13) Section 2634, relating to transportation of motor vehicles for members on permanent change of station.

(14) Sections 2731 and 2735, relating to property loss incident to service.

(15) Section 2771, relating to final settlement of accounts

of deceased members.

(16) Such other provisions of subtitle A of that title as may

be adopted for applicability to the commissioned officer corps

of the National Oceanic and Atmospheric Administration by

any other provision of law.

(b) REFERENCES.—The authority vested by title 10, United

States Code, in the ‘‘military departments’’, ‘‘the Secretary concerned’’, or ‘‘the Secretary of Defense’’ with respect to the provisions

of law referred to in subsection (a) shall be exercised, with respect

to the commissioned officer corps of the Administration, by the Secretary of Commerce or the Secretary’s designee.

SEC. 262. ø33 U.S.C. 3072¿ ELIGIBILITY FOR VETERANS BENEFITS AND

OTHER RIGHTS, PRIVILEGES, IMMUNITIES, AND BENEFITS UNDER CERTAIN PROVISIONS OF LAW.

(a) IN GENERAL.—Active service of officers of the Administration shall be deemed to be active military service for the purposes

of all rights, privileges, immunities, and benefits under the following:

(1) Laws administered by the Secretary of Veterans Affairs.

(2) The Servicemembers Civil Relief Act.

(3) Section 210 of the Social Security Act (42 U.S.C. 410),

as in effect before September 1, 1950.

(b) EXERCISE OF AUTHORITY.—In the administration of the

laws and regulations referred to in subsection (a), with respect to

the Administration, the authority vested in the Secretary of Defense and the Secretaries of the military departments and their respective departments shall be exercised by the Secretary of Commerce.
Sec. 263 NOAA COMMISSIONED OFFICER CORPS ACT OF 2002 964

SEC. 263. ø33 U.S.C. 3073¿ MEDICAL AND DENTAL CARE.

The Secretary may provide medical and dental care, including

care in private facilities, for personnel of the Administration entitled to that care by law or regulation.

SEC. 264. ø33 U.S.C. 3074¿ COMMISSARY PRIVILEGES.

(a) EXTENSION OF PRIVILEGE.—Commissioned officers, ships’ officers, and members of crews of vessels of the Administration shall

be permitted to purchase commissary and quartermaster supplies

as far as available from the Armed Forces at the prices charged officers and enlisted members of the Armed Forces.

(b) SALES OF RATIONS, STORES, UNIFORMS, AND RELATED

EQUIPMENT.—The Secretary may purchase ration supplies for

messes, stores, uniforms, accouterments, and related equipment for

sale aboard ship and shore stations of the Administration to members of the uniformed services and to personnel assigned to such

ships or shore stations. Sales shall be in accordance with regulations prescribed by the Secretary, and proceeds therefrom shall, as

far as is practicable, fully reimburse the appropriations charged

without regard to fiscal year.

(c) SURVIVING SPOUSES’ RIGHTS.—Rights extended to members

of the uniformed services in this section are extended to their surviving spouses and to such others as are designated by the Secretary concerned.

SEC. 265. ø33 U.S.C. 3075¿ AUTHORITY TO USE APPROPRIATED FUNDS

FOR TRANSPORTATION AND REIMBURSEMENT OF CERTAIN ITEMS.

(a) TRANSPORTATION OF EFFECTS OF DECEASED OFFICERS.—In

the case of an officer who dies on active duty, the Secretary may

provide, from appropriations made available to the Administration,

transportation (including packing, unpacking, crating, and uncrating) of personal and household effects of that officer to the official

residence of record of that officer. However, upon application by the

dependents of such an officer, such transportation may be provided

to such other location as may be determined by the Secretary.

(b) REIMBURSEMENT FOR SUPPLIES FURNISHED BY OFFICERS TO

DISTRESSED AND SHIPWRECKED PERSONS.—Under regulations prescribed by the Secretary, appropriations made available to the Administration may be used to reimburse an officer for food, clothing,

medicines, and other supplies furnished by the officer—

(1) for the temporary relief of distressed persons in remote

localities; or

(2) to shipwrecked persons who are temporarily provided

for by the officer.

SEC. 266. ø33 U.S.C. 3076¿ PRESENTATION OF UNITED STATES FLAG

UPON RETIREMENT.

(a) PRESENTATION OF FLAG UPON RETIREMENT.—Upon the release of a commissioned officer from active commissioned service

for retirement, the Secretary shall present a United States flag to

the officer.

(b) MULTIPLE PRESENTATIONS NOT AUTHORIZED.—An officer is

not eligible for presentation of a flag under subsection (a) if the officer has previously been presented a flag under this section or any
965 Sec. 266 NOAA COMMISSIONED OFFICER CORPS ACT OF 2002

other provision of law providing for the presentation of a United

States flag incident to release from active service for retirement.

(c) NO COST TO RECIPIENT.—The presentation of a flag under

this section shall be at no cost to the recipient.

Subtitle F—Repeals and Conforming Amendments

[Omitted-Amendments]
966

4. EDUCATIONAL SERVICES FOR MEMBERS

Section 1212 of the Department of Defense Authorization

Act, 1986

(Public Law 99–145; approved Nov. 8, 1985)

SEC. 1212. ø10 U.S.C. 113 note¿ PROHIBITION OF CERTAIN RESTRICTIONS ON INSTITUTIONS ELIGIBLE TO PROVIDE EDUCATIONAL SERVICES

(a) No solicitation, contract, or agreement for the provision of

offduty postsecondary education services for members of the Armed

Forces of the United States, civilian employees of the Department

of Defense, or the dependents of such members or employees may

discriminate against or preclude any accredited academic institution authorized to award one or more associate degrees from offering courses within its lawful scope of authority solely on the basis

of such institution’s lack of authority to award a baccalaureate degree.

(b) No solicitation, contract, or agreement for the provision of

offduty postsecondary education services for members of the Armed

Forces of the United States, civilian employees of the Department

of Defense, or the dependents of such members or employees, other

than those for services at the graduate or postgraduate level, may

limit the offering of such services or any group, category, or level

of courses to a single academic institution. However, nothing in

this section shall prohibit such actions taken in accordance with

regulations of the Secretary of Defense which are uniform for all

armed services as may be necessary to avoid unnecessary duplication of offerings, consistent with the purpose of this provision of ensuring the availability of alternative offerors of such services to the

maximum extent feasible.

(c)(1) The Secretary of Defense shall conduct a study to determine the current and future needs of members of the Armed

Forces, civilian employees of the Department of Defense, and the

dependents of such members and employees for postsecondary education services at overseas locations. The Secretary shall determine

on the basis of the results of that study whether the policies and

procedures of the Department in effect on the date of the enactment of the Department of Defense Authorization Act for Fiscal

Years 1990 and 1991 with respect to the procurement of such services are—

(A) consistent with the provisions of subsections (a) and

(b);

(B) adequate to ensure the recipients of such services the

benefit of a choice in the offering of such services; and

(C) adequate to ensure that persons stationed at geographically isolated military installations or at installations
967 Sec. 1212 EDUCATIONAL SERVICES FOR MEMBERS

with small complements of military personnel are adequately

served.

The Secretary shall complete the study in such time as necessary

to enable the Secretary to submit the report required by paragraph

(2)(A) by the deadline specified in that paragraph.

(2)(A) The Secretary shall submit to the Committees on Armed

Services of the Senate and the House of Representatives a report

on the results of the study referred to in paragraph (1), together

with a copy of any revisions in policies and procedures made as a

result of such study. The report shall be submitted not later than

March 1, 1990.

(B) The Secretary shall include in the report an explanation of

how determinations are made with regard to—

(i) affording members, employees, and dependents a choice

in the offering of courses of postsecondary education; and

(ii) whether the services provided under a contract for such

services should be limited to an installation, theater, or other

geographic area.

(3)(A) Except as provided in subparagraph (B), no contract for

the provision of services referred to in subsection (a) may be awarded, and no contract or agreement entered into before the date of

the enactment of this paragraph may be renewed or extended on

or after such date, until the end of the 60-day period beginning on

the date on which the report referred to in paragraph (2)(A) is received by the committees named in that paragraph.

(B) A contract or an agreement in effect on October 1, 1989,

for the provision of postsecondary education services in the European Theater for members of the Armed Forces, civilian employees

of the Department of Defense, and the dependents of such members

and employees may be renewed or extended without regard to the

limitation in subparagraph (A).

(C) In the case of a contract for services with respect to which

a solicitation is pending on the date of the enactment of this paragraph, the contract may be awarded—

(i) on the basis of the solicitation as issued before the date

of the enactment of this paragraph;

(ii) on the basis of the solicitation issued before the date

of the enactment of this paragraph modified so as to conform

to any changes in policies and procedures the Secretary determines should be made as a result of the study required under

paragraph (1); or

(iii) on the basis of a new solicitation.

(d) Nothing in this section shall be construed to require more

than one academic institution to be authorized to offer courses

aboard a particular naval vessel.
968

5. EFFORTS TO ENHANCE RECRUITING FOR THE ARMED

SERVICES

a. Treating Persons with GED or Home School Diploma as

Eligible for Enlistment in Armed Forces

(Section 571 of the Strom Thurmond National Defense Authorization Act for Fiscal

Year 1999; Public Law 105–261, approved Oct. 17, 1998)

SEC. 571. ø10 U.S.C. 520 note¿ PILOT PROGRAM FOR TREATING GED

AND HOME SCHOOL DIPLOMA RECIPIENTS AS HIGH

SCHOOL GRADUATES FOR DETERMINATIONS OF ELIGIBILITY FOR ENLISTMENT IN THE ARMED FORCES.

(a) PROGRAM REQUIRED.—The Secretary of Defense shall establish a pilot program to assess whether the Armed Forces could better meet recruiting requirements by treating GED recipients and

home school diploma recipients as having graduated from high

school with a high school diploma for the purpose of determining

the eligibility of those persons to enlist in the Armed Forces. The

Secretary of each military department shall administer the pilot

program for the Armed Force or armed forces under the jurisdiction of that Secretary.

(b) PERSONS ELIGIBLE UNDER THE PILOT PROGRAM AS HIGH

SCHOOL GRADUATES.—Under the pilot program, a person shall be

treated as having graduated from high school with a high school

diploma for the purpose described in subsection (a) if—

(1) the person has completed a general education development program while participating in the National Guard Challenge Program under section 509 of title 32, United States

Code, and is a GED recipient; or

(2) the person is a home school diploma recipient and provides a transcript demonstrating completion of high school to

the military department involved under the pilot program.

(c) GED AND HOME SCHOOL DIPLOMA RECIPIENTS.—For the

purposes of this section—

(1) a person is a GED recipient if the person, after completing a general education development program, has obtained certification of high school equivalency by meeting State

requirements and passing a State approved exam that is administered for the purpose of providing an appraisal of the person’s achievement or performance in the broad subject matter

areas usually required for high school graduates; and

(2) a person is a home school diploma recipient if the person has received a diploma for completing a program of education through the high school level at a home school, without

regard to whether the home school is treated as a private

school under the law of the State in which located.
969 Sec. 573 RECRUITING EFFORTS

(d) ANNUAL LIMIT ON NUMBER.—Not more than 1,250 GED recipients and home school diploma recipients enlisted by an armed

force during a fiscal year may be treated under the pilot program

as having graduated from high school with a high school diploma.

(e) DURATION OF PILOT PROGRAM.—The pilot program shall be

in effect during the period beginning on October 1, 1998, and ending on September 30, 2003.

(f ) REPORT.—Not later than February 1, 2004, the Secretary of

Defense shall submit to the Committee on Armed Services of the

Senate and the Committee on Armed Services of the House of Representatives a report on the pilot program. The report shall include

the following, set forth separately for GED recipients and home

school diploma recipients:

(1) The assessment of the Secretary of Defense, and any

assessment of any of the Secretaries of the military departments, regarding the value of, and any necessity for, authority

to treat GED recipients and home school diploma recipients as

having graduated from high school with a high school diploma

for the purpose of determining the eligibility of those persons

to enlist in the Armed Forces.

(2) A comparison (shown by armed force and by each fiscal

year of the pilot program) of the performance of the persons

who enlisted during the fiscal year as GED or home school diploma recipients treated under the pilot program as having

graduated from high school with a high school diploma with

the performance of the persons who enlisted in that armed

force during the same fiscal year after having graduated from

high school with a high school diploma, with respect to the following:

(A) Attrition.

(B) Discipline.

(C) Adaptability to military life.

(D) Aptitude for mastering the skills necessary for

technical specialties.

(E) Reenlistment rates.

(g) STATE DEFINED.—For purposes of this section, the term

‘‘State’’ includes the District of Columbia, the Commonwealth of

Puerto Rico, and the territories of the United States.

b. Army College First Pilot Program for Delayed Entry into

Active Service in the Army

(Section 573 of the National Defense Authorization Act for Fiscal Year 2000; Public

Law 106–65, approved Oct. 5, 1999)

SEC. 573. ø10 U.S.C. 513 note¿ ARMY COLLEGE FIRST PILOT PROGRAM.

(a) PROGRAM REQUIRED.—The Secretary of the Army shall establish a pilot program (to be known as the ‘‘Army College First’’

program) to assess whether the Army could increase the number

of, and the level of the qualifications of, persons entering the Army

as enlisted members by encouraging recruits to pursue higher education or vocational or technical training before entry into active

service in the Army.
Sec. 573 RECRUITING EFFORTS 970

(b) DELAYED ENTRY WITH ALLOWANCE FOR HIGHER EDU- CATION.—Under the pilot program, the Secretary may—

(1) exercise the authority under section 513 of title 10,

United States Code—

(A) to accept the enlistment of a person as a Reserve

for service in the Selected Reserve or Individual Ready Reserve of the Army Reserve or, notwithstanding the scope

of the authority under subsection (a) of that section, in the

Army National Guard of the United States; and

(B) to authorize, notwithstanding the period limitation

in subsection (b) of that section, a delay of the enlistment

of any such person in a regular component under that subsection for the period during which the person is enrolled

in, and pursuing a program of education at, an institution

of higher education, or a program of vocational or technical

training, on a full-time basis that is to be completed within

the maximum period of delay determined for that person

under subsection (c); and

(2) subject to paragraph (2) of subsection (d) and except as

provided in paragraph (3) of that subsection, pay an allowance

to a person accepted for enlistment under paragraph (1)(A) for

each month of the period during which that person is enrolled

in and pursuing a program described in paragraph (1)(B).

(c) MAXIMUM PERIOD OF DELAY.—The period of delay authorized a person under paragraph (1)(B) of subsection (b) may not exceed the 30-month period beginning on the date of the person’s enlistment accepted under paragraph (1)(A) of such subsection.

(d) ALLOWANCE.—(1) The monthly allowance paid under subsection (b)(2) shall be equal to the amount of the subsistence allowance provided for certain members of the Senior Reserve Officers’

Training Corps with the corresponding number of years of participation under section 209(a) of title 37, United States Code.

(2) An allowance may not be paid to a person under this section for more than 24 months.

(3) A member of the Selected Reserve of a reserve component

may be paid an allowance under this section only for months during which the member performs satisfactorily as a member of a

unit of the reserve component that trains as prescribed in section

10147(a)(1) of title 10, United States Code, or section 502(a) of title

32, United States Code. Satisfactory performance shall be determined under regulations prescribed by the Secretary.

(4) An allowance under this section is in addition to any other

pay or allowance to which a member of a reserve component is entitled by reason of participation in the Ready Reserve of that component.

[(e) Repealed.]

(f) RECOUPMENT OF ALLOWANCE.—(1) A person who, after receiving an allowance under this section, fails to complete the total

period of service required of that person in connection with delayed

entry authorized for the person under section 513 of title 10,

United States Code, shall repay the United States the amount

which bears the same ratio to the total amount of that allowance

paid to the person as the unserved part of the total required period

of service bears to the total period.
971 Sec. 561 RECRUITING EFFORTS

(2) An obligation to repay the United States imposed under

paragraph (1) is for all purposes a debt owed to the United States.

(3) A discharge of a person in bankruptcy under title 11,

United States Code, that is entered less than five years after the

date on which the person was, or was to be, enlisted in the regular

Army pursuant to the delayed entry authority under section 513 of

title 10, United States Code, does not discharge that person from

a debt arising under paragraph (1).

(4) The Secretary of the Army may waive, in whole or in part,

a debt arising under paragraph (1) in any case for which the Secretary determines that recovery would be against equity and good

conscience or would be contrary to the best interests of the United

States.

(g) COMPARISON GROUP.—To perform the assessment under

subsection (a), the Secretary may define and study any group not

including persons receiving a benefit under subsection (b) and compare that group with any group or groups of persons who receive

such benefits under the pilot program.

(h) DURATION OF PILOT PROGRAM.—The pilot program shall be

in effect during the period beginning on October 1, 1999, and ending on September 30, 2004.

(i) REPORT.—Not later than February 1, 2004, the Secretary

shall submit to the Committees on Armed Services of the Senate

and the House of Representatives a report on the pilot program.

The report shall include the following:

(1) The assessment of the Secretary regarding the value of

the authority under this section for achieving the objectives of

increasing the number of, and the level of the qualifications of,

persons entering the Army as enlisted members.

(2) Any recommendation for legislation or other action that

the Secretary considers appropriate to achieve those objectives

through grants of entry delays and financial benefits for advanced education and training of recruits.

c. Pilot Programs to Enhance Recruiting

(Sections 561 and 564 of the Floyd D. Spence National Defense Authorization Act

for Fiscal Year 2001, as enacted into law by Public Law 106–398, approved Oct.

30, 2000)

SEC. 561. ø10 U.S.C. 503 note¿ ARMY RECRUITING PILOT PROGRAMS.

(a) REQUIREMENT FOR PROGRAMS.—The Secretary of the Army

shall carry out pilot programs to test various recruiting approaches

under this section for the following purposes:

(1) To assess the effectiveness of the recruiting approaches

for creating enhanced opportunities for recruiters to make direct, personal contact with potential recruits.

(2) To improve the overall effectiveness and efficiency of

Army recruiting activities.

(b) OUTREACH THROUGH MOTOR SPORTS.—(1) One of the pilot

programs shall be a pilot program of public outreach that associates the Army with motor sports competitions to achieve the objectives set forth in paragraph (2).

(2) The events and activities undertaken under the pilot program shall be designed to provide opportunities for Army recruiters
Sec. 561 RECRUITING EFFORTS 972

to make direct, personal contact with high school students to

achieve the following objectives:

(A) To increase enlistments by students graduating from

high school.

(B) To reduce attrition in the Delayed Entry Program of

the Army by sustaining the personal commitment of students

who have elected delayed entry into the Army under the program.

(3) Under the pilot program, the Secretary of the Army shall

provide for the following:

(A) For Army recruiters or other Army personnel—

(i) to organize Army sponsored career day events in

association with national motor sports competitions; and

(ii) to arrange for or encourage attendance at the competitions by high school students, teachers, guidance counselors, and administrators of high schools located near the

competitions.

(B) For Army recruiters and other soldiers to attend national motor sports competitions—

(i) to display exhibits depicting the contemporary

Army and career opportunities in the Army; and

(ii) to discuss those opportunities with potential recruits.

(C) For the Army to sponsor a motor sports racing team

as part of an integrated program of recruitment and publicity

for the Army.

(D) For the Army to sponsor motor sports competitions for

high school students at which recruiters meet with potential

recruits.

(E) For Army recruiters or other Army personnel to compile in an Internet accessible database the names, addresses,

telephone numbers, and electronic mail addresses of persons

who are identified as potential recruits through activities

under the pilot program.

(F) Any other activities associated with motor sports competition that the Secretary determines appropriate for Army

recruitment purposes.

(c) OUTREACH AT VOCATIONAL SCHOOLS AND COMMUNITY COLLEGES.—(1) One of the pilot programs shall be a pilot program

under which Army recruiters are assigned, as their primary responsibility, at postsecondary vocational institutions and community colleges for the purpose of recruiting students graduating from

those institutions and colleges, recent graduates of those institutions and colleges, and students withdrawing from enrollments in

those institutions and colleges.

(2) The Secretary of the Army shall select the institutions and

colleges to be invited to participate in the pilot program.

(3) The conduct of the pilot program at an institution or college

shall be subject to an agreement which the Secretary shall enter

into with the governing body or authorized official of the institution

or college, as the case may be.

(4) Under the pilot program, the Secretary shall provide for the

following:
973 Sec. 561 RECRUITING EFFORTS

(A) For Army recruiters to be placed in postsecondary vocational institutions and community colleges to serve as a resource for guidance counselors and to recruit for the Army.

(B) For Army recruiters to recruit from among students

and graduates described in paragraph (1).

(C) For the use of telemarketing, direct mail, interactive

voice response systems, and Internet website capabilities to assist the recruiters in the postsecondary vocational institutions

and community colleges.

(D) For any other activities that the Secretary determines

appropriate for recruitment activities in postsecondary vocational institutions and community colleges.

(5) In this subsection, the term ‘‘postsecondary vocational institution’’ has the meaning given the term in section 102(c) of the

Higher Education Act of 1965 (20 U.S.C. 1002(c)).

(d) CONTRACT RECRUITING INITIATIVES.—(1) One of the pilot

programs shall be a program that expands in accordance with this

subsection the scope of the Army’s contract recruiting initiatives

that are ongoing as of the date of the enactment of this Act. Under

the pilot program, the Secretary of the Army shall select at least

10 recruiting companies to apply the initiatives in efforts to recruit

personnel for the Army.

(2) Under the pilot program, the Secretary shall provide for the

following:

(A) For replacement of the Regular Army and Army Reserve recruiters by contract recruiters in the 10 recruiting companies selected under paragraph (1).

(B) For operation of the 10 companies under the same

rules as the other Army recruiting companies.

(C) For use of the offices, facilities, and equipment of the

10 companies by the contract recruiters.

(D) For reversion to performance of the recruiting activities by Regular Army and Army Reserve soldiers in the 10

companies upon termination of the pilot program.

(E) For any other uses of contractor personnel for Army recruiting activities that the Secretary determines appropriate.

(e) DURATION OF PILOT PROGRAMS.—The pilot programs required by this section shall be carried out during the period beginning on October 1, 2000, and, subject to subsection (f ), ending on

September 30, 2007.

(f ) AUTHORITY TO EXPAND OR EXTEND PILOT PROGRAMS.—The

Secretary may expand the scope of any of the pilot programs

(under subsection (b)(3)(F), (c)(4)(D), (d)(2)(E), or otherwise) or extend the period for any of the pilot programs. Before doing so in

the case of a pilot program, the Secretary of the Army shall submit

to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a written notification of the expansion of the pilot program (together with

the scope of the expansion) or the continuation of the pilot program

(together with the period of the extension), as the case may be.

(g) REPORTS.—Not later than February 1, 2008, the Secretary

of the Army shall submit to the Committees on Armed Services of

the Senate and the House of Representatives a separate report on
Sec. 564 RECRUITING EFFORTS 974

each of the pilot programs carried out under this section. The report on a pilot program shall include the following:

(1) The Secretary’s assessment of the value of the actions

taken in the administration of the pilot program for increasing

the effectiveness and efficiency of Army recruiting.

(2) Any recommendations for legislation or other action

that the Secretary considers appropriate to increase the effectiveness and efficiency of Army recruiting.

* * * * * * *

SEC. 564. ø10 U.S.C. 503 note¿ PILOT PROGRAM TO ENHANCE MILITARY

RECRUITING BY IMPROVING MILITARY AWARENESS OF

SCHOOL COUNSELORS AND EDUCATORS.

(a) IN GENERAL.—The Secretary of Defense shall conduct a

pilot program to determine if cooperation with military recruiters

by local educational agencies and by institutions of higher education could be enhanced by improving the understanding of school

counselors and educators about military recruiting and military career opportunities. The pilot program shall be conducted during a

three-year period beginning not later than 180 days after the date

of the enactment of this Act.

(b) CONDUCT OF PILOT PROGRAM THROUGH PARTICIPATION IN

INTERACTIVE INTERNET SITE.—(1) The pilot program shall be conducted by means of participation by the Department of Defense in

a qualifying interactive Internet site.

(2) For purposes of this section, a qualifying interactive Internet site is an Internet site in existence as of the date of the enactment of this Act that is designed to provide to employees of local

educational agencies and institutions of higher education participating in the Internet site—

(A) systems for communicating;

(B) resources for individual professional development;

(C) resources to enhance individual on-the-job effectiveness; and

(D) resources to improve organizational effectiveness.

(3) Participation in an Internet site by the Department of Defense for purposes of this section shall include—

(A) funding;

(B) assistance; and

(C) access by other Internet site participants to Department of Defense aptitude testing programs, career development

information, and other resources, in addition to information on

military recruiting and career opportunities.

(c) REPORT.—The Secretary of Defense shall submit to the

Committee on Armed Services of the Senate and the Committee on

Armed Services of the House of Representatives a report providing

the Secretary’s findings and conclusions on the pilot program not

later than 180 days after the end of the three-year program period.
975

6. EXPERIMENTAL PERSONNEL PROGRAM FOR

SCIENTIFIC AND TECHNICAL PERSONNEL

Section 1101 of the Strom Thurmond National Defense

Authorization Act for Fiscal Year 1999

(Public Law 105–261, approved Oct. 17, 1998)

SEC. 1101. ø5 U.S.C. 3104 note¿ EXPERIMENTAL PERSONNEL PROGRAM

FOR SCIENTIFIC AND TECHNICAL PERSONNEL.

(a) PROGRAM AUTHORIZED.—During the program period specified in subsection (e)(1), the Secretary of Defense may carry out a

program of experimental use of the special personnel management

authority provided in subsection (b) in order to facilitate recruitment of eminent experts in science or engineering for research and

development projects administered by the Defense Advanced Research Projects Agency and research and development projects administered by laboratories designated for the program by the Secretary from among the laboratories of each of the military departments.

(b) SPECIAL PERSONNEL MANAGEMENT AUTHORITY.—Under the

program, the Secretary may—

(1) without regard to any provision of title 5, United States

Code, governing the appointment of employees in the civil service, appoint scientists and engineers from outside the civil

service and uniformed services (as such terms are defined in

section 2101 of such title) to—

(A) not more than 40 scientific and engineering positions in the Defense Advanced Research Projects Agency;

(B) not more than 40 scientific and engineering positions in the designated laboratories of each of the military

services; and

(C) not more than a total of 10 scientific and engineering positions in the National Imagery and Mapping Agency

and the National Security Agency;

(2) prescribe the rates of basic pay for positions to which

employees are appointed under paragraph (1) at rates not in

excess of the maximum rate of basic pay authorized for seniorlevel positions under section 5376 of title 5, United States

Code, as increased by locality-based comparability payments

under section 5304 of such title, notwithstanding any provision

of such title governing the rates of pay or classification of employees in the executive branch; and

(3) pay any employee appointed under paragraph (1) payments in addition to basic pay within the limit applicable to

the employee under subsection (d)(1).
Sec. 1101 EXPERIMENTAL PERSONNEL PROGRAM 976

(c) LIMITATION ON TERM OF APPOINTMENT.—(1) Except as provided in paragraph (2), the service of an employee under an appointment under subsection (b)(1) may not exceed 4 years.

(2) The Secretary may, in the case of a particular employee, extend the period to which service is limited under paragraph (1) by

up to 2 years if the Secretary determines that such action is necessary to promote the efficiency of the Defense Advanced Research

Projects Agency.

(d) LIMITATIONS ON ADDITIONAL PAYMENTS.—(1) The total

amount of the additional payments paid to an employee under subsection (b)(3) for any 12-month period may not exceed the least of

the following amounts: (A) $25,000.

(B) The amount equal to 25 percent of the employee’s annual rate of basic pay.

(C) The amount of the limitation that is applicable for a

calendar year under section 5307(a)(1) of title 5, United States

Code.

(2) An employee appointed under subsection (b)(1) is not eligible for any bonus, monetary award, or other monetary incentive for

service except for payments authorized under subsection (b)(3).

(e) PERIOD OF PROGRAM.—(1) The period for carrying out the

program authorized under this section begins on October 17, 1998,

and ends on September 30, 2008.

(2) After the termination of the program—

(A) no appointment may be made under paragraph (1) of

subsection (b);

(B) a rate of basic pay prescribed under paragraph (2) of

that subsection may not take effect for a position; and

(C) no period of service may be extended under subsection

(c)(2).

(f ) SAVINGS PROVISIONS.—In the case of an employee who, on

the last day of the program period specified in subsection (e)(1), is

serving in a position pursuant to an appointment under subsection

(b)(1)—

(1) the termination of the program does not terminate the

employee’s employment in that position before the expiration of

the lesser of—

(A) the period for which the employee was appointed;

or

(B) the period to which the employee’s service is limited under subsection (c), including any extension made

under paragraph (2) of that subsection before the termination of the program; and

(2) the rate of basic pay prescribed for the position under

subsection (b)(2) may not be reduced for so long (within the period applicable to the employee under paragraph (1)) as the

employee continues to serve in the position without a break in

service.

(g) ANNUAL REPORT.—(1) Not later than October 15 of each

year, beginning in 1999 and ending in 2009, the Secretary of Defense shall submit a report on the program to the Committee on

Armed Services of the Senate and the Committee on Armed Services of the House of Representatives. The report submitted in a
977 Sec. 1101 EXPERIMENTAL PERSONNEL PROGRAM

year shall cover the 12-month period ending on the day before the

anniversary, in that year, of the date of the enactment of this Act.

(2) The annual report shall contain, for the period covered by

the report, the following:

(A) A detailed discussion of the exercise of authority under

this section.

(B) The sources from which individuals appointed under

subsection (b)(1) were recruited.

(C) The methodology used for identifying and selecting

such individuals.

(D) Any additional information that the Secretary considers helpful for assessing the utility of the authority under

this section.
978

1Section 924 of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106–

65; 113 Stat. 726; 10 U.S.C. 113 note) provides as follows:

SEC. 924. ADMINISTRATION OF DEFENSE REFORM INITIATIVE ENTERPRISE PROGRAM FOR MILITARY MANPOWER AND PERSONNEL INFORMATION.

(a) EXECUTIVE AGENT.—The Secretary of Defense may designate the Secretary of the Navy

as the Department of Defense executive agent for carrying out the pilot program described in

subsection (c).

(b) IMPLEMENTING OFFICE.—If the Secretary of Defense makes the designation referred to in

subsection (a), the Secretary of the Navy, in carrying out that pilot program, shall act through

the head of the Systems Executive Office for Manpower and Personnel of the Department of

the Navy, who shall act in coordination with the Under Secretary of Defense for Personnel and

Readiness and the Chief Information Officer of the Department of Defense.

(c) PILOT PROGRAM.—The pilot program referred to in subsection (a) is the defense reform initiative enterprise pilot program for military manpower and personnel information established

pursuant to section 8147 of the Department of Defense Appropriations Act, 1999 (Public Law

105–262; 112 Stat. 2341; 10 U.S.C. 113 note).

7. DEFENSE REFORM INITIATIVE ENTERPRISE PROGRAM FOR MILITARY MANPOWER AND PERSONNEL

INFORMATION

Section 8147 of the Department of Defense Appropriations

Act, 1999

(Public Law 105–262, approved Oct. 17, 1998)

SEC. 8147. 1 ø10 U.S.C. 113 note¿ The Secretary of Defense

shall establish, through a revised Defense Integrated Military

Human Resources System (DIMHRS), a defense reform initiative

enterprise pilot program for military manpower and personnel information: Provided, That this pilot program should include all

functions and systems currently included in DIMHRS and shall be

expanded to include all appropriate systems within the enterprise

of personnel, manpower, training, and compensation: Provided further, That in establishing a revised DIMHRS enterprise program

for manpower and personnel information superiority the functions

of this program shall include, but not be limited to: (1) an analysis

and determination of the number and kinds of information systems

necessary to support manpower and personnel within the Department of Defense; and (2) the establishment of programs to develop

and implement information systems in support of manpower and

personnel to include an enterprise level strategic approach, performance and results based management, business process improvement and other non-material solutions, the use of commercial

or government off-the-shelf technology, the use of modular contracting as defined by Public Law 104–106, and the integration and

consolidation of existing manpower and personnel information systems: Provided further, That the Secretary of Defense shall reinstate fulfillment standards designated as ADS–97–03–GD, dated

January, 1997: Provided further, That the requirements of this sec-
979 Sec. 8147 MILITARY MANPOWER AND PERSONNEL REFORM

tion should be implemented not later than 6 months after the date

of the enactment of this Act.
980

1The table of contents has been added for the convenience of the reader.

8. TROOPS-TO-TEACHERS PROGRAM

Chapter A, Subpart I, Part C of Title II of the Elementary

and Secondary Education Act of 1965

PART C—INNOVATION FOR TEACHER QUALITY

Subpart 1—Transitions to Teaching

CHAPTER A—TROOPS-TO-TEACHERS PROGRAM 1

* * * * * * *

Sec. 2301. Definitions.

Sec. 2302. Authorization of troops-to-teachers program.

Sec. 2303. Recruitment and selection of program participants.

Sec. 2304. Participation agreement and financial assistance.

Sec. 2305. Participation by States.

Sec. 2306. Support of innovative preretirement teacher certification programs.

Sec. 2307. Reporting requirements.

* * * * * * *

SEC. 2301. ø20 U.S.C. 6671¿ DEFINITIONS.

In this chapter:

(1) ARMED FORCES.—The term ‘‘Armed Forces’’ means the

Army, Navy, Air Force, Marine Corps, and Coast Guard.

(2) MEMBER OF THE ARMED FORCES.—The term ‘‘member of

the Armed Forces’’ includes a former member of the Armed

Forces.

(3) PROGRAM.—The term ‘‘Program’’ means the Troops-toTeachers Program authorized by this chapter.

(4) RESERVE COMPONENT.—The term ‘‘reserve component’’

means—

(A) the Army National Guard of the United States;

(B) the Army Reserve;

(C) the Naval Reserve;

(D) the Marine Corps Reserve;

(E) the Air National Guard of the United States;

(F) the Air Force Reserve; and

(G) the Coast Guard Reserve.

(5) SECRETARY CONCERNED.—The term ‘‘Secretary concerned’’ means—

(A) the Secretary of the Army, with respect to matters

concerning a reserve component of the Army;

(B) the Secretary of the Navy, with respect to matters

concerning reserve components named in subparagraphs

(C) and (D) of paragraph (4);
981 Sec. 2302 TROOPS-TO-TEACHERS PROGRAM

(C) the Secretary of the Air Force, with respect to matters concerning a reserve component of the Air Force; and

(D) the Secretary of Homeland Security, with respect

to matters concerning the Coast Guard Reserve.

SEC. 2302. ø20 U.S.C. 6672¿ AUTHORIZATION OF TROOPS-TO-TEACHERS

PROGRAM.

(a) PURPOSE.—The purpose of this section is to authorize a

mechanism for the funding and administration of the Troops-toTeachers Program, which was originally established by the Troopsto-Teachers Program Act of 1999 (title XVII of the National Defense Authorization Act for Fiscal Year 2000) (20 U.S.C. 9301 et

seq.).

(b) PROGRAM AUTHORIZED.—The Secretary may carry out a

program (to be known as the ‘‘Troops-to-Teachers Program’’)—

(1) to assist eligible members of the Armed Forces described in section 2303 to obtain certification or licensing as elementary school teachers, secondary school teachers, or vocational or technical teachers, and to become highly qualified

teachers; and

(2) to facilitate the employment of such members—

(A) by local educational agencies or public charter

schools that the Secretary identifies as—

(i) receiving grants under part A of title I as a result of having within their jurisdictions concentrations

of children from low-income families; or

(ii) experiencing a shortage of highly qualified

teachers, in particular a shortage of science, mathematics, special education, or vocational or technical

teachers; and

(B) in elementary schools or secondary schools, or as

vocational or technical teachers.

(c) ADMINISTRATION OF PROGRAM.—The Secretary shall enter

into a memorandum of agreement with the Secretary of Defense

under which the Secretary of Defense, acting through the Defense

Activity for Non-Traditional Education Support of the Department

of Defense, will perform the actual administration of the Program,

other than section 2306. Using funds appropriated to the Secretary

to carry out this chapter, the Secretary shall transfer to the Secretary of Defense such amounts as may be necessary to administer

the Program pursuant to the memorandum of agreement.

(d) INFORMATION REGARDING PROGRAM.—The Secretary shall

provide to the Secretary of Defense information regarding the Program and applications to participate in the Program, for distribution as part of preseparation counseling provided under section

1142 of title 10, United States Code, to members of the Armed

Forces described in section 2303.

(e) PLACEMENT ASSISTANCE AND REFERRAL SERVICES.—The

Secretary may, with the agreement of the Secretary of Defense,

provide placement assistance and referral services to members of

the Armed Forces who meet the criteria described in section 2303,

including meeting education qualification requirements under subsection 2303(c)(2). Such members shall not be eligible for financial

assistance under subsections (c) and (d) of section 2304.
Sec. 2303 TROOPS-TO-TEACHERS PROGRAM 982

SEC. 2303. ø20 U.S.C. 6673¿ RECRUITMENT AND SELECTION OF PROGRAM PARTICIPANTS.

(a) ELIGIBLE MEMBERS.—The following members of the Armed

Forces are eligible for selection to participate in the Program:

(1) Any member who—

(A) on or after October 1, 1999, becomes entitled to retired or retainer pay in the manner provided in title 10 or

title 14, United States Code;

(B) has an approved date of retirement that is within

1 year after the date on which the member submits an application to participate in the Program; or

(C) has been transferred to the Retired Reserve.

(2) Any member who, on or after the date of enactment of

the No Child Left Behind Act of 2001—

(A)(i) is separated or released from active duty after 6

or more years of continuous active duty immediately before

the separation or release; or

(ii) has completed a total of at least 10 years of active

duty service, 10 years of service computed under section

12732 of title 10, United States Code, or 10 years of any

combination of such service; and

(B) executes a reserve commitment agreement for a

period of not less than 3 years under subsection (e)(2).

(3) Any member who, on or after the date of enactment of

the No Child Left Behind Act of 2001, is retired or separated

for physical disability under chapter 61 of title 10, United

States Code.

(4) Any member who—

(A) during the period beginning on October 1, 1990,

and ending on September 30, 1999, was involuntarily discharged or released from active duty for purposes of a reduction of force after 6 or more years of continuous active

duty immediately before the discharge or release; or

(B) applied for the teacher placement program administered under section 1151 of title 10, United States Code,

before the repeal of that section, and satisfied the eligibility criteria specified in subsection (c) of such section

1151.

(b) SUBMISSION OF APPLICATIONS.—

(1) FORM AND SUBMISSION.—Selection of eligible members

of the Armed Forces to participate in the Program shall be

made on the basis of applications submitted to the Secretary

within the time periods specified in paragraph (2). An application shall be in such form and contain such information as the

Secretary may require.

(2) TIME FOR SUBMISSION.—An application shall be considered to be submitted on a timely basis under paragraph (1) if—

(A) in the case of a member described in paragraph

(1)(A), (2), or (3) of subsection (a), the application is submitted not later than 4 years after the date on which the

member is retired or separated or released from active

duty, whichever applies to the member; or
983 Sec. 2303 TROOPS-TO-TEACHERS PROGRAM

1So in law. The matter following subparagraph (B), as amended by section 201 or Public Law

107–110 (115 Stat. 1650), should probably read ‘‘(i) to have...’’.

(B) in the case of a member described in subsection

(a)(4), the application is submitted not later than September 30, 2003.

(c) SELECTION CRITERIA.—

(1) ESTABLISHMENT.—Subject to paragraphs (2) and (3),

the Secretary shall prescribe the criteria to be used to select

eligible members of the Armed Forces to participate in the Program.

(2) EDUCATIONAL BACKGROUND.—

(A) ELEMENTARY OR SECONDARY SCHOOL TEACHER.—If

a member of the Armed Forces described in paragraph (1),

(2), or (3) of subsection (a) is applying for assistance for

placement as an elementary school or secondary school

teacher, the Secretary shall require the member to have

received a baccalaureate or advanced degree from an accredited institution of higher education.

(B) VOCATIONAL OR TECHNICAL TEACHER.—If a member

of the Armed Forces described in paragraph (1), (2), or (3)

of subsection (a) is applying for assistance for placement as

a vocational or technical teacher, the Secretary shall require the member—

ave received 1 the equivalent of 1 year of college

from an accredited institution of higher education and

have 6 or more years of military experience in a vocational or technical field; or

(ii) to otherwise meet the certification or licensing

requirements for a vocational or technical teacher in

the State in which the member seeks assistance for

placement under the Program.

(3) HONORABLE SERVICE.—A member of the Armed Forces

is eligible to participate in the Program only if the member’s

last period of service in the Armed Forces was honorable, as

characterized by the Secretary concerned (as defined in section

101(a)(9) of title 10, United States Code). A member selected

to participate in the Program before the retirement of the

member or the separation or release of the member from active

duty may continue to participate in the Program after the retirement, separation, or release only if the member’s last period of service is characterized as honorable by the Secretary

concerned (as so defined).

(d) SELECTION PRIORITIES.—In selecting eligible members of

the Armed Forces to receive assistance under the Program, the Secretary shall give priority to members who have educational or military experience in science, mathematics, special education, or vocational or technical subjects and agree to seek employment as

science, mathematics, or special education teachers in elementary

schools or secondary schools or in other schools under the jurisdiction of a local educational agency.

(e) OTHER CONDITIONS ON SELECTION.— (1) SELECTION SUBJECT TO FUNDING.—The Secretary may

not select an eligible member of the Armed Forces to partici-
Sec. 2304 TROOPS-TO-TEACHERS PROGRAM 984

pate in the Program under this section and receive financial

assistance under section 2304 unless the Secretary has sufficient appropriations for the Program available at the time of

the selection to satisfy the obligations to be incurred by the

United States under section 2304 with respect to the member.

(2) RESERVE COMMITMENT AGREEMENT.—The Secretary

may not select an eligible member of the Armed Forces described in subsection (a)(2)(A) to participate in the Program

under this section and receive financial assistance under section 2304 unless—

(A) the Secretary notifies the Secretary concerned and

the member that the Secretary has reserved a full stipend

or bonus under section 2304 for the member; and

(B) the member executes a written agreement with the

Secretary concerned to serve as a member of the Selected

Reserve of a reserve component of the Armed Forces for a

period of not less than 3 years (in addition to any other reserve commitment the member may have).

SEC. 2304. ø20 U.S.C. 6674¿ PARTICIPATION AGREEMENT AND FINANCIAL ASSISTANCE.

(a) PARTICIPATION AGREEMENT.—

(1) IN GENERAL.—An eligible member of the Armed Forces

selected to participate in the Program under section 2303 and

receive financial assistance under this section shall be required

to enter into an agreement with the Secretary in which the

member agrees—

(A) within such time as the Secretary may require, to

obtain certification or licensing as an elementary school

teacher, secondary school teacher, or vocational or technical teacher, and to become a highly qualified teacher;

and

(B) to accept an offer of full-time employment as an elementary school teacher, secondary school teacher, or vocational or technical teacher for not less than 3 school years

with a high-need local educational agency or public charter

school, as such terms are defined in section 2101, to begin

the school year after obtaining that certification or licensing.

(2) WAIVER.—The Secretary may waive the 3-year commitment described in paragraph (1)(B) for a participant if the Secretary determines such waiver to be appropriate. If the Secretary provides the waiver, the participant shall not be considered to be in violation of the agreement and shall not be required to provide reimbursement under subsection (f), for failure to meet the 3-year commitment.

(b) VIOLATION OF PARTICIPATION AGREEMENT; EXCEPTIONS.—A

participant in the Program shall not be considered to be in violation of the participation agreement entered into under subsection

(a) during any period in which the participant—

(1) is pursuing a full-time course of study related to the

field of teaching at an institution of higher education;

(2) is serving on active duty as a member of the Armed

Forces;
985 Sec. 2304 TROOPS-TO-TEACHERS PROGRAM

(3) is temporarily totally disabled for a period of time not

to exceed 3 years as established by sworn affidavit of a qualified physician;

(4) is unable to secure employment for a period not to exceed 12 months by reason of the care required by a spouse who

is disabled;

(5) is a highly qualified teacher who is seeking and unable

to find full-time employment as a teacher in an elementary

school or secondary school or as a vocational or technical teacher for a single period not to exceed 27 months; or

(6) satisfies the provisions of additional reimbursement exceptions that may be prescribed by the Secretary.

(c) STIPEND FOR PARTICIPANTS.—

(1) STIPEND AUTHORIZED.—Subject to paragraph (2), the

Secretary may pay to a participant in the Program selected

under section 2303 a stipend in an amount of not more than

$5,000.

(2) LIMITATION.—The total number of stipends that may be

paid under paragraph (1) in any fiscal year may not exceed

5,000.

(d) BONUS FOR PARTICIPANTS.—

(1) BONUS AUTHORIZED.—Subject to paragraph (2), the Secretary may, in lieu of paying a stipend under subsection (c),

pay a bonus of $10,000 to a participant in the Program selected

under section 2303 who agrees in the participation agreement

under subsection (a) to become a highly qualified teacher and

to accept full-time employment as an elementary school teacher, secondary school teacher, or vocational or technical teacher

for not less than 3 school years in a high-need school.

(2) LIMITATION.—The total number of bonuses that may be

paid under paragraph (1) in any fiscal year may not exceed

3,000.

(3) HIGH-NEED SCHOOL DEFINED.—In this subsection, the

term ‘‘high-need school’’ means a public elementary school,

public secondary school, or public charter school that meets one

or more of the following criteria:

(A) LOW-INCOME CHILDREN.—At least 50 percent of the

students enrolled in the school were from low-income families (as described in section 2302(b)(2)(A)(i)).

(B) CHILDREN WITH DISABILITIES.—The school has a

large percentage of students who qualify for assistance

under part B of the Individuals with Disabilities Education

Act.

(e) TREATMENT OF STIPEND AND BONUS.—A stipend or bonus

paid under this section to a participant in the Program shall be

taken into account in determining the eligibility of the participant

for Federal student financial assistance provided under title IV of

the Higher Education Act of 1965.

(f) REIMBURSEMENT UNDER CERTAIN CIRCUMSTANCES.—

(1) REIMBURSEMENT REQUIRED.—A participant in the Program who is paid a stipend or bonus under this section shall

be required to repay the stipend or bonus under the following

circumstances:
Sec. 2305 TROOPS-TO-TEACHERS PROGRAM 986

(A) FAILURE TO OBTAIN QUALIFICATIONS OR EMPLOYMENT.—The participant fails to obtain teacher certification

or licensing, to become a highly qualified teacher, or to obtain employment as an elementary school teacher, secondary school teacher, or vocational or technical teacher as

required by the participation agreement under subsection

(a).

(B) TERMINATION OF EMPLOYMENT.—The participant

voluntarily leaves, or is terminated for cause from, employment as an elementary school teacher, secondary school

teacher, or vocational or technical teacher during the 3

years of required service in violation of the participation

agreement.

(C) FAILURE TO COMPLETE SERVICE UNDER RESERVE

COMMITMENT AGREEMENT.—The participant executed a

written agreement with the Secretary concerned under

section 2303(e)(2) to serve as a member of a reserve component of the Armed Forces for a period of 3 years and

fails to complete the required term of service.

(2) AMOUNT OF REIMBURSEMENT.—A participant required

to reimburse the Secretary for a stipend or bonus paid to the

participant under this section shall pay an amount that bears

the same ratio to the amount of the stipend or bonus as the

unserved portion of required service bears to the 3 years of required service. Any amount owed by the participant shall bear

interest at the rate equal to the highest rate being paid by the

United States on the day on which the reimbursement is determined to be due for securities having maturities of 90 days or

less and shall accrue from the day on which the participant is

first notified of the amount due.

(3) TREATMENT OF OBLIGATION.—The obligation to reimburse the Secretary under this subsection is, for all purposes,

a debt owing the United States. A discharge in bankruptcy

under title 11, United States Code, shall not release a participant from the obligation to reimburse the Secretary under this

subsection.

(4) EXCEPTIONS TO REIMBURSEMENT REQUIREMENT.—A participant shall be excused from reimbursement under this subsection if the participant becomes permanently totally disabled

as established by sworn affidavit of a qualified physician. The

Secretary may also waive the reimbursement in cases of extreme hardship to the participant, as determined by the Secretary.

(g) RELATIONSHIP TO EDUCATIONAL ASSISTANCE UNDER MONTGOMERY GI BILL.—The receipt by a participant in the Program of

a stipend or bonus under this section shall not reduce or otherwise

affect the entitlement of the participant to any benefits under chapter 30 of title 38, United States Code, or chapter 1606 of title 10,

United States Code.

SEC. 2305. ø20 U.S.C. 6675¿ PARTICIPATION BY STATES.

(a) DISCHARGE OF STATE ACTIVITIES THROUGH CONSORTIA OF

STATES.—The Secretary may permit States participating in the
987 Sec. 2306 TROOPS-TO-TEACHERS PROGRAM

Program to carry out activities authorized for such States under

the Program through one or more consortia of such States.

(b) ASSISTANCE TO STATES.— (1) GRANTS AUTHORIZED.—Subject to paragraph (2), the

Secretary may make grants to States participating in the Program, or to consortia of such States, in order to permit such

States or consortia of States to operate offices for purposes of

recruiting eligible members of the Armed Forces for participation in the Program and facilitating the employment of participants in the Program as elementary school teachers, secondary

school teachers, and vocational or technical teachers.

(2) LIMITATION.—The total amount of grants made under paragraph (1) in any fiscal year may not exceed $5,000,000.

SEC. 2306. ø20 U.S.C. 6676¿ SUPPORT OF INNOVATIVE PRERETIREMENT

TEACHER CERTIFICATION PROGRAMS.

(a) PURPOSE.—The purpose of this section is to provide funding

to develop, implement, and demonstrate teacher certification programs.

(b) DEVELOPMENT, IMPLEMENTATION AND DEMONSTRATION.— The Secretary may enter into a memorandum of agreement with a

State educational agency, an institution of higher education, or a

consortia of State educational agencies or institutions of higher

education, to develop, implement, and demonstrate teacher certification programs for members of the Armed Forces described in section 2303(a)(1)(B) for the purpose of assisting such members to consider and prepare for a career as a highly qualified elementary

school teacher, secondary school teacher, or vocational or technical

teacher upon retirement from the Armed Forces.

(c) PROGRAM ELEMENTS.—A teacher certification program

under subsection (b) shall—

(1) provide recognition of military experience and training

as related to certification or licensing requirements;

(2) provide courses of instruction that may be conducted on

or near a military installation;

(3) incorporate alternative approaches to achieve teacher

certification, such as innovative methods to gaining field-based

teaching experiences, and assessment of background and experience as related to skills, knowledge, and abilities required of

elementary school teachers, secondary school teachers, or vocational or technical teachers;

(4) provide for courses to be delivered via distance education methods; and

(5) address any additional requirements or specifications

established by the Secretary.

(d) APPLICATION PROCEDURES.—

(1) IN GENERAL.—A State educational agency or institution

of higher education (or a consortium of State educational agencies or institutions of higher education) that desires to enter

into a memorandum under subsection (b) shall prepare and

submit to the Secretary a proposal, at such time, in such manner, and containing such information as the Secretary may require, including an assurance that the State educational agency, institution, or consortium is operating a program leading to

State approved teacher certification.
Sec. 2307 TROOPS-TO-TEACHERS PROGRAM 988

(2) PREFERENCE.—The Secretary shall give preference to

State educational agencies, institutions, and consortia that

submit proposals that provide for cost sharing with respect to

the program involved.

(e) CONTINUATION OF PROGRAMS.—Upon successful completion

of the demonstration phase of teacher certification programs funded under this section, the continued operation of the teacher certification programs shall not be the responsibility of the Secretary. A

State educational agency, institution, or consortium that desires to

continue a program that is funded under this section after such

funding is terminated shall use amounts derived from tuition

charges to continue such program.

(f) FUNDING LIMITATION.—The total amount obligated by the

Secretary under this section for any fiscal year may not exceed

$10,000,000.

SEC. 2307. ø20 U.S.C. 6677¿ REPORTING REQUIREMENTS.

(a) REPORT REQUIRED.—Not later than March 31, 2006, the

Secretary (in consultation with the Secretary of Defense and the

Secretary of Homeland Security) and the Comptroller General of

the United States shall submit to Congress a report on the effectiveness of the Program in the recruitment and retention of qualified personnel by local educational agencies and public charter

schools.

(b) ELEMENTS OF REPORT.—The report submitted under subsection (a) shall include information on the following:

(1) The number of participants in the Program.

(2) The schools in which the participants are employed.

(3) The grade levels at which the participants teach.

(4) The academic subjects taught by the participants.

(5) The rates of retention of the participants by the local

educational agencies and public charter schools employing the

participants.

(6) Such other matters as the Secretary or the Comptroller

General of the United States, as the case may be, considers to

be appropriate.
989

9. PILOT PROGRAM FOR REENGINEERING THE EQUAL

EMPLOYMENT OPPORTUNITY COMPLAINT PROCESS

Section 1111 of the Floyd D. Spence National Defense

Authorization Act for Fiscal Year 2001

(as enacted into law by Public Law 106–398, approved Oct. 30, 2000)

SEC. 1111. ø10 U.S.C. 113 note¿ PILOT PROGRAM FOR REENGINEERING

THE EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT

PROCESS.

(a) PILOT PROGRAM.—(1) The Secretary of Defense shall carry

out a pilot program to improve processes for the resolution of equal

employment opportunity complaints by civilian employees of the

Department of Defense. Complaints processed under the pilot program shall be subject to the procedural requirements established

for the pilot program and shall not be subject to the procedural requirements of part 1614 of title 29 of the Code of Federal Regulations or other regulations, directives, or regulatory restrictions prescribed by the Equal Employment Opportunity Commission.

(2) The pilot program shall include procedures to reduce processing time and eliminate redundancy with respect to processes for

the resolution of equal employment opportunity complaints, reinforce local management and chain-of-command accountability, and

provide the parties involved with early opportunity for resolution.

(3) The Secretary may carry out the pilot program for a period

of three years, beginning on January 1, 2001.

(4)(A) Participation in the pilot program shall be voluntary on

the part of the complainant. Complainants who participate in the

pilot program shall retain the right to appeal a final agency decision to the Equal Employment Opportunity Commission and to file

suit in district court. The Equal Employment Opportunity Commission shall not reverse a final agency decision on the grounds that

the agency did not comply with the regulatory requirements promulgated by the Commission.

(B) Subparagraph (A) shall apply to all cases—

(i) pending as of January 1, 2001, before the Equal Employment Opportunity Commission involving a civilian employee who filed a complaint under the pilot program of the

Department of the Navy to improve processes for the resolution

of equal employment opportunity complaints; and

(ii) hereinafter filed with the Commission under the pilot

program established by this section.

(5) The pilot program shall be carried out in at least one military department and two Defense Agencies.

(b) REPORT.—Not later than 90 days following the end of the

first and last full or partial fiscal years during which the pilot program is implemented, the Comptroller General shall submit to
Sec. 1111 REENGINEERING EEOC PROCESS 990

Congress a report on the pilot program. Such report shall contain

the following:

(1) A description of the processes tested by the pilot program.

(2) The results of such testing.

(3) Recommendations for changes to the processes for the

resolution of equal employment opportunity complaints as a result of such pilot program.

(4) A comparison of the processes used, and results obtained, under the pilot program to traditional and alternative

dispute resolution processes used in the government or private

industry.
991

1The table of contents has been added for the convenience of the reader.

10. AMERICAN SERVICEMEMBERS’ PROTECTION ACT OF

2002

(Title II of Public Law 107–206, approved Aug. 2, 2002)

TITLE II—AMERICAN SERVICE-MEMBERS’ PROTECTION ACT

SEC. 2001. ø22 U.S.C. 7401 note¿ SHORT TITLE. 1

This title may be cited as the ‘‘American Servicemembers’ Protection Act of 2002’’.

* * * * * * *

TITLE II—AMERICAN SERVICE-MEMBERS’ PROTECTION ACT

Sec. 2001. Short title.

Sec. 2002. Findings.

Sec. 2003. Waiver and termination of prohibitions of this title.

Sec. 2004. Prohibition on cooperation with the International Criminal Court.

Sec. 2005. Restriction on United States participation in certain United Nations

peacekeeping operations.

Sec. 2006. Prohibition on direct or indirect transfer of classified national security

information and law enforcement information to the International

Criminal Court.

Sec. 2007. Prohibition of United States military assistance to parties to the International Criminal Court.

Sec. 2008. Authority to free members of the Armed Forces of the United States and

certain other persons detained or imprisoned by or on behalf of the

International Criminal Court.

Sec. 2009. Alliance command arrangements.

Sec. 2010. Withholdings.

Sec. 2011. Application of sections 2004 and 2006 to exercise of constitutional authorities.

Sec. 2012. Nondelegation.

Sec. 2013. Definitions.

Sec. 2014. Repeal of limitation.

Sec. 2015. Assistance to international efforts.

* * * * * * *

SEC. 2002. ø22 U.S.C. 7421¿ FINDINGS.

Congress makes the following findings:

(1) On July 17, 1998, the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, meeting in Rome, Italy, adopted the

‘‘Rome Statute of the International Criminal Court’’. The vote

on whether to proceed with the statute was 120 in favor to 7

against, with 21 countries abstaining. The United States voted

against final adoption of the Rome Statute.

(2) As of April 30, 2001, 139 countries had signed the

Rome Statute and 30 had ratified it. Pursuant to Article 126

of the Rome Statute, the statute will enter into force on the

first day of the month after the 60th day following the date on

which the 60th country deposits an instrument ratifying the
Sec. 2002 AMERICAN SERVICEMEMBERS’ PROTECTION 992

which the 60th country deposits an instrument ratifying the

statute.

(3) Since adoption of the Rome Statute, a Preparatory

Commission for the International Criminal Court has met regularly to draft documents to implement the Rome Statute, including Rules of Procedure and Evidence, Elements of Crimes,

and a definition of the Crime of Aggression.

(4) During testimony before the Congress following the

adoption of the Rome Statute, the lead United States negotiator, Ambassador David Scheffer stated that the United

States could not sign the Rome Statute because certain critical

negotiating objectives of the United States had not been

achieved. As a result, he stated: ‘‘We are left with consequences that do not serve the cause of international justice.’’.

(5) Ambassador Scheffer went on to tell the Congress that:

‘‘Multinational peacekeeping forces operating in a country that

has joined the treaty can be exposed to the Court’s jurisdiction

even if the country of the individual peacekeeper has not joined

the treaty. Thus, the treaty purports to establish an arrangement whereby United States armed forces operating overseas

could be conceivably prosecuted by the international court even

if the United States has not agreed to be bound by the treaty.

Not only is this contrary to the most fundamental principles of

treaty law, it could inhibit the ability of the United States to

use its military to meet alliance obligations and participate in

multinational operations, including humanitarian interventions to save civilian lives. Other contributors to peacekeeping

operations will be similarly exposed.’’.

(6) Notwithstanding these concerns, President Clinton directed that the United States sign the Rome Statute on December 31, 2000. In a statement issued that day, he stated that

in view of the unremedied deficiencies of the Rome Statute, ‘‘I

will not, and do not recommend that my successor submit the

Treaty to the Senate for advice and consent until our fundamental concerns are satisfied’’.

(7) Any American prosecuted by the International Criminal Court will, under the Rome Statute, be denied procedural

protections to which all Americans are entitled under the Bill

of Rights to the United States Constitution, such as the right

to trial by jury.

(8) Members of the Armed Forces of the United States

should be free from the risk of prosecution by the International

Criminal Court, especially when they are stationed or deployed

around the world to protect the vital national interests of the

United States. The United States Government has an obligation to protect the members of its Armed Forces, to the maximum extent possible, against criminal prosecutions carried

out by the International Criminal Court.

(9) In addition to exposing members of the Armed Forces

of the United States to the risk of international criminal prosecution, the Rome Statute creates a risk that the President

and other senior elected and appointed officials of the United

States Government may be prosecuted by the International

Criminal Court. Particularly if the Preparatory Commission
993 Sec. 2003 AMERICAN SERVICEMEMBERS’ PROTECTION

agrees on a definition of the Crime of Aggression over United

States objections, senior United States officials may be at risk

of criminal prosecution for national security decisions involving

such matters as responding to acts of terrorism, preventing the

proliferation of weapons of mass destruction, and deterring aggression. No less than members of the Armed Forces of the

United States, senior officials of the United States Government

should be free from the risk of prosecution by the International

Criminal Court, especially with respect to official actions taken

by them to protect the national interests of the United States.

(10) Any agreement within the Preparatory Commission on

a definition of the Crime of Aggression that usurps the prerogative of the United Nations Security Council under Article 39

of the charter of the United Nations to ‘‘determine the existence of any . . . . act of aggression’’ would contravene the charter of the United Nations and undermine deterrence.

(11) It is a fundamental principle of international law that

a treaty is binding upon its parties only and that it does not

create obligations for nonparties without their consent to be

bound. The United States is not a party to the Rome Statute

and will not be bound by any of its terms. The United States

will not recognize the jurisdiction of the International Criminal

Court over United States nationals.

SEC. 2003. ø22 U.S.C. 7422¿ WAIVER AND TERMINATION OF PROHIBITIONS OF THIS TITLE.

(a) AUTHORITY TO INITIALLY WAIVE SECTIONS 5 AND 7.—The

President is authorized to waive the prohibitions and requirements

of sections 2005 and 2007 for a single period of 1 year. A waiver

under this subsection may be issued only if the President at least

15 days in advance of exercising such authority—

(1) notifies the appropriate congressional committees of the

intention to exercise such authority; and

(2) determines and reports to the appropriate congressional committees that the International Criminal Court has

entered into a binding agreement that—

(A) prohibits the International Criminal Court from

seeking to exercise jurisdiction over the following persons

with respect to actions undertaken by them in an official

capacity:

(i) covered United States persons;

(ii) covered allied persons; and

(iii) individuals who were covered United States

persons or covered allied persons; and

(B) ensures that no person described in subparagraph

(A) will be arrested, detained, prosecuted, or imprisoned by

or on behalf of the International Criminal Court.

(b) AUTHORITY TO EXTEND WAIVER OF SECTIONS 5 AND 7.—The

President is authorized to waive the prohibitions and requirements

of sections 2005 and 2007 for successive periods of 1 year each

upon the expiration of a previous waiver pursuant to subsection (a)

or this subsection. A waiver under this subsection may be issued

only if the President at least 15 days in advance of exercising such

authority—
Sec. 2003 AMERICAN SERVICEMEMBERS’ PROTECTION 994

(1) notifies the appropriate congressional committees of the

intention to exercise such authority; and

(2) determines and reports to the appropriate congressional committees that the International Criminal Court—

(A) remains party to, and has continued to abide by,

a binding agreement that—

(i) prohibits the International Criminal Court

from seeking to exercise jurisdiction over the following

persons with respect to actions undertaken by them in

an official capacity:

(I) covered United States persons;

(II) covered allied persons; and

(III) individuals who were covered United

States persons or covered allied persons; and

(ii) ensures that no person described in clause (i)

will be arrested, detained, prosecuted, or imprisoned

by or on behalf of the International Criminal Court;

and

(B) has taken no steps to arrest, detain, prosecute, or

imprison any person described in clause (i) of subparagraph (A).

(c) AUTHORITY TO WAIVE SECTIONS 4 AND 6 WITH RESPECT TO

AN INVESTIGATION OR PROSECUTION OF A NAMED INDIVIDUAL.—The

President is authorized to waive the prohibitions and requirements

of sections 2004 and 2006 to the degree such prohibitions and requirements would prevent United States cooperation with an investigation or prosecution of a named individual by the International

Criminal Court. A waiver under this subsection may be issued only

if the President at least 15 days in advance of exercising such

authority—

(1) notifies the appropriate congressional committees of the

intention to exercise such authority; and

(2) determines and reports to the appropriate congressional committees that—

(A) a waiver pursuant to subsection (a) or (b) of the

prohibitions and requirements of sections 2005 and 2007 is

in effect;

(B) there is reason to believe that the named individual committed the crime or crimes that are the subject

of the International Criminal Court’s investigation or prosecution;

(C) it is in the national interest of the United States

for the International Criminal Court’s investigation or

prosecution of the named individual to proceed; and

(D) in investigating events related to actions by the

named individual, none of the following persons will be investigated, arrested, detained, prosecuted, or imprisoned

by or on behalf of the International Criminal Court with

respect to actions undertaken by them in an official capacity:

(i) Covered United States persons.

(ii) Covered allied persons.

(iii) Individuals who were covered United States

persons or covered allied persons.
995 Sec. 2004 AMERICAN SERVICEMEMBERS’ PROTECTION

(d) TERMINATION OF WAIVER PURSUANT TO SUBSECTION (c).—

Any waiver or waivers exercised pursuant to subsection (c) of the

prohibitions and requirements of sections 2004 and 2006 shall terminate at any time that a waiver pursuant to subsection (a) or (b)

of the prohibitions and requirements of sections 2005 and 2007 expires and is not extended pursuant to subsection (b).

(e) TERMINATION OF PROHIBITIONS OF THIS TITLE.—The prohibitions and requirements of sections 2004, 2005, 2006, and 2007

shall cease to apply, and the authority of section 2008 shall terminate, if the United States becomes a party to the International

Criminal Court pursuant to a treaty made under article II, section

2, clause 2 of the Constitution of the United States.

SEC. 2004. ø22 U.S.C. 7423¿ PROHIBITION ON COOPERATION WITH THE

INTERNATIONAL CRIMINAL COURT.

(a) APPLICATION.—The provisions of this section—

(1) apply only to cooperation with the International Criminal Court and shall not apply to cooperation with an ad hoc

international criminal tribunal established by the United Nations Security Council before or after the date of the enactment

of this Act to investigate and prosecute war crimes committed

in a specific country or during a specific conflict; and

(2) shall not prohibit—

(A) any action permitted under section 2008; or

(B) communication by the United States of its policy

with respect to a matter.

(b) PROHIBITION ON RESPONDING TO REQUESTS FOR COOPERA- TION.—Notwithstanding section 1782 of title 28, United States

Code, or any other provision of law, no United States Court, and

no agency or entity of any State or local government, including any

court, may cooperate with the International Criminal Court in response to a request for cooperation submitted by the International

Criminal Court pursuant to the Rome Statute.

(c) PROHIBITION ON TRANSMITTAL OF LETTERS ROGATORY FROM

THE INTERNATIONAL CRIMINAL COURT.—Notwithstanding section

1781 of title 28, United States Code, or any other provision of law,

no agency of the United States Government may transmit for execution any letter rogatory issued, or other request for cooperation

made, by the International Criminal Court to the tribunal, officer,

or agency in the United States to whom it is addressed.

(d) PROHIBITION ON EXTRADITION TO THE INTERNATIONAL

CRIMINAL COURT.—Notwithstanding any other provision of law, no

agency or entity of the United States Government or of any State

or local government may extradite any person from the United

States to the International Criminal Court, nor support the transfer of any United States citizen or permanent resident alien to the

International Criminal Court.

(e) PROHIBITION ON PROVISION OF SUPPORT TO THE INTERNATIONAL CRIMINAL COURT.—Notwithstanding any other provision

of law, no agency or entity of the United States Government or of

any State or local government, including any court, may provide

support to the International Criminal Court.

(f) PROHIBITION ON USE OF APPROPRIATED FUNDS TO ASSIST

THE INTERNATIONAL CRIMINAL COURT.—Notwithstanding any other

provision of law, no funds appropriated under any provision of law
Sec. 2005 AMERICAN SERVICEMEMBERS’ PROTECTION 996

may be used for the purpose of assisting the investigation, arrest,

detention, extradition, or prosecution of any United States citizen

or permanent resident alien by the International Criminal Court.

(g) RESTRICTION ON ASSISTANCE PURSUANT TO MUTUAL LEGAL

ASSISTANCE TREATIES.—The United States shall exercise its rights

to limit the use of assistance provided under all treaties and executive agreements for mutual legal assistance in criminal matters,

multilateral conventions with legal assistance provisions, and extradition treaties, to which the United States is a party, and in

connection with the execution or issuance of any letter rogatory, to

prevent the transfer to, or other use by, the International Criminal

Court of any assistance provided by the United States under such

treaties and letters rogatory.

(h) PROHIBITION ON INVESTIGATIVE ACTIVITIES OF AGENTS.—No

agent of the International Criminal Court may conduct, in the

United States or any territory subject to the jurisdiction of the

United States, any investigative activity relating to a preliminary

inquiry, investigation, prosecution, or other proceeding at the International Criminal Court.

SEC. 2005. ø22 U.S.C. 7424¿ RESTRICTION ON UNITED STATES PARTICIPATION IN CERTAIN UNITED NATIONS PEACEKEEPING

OPERATIONS.

(a) POLICY.—Effective beginning on the date on which the

Rome Statute enters into force pursuant to Article 126 of the Rome

Statute, the President should use the voice and vote of the United

States in the United Nations Security Council to ensure that each

resolution of the Security Council authorizing any peacekeeping operation under chapter VI of the charter of the United Nations or

peace enforcement operation under chapter VII of the charter of

the United Nations permanently exempts, at a minimum, members

of the Armed Forces of the United States participating in such operation from criminal prosecution or other assertion of jurisdiction

by the International Criminal Court for actions undertaken by such

personnel in connection with the operation.

(b) RESTRICTION.—Members of the Armed Forces of the United

States may not participate in any peacekeeping operation under

chapter VI of the charter of the United Nations or peace enforcement operation under chapter VII of the charter of the United Nations, the creation of which is authorized by the United Nations Security Council on or after the date that the Rome Statute enters

into effect pursuant to Article 126 of the Rome Statute, unless the

President has submitted to the appropriate congressional committees a certification described in subsection (c) with respect to such

operation.

(c) CERTIFICATION.—The certification referred to in subsection

(b) is a certification by the President that—

(1) members of the Armed Forces of the United States are

able to participate in the peacekeeping or peace enforcement

operation without risk of criminal prosecution or other assertion of jurisdiction by the International Criminal Court because, in authorizing the operation, the United Nations Security Council permanently exempted, at a minimum, members

of the Armed Forces of the United States participating in the

operation from criminal prosecution or other assertion of juris-
997 Sec. 2007 AMERICAN SERVICEMEMBERS’ PROTECTION

diction by the International Criminal Court for actions undertaken by them in connection with the operation;

(2) members of the Armed Forces of the United States are

able to participate in the peacekeeping or peace enforcement

operation without risk of criminal prosecution or other assertion of jurisdiction by the International Criminal Court because each country in which members of the Armed Forces of

the United States participating in the operation will be present

either is not a party to the International Criminal Court and

has not invoked the jurisdiction of the International Criminal

Court pursuant to Article 12 of the Rome Statute, or has entered into an agreement in accordance with Article 98 of the

Rome Statute preventing the International Criminal Court

from proceeding against members of the Armed Forces of the

United States present in that country; or

(3) the national interests of the United States justify participation by members of the Armed Forces of the United

States in the peacekeeping or peace enforcement operation.

SEC. 2006. ø22 U.S.C. 7425¿ PROHIBITION ON DIRECT OR INDIRECT

TRANSFER OF CLASSIFIED NATIONAL SECURITY INFORMATION AND LAW ENFORCEMENT INFORMATION TO THE

INTERNATIONAL CRIMINAL COURT.

(a) IN GENERAL.—Not later than the date on which the Rome

Statute enters into force, the President shall ensure that appropriate procedures are in place to prevent the transfer of classified

national security information and law enforcement information to

the International Criminal Court for the purpose of facilitating an

investigation, apprehension, or prosecution.

(b) INDIRECT TRANSFER.—The procedures adopted pursuant to

subsection (a) shall be designed to prevent the transfer to the

United Nations and to the government of any country that is party

to the International Criminal Court of classified national security

information and law enforcement information that specifically relates to matters known to be under investigation or prosecution by

the International Criminal Court, except to the degree that satisfactory assurances are received from the United Nations or that

government, as the case may be, that such information will not be

made available to the International Criminal Court for the purpose

of facilitating an investigation, apprehension, or prosecution.

(c) CONSTRUCTION.—The provisions of this section shall not be

construed to prohibit any action permitted under section 2008.

SEC. 2007. ø22 U.S.C. 7426¿ PROHIBITION OF UNITED STATES MILITARY

ASSISTANCE TO PARTIES TO THE INTERNATIONAL CRIMINAL COURT.

(a) PROHIBITION OF MILITARY ASSISTANCE.—Subject to subsections (b) and (c), and effective 1 year after the date on which the

Rome Statute enters into force pursuant to Article 126 of the Rome

Statute, no United States military assistance may be provided to

the government of a country that is a party to the International

Criminal Court.

(b) NATIONAL INTEREST WAIVER.—The President may, without

prior notice to Congress, waive the prohibition of subsection (a)

with respect to a particular country if he determines and reports

to the appropriate congressional committees that it is important to
Sec. 2008 AMERICAN SERVICEMEMBERS’ PROTECTION 998

the national interest of the United States to waive such prohibition.

(c) ARTICLE 98 WAIVER.—The President may, without prior notice to Congress, waive the prohibition of subsection (a) with respect to a particular country if he determines and reports to the

appropriate congressional committees that such country has entered into an agreement with the United States pursuant to Article

98 of the Rome Statute preventing the International Criminal court

from proceeding against United States personnel present in such

country.

(d) EXEMPTION.—The prohibition of subsection (a) shall not

apply to the government of—

(1) a NATO member country;

(2) a major non-NATO ally (including Australia, Egypt,

Israel, Japan, Jordan, Argentina, the Republic of Korea, and

New Zealand); or

(3) Taiwan.

SEC. 2008. ø22 U.S.C. 7427¿ AUTHORITY TO FREE MEMBERS OF THE

ARMED FORCES OF THE UNITED STATES AND CERTAIN

OTHER PERSONS DETAINED OR IMPRISONED BY OR ON

BEHALF OF THE INTERNATIONAL CRIMINAL COURT.

(a) AUTHORITY.—The President is authorized to use all means

necessary and appropriate to bring about the release of any person

described in subsection (b) who is being detained or imprisoned by,

on behalf of, or at the request of the International Criminal Court.

(b) PERSONS AUTHORIZED TO BE FREED.—The authority of subsection (a) shall extend to the following persons:

(1) Covered United States persons.

(2) Covered allied persons.

(3) Individuals detained or imprisoned for official actions

taken while the individual was a covered United States person

or a covered allied person, and in the case of a covered allied

person, upon the request of such government.

(c) AUTHORIZATION OF LEGAL ASSISTANCE.—When any person

described in subsection (b) is arrested, detained, investigated, prosecuted, or imprisoned by, on behalf of, or at the request of the

International Criminal Court, the President is authorized to direct

any agency of the United States Government to provide—

(1) legal representation and other legal assistance to that

person (including, in the case of a person entitled to assistance

under section 1037 of title 10, United States Code, representation and other assistance in the manner provided in that section);

(2) exculpatory evidence on behalf of that person; and

(3) defense of the interests of the United States through

appearance before the International Criminal Court pursuant

to Article 18 or 19 of the Rome Statute, or before the courts

or tribunals of any country.

(d) BRIBES AND OTHER INDUCEMENTS NOT AUTHORIZED.—This

section does not authorize the payment of bribes or the provision

of other such incentives to induce the release of a person described

in subsection (b).
999 Sec. 2011 AMERICAN SERVICEMEMBERS’ PROTECTION

SEC. 2009. ø22 U.S.C. 7428¿ ALLIANCE COMMAND ARRANGEMENTS.

(a) REPORT ON ALLIANCE COMMAND ARRANGEMENTS.—Not later

than 6 months after the date of the enactment of this Act, the

President should transmit to the appropriate congressional committees a report with respect to each military alliance to which the

United States is party—

(1) describing the degree to which members of the Armed

Forces of the United States may, in the context of military operations undertaken by or pursuant to that alliance, be placed

under the command or operational control of foreign military

officers subject to the jurisdiction of the International Criminal

Court because they are nationals of a party to the International Criminal Court; and

(2) evaluating the degree to which members of the Armed

Forces of the United States engaged in military operations undertaken by or pursuant to that alliance may be exposed to

greater risks as a result of being placed under the command

or operational control of foreign military officers subject to the

jurisdiction of the International Criminal Court.

(b) DESCRIPTION OF MEASURES TO ACHIEVE ENHANCED PROTECTION FOR MEMBERS OF THE ARMED FORCES OF THE UNITED

STATES.—Not later than 1 year after the date of the enactment of

this Act, the President should transmit to the appropriate congressional committees a description of modifications to command and

operational control arrangements within military alliances to which

the United States is a party that could be made in order to reduce

any risks to members of the Armed Forces of the United States

identified pursuant to subsection (a)(2).

(c) SUBMISSION IN CLASSIFIED FORM.—The report under subsection (a), and the description of measures under subsection (b),

or appropriate parts thereof, may be submitted in classified form.

SEC. 2010. ø22 U.S.C. 7429¿ WITHHOLDINGS.

Funds withheld from the United States share of assessments

to the United Nations or any other international organization during any fiscal year pursuant to section 705 of the Admiral James

W. Nance and Meg Donovan Foreign Relations Authorization Act,

Fiscal Years 2000 and 2001 (as enacted by section 1000(a)(7) of

Public Law 106–113; 113 Stat. 1501A–460), are authorized to be

transferred to the Embassy Security, Construction and Maintenance Account of the Department of State.

SEC. 2011. ø22 U.S.C. 7430¿ APPLICATION OF SECTIONS 2004 AND 2006

TO EXERCISE OF CONSTITUTIONAL AUTHORITIES.

(a) IN GENERAL.—Sections 2004 and 2006 shall not apply to

any action or actions with respect to a specific matter involving the

International Criminal Court taken or directed by the President on

a case-by-case basis in the exercise of the President’s authority as

Commander in Chief of the Armed Forces of the United States

under article II, section 2 of the United States Constitution or in

the exercise of the executive power under article II, section 1 of the

United States Constitution.

(b) NOTIFICATION TO CONGRESS.—

(1) IN GENERAL.—Subject to paragraph (2), not later than

15 days after the President takes or directs an action or ac-
Sec. 2012 AMERICAN SERVICEMEMBERS’ PROTECTION 1000

tions described in subsection (a) that would otherwise be prohibited under section 2004 or 2006, the President shall submit

a notification of such action to the appropriate congressional

committees. A notification under this paragraph shall include

a description of the action, a determination that the action is

in the national interest of the United States, and a justification

for the action.

(2) EXCEPTION.—If the President determines that a full notification under paragraph (1) could jeopardize the national security of the United States or compromise a United States law

enforcement activity, not later than 15 days after the President

takes or directs an action or actions referred to in paragraph

(1) the President shall notify the appropriate congressional

committees that an action has been taken and a determination

has been made pursuant to this paragraph. The President

shall provide a full notification under paragraph (1) not later

than 15 days after the reasons for the determination under

this paragraph no longer apply.

(c) CONSTRUCTION.—Nothing in this section shall be construed

as a grant of statutory authority to the President to take any action.

SEC. 2012. ø22 U.S.C. 7431¿ NONDELEGATION.

The authorities vested in the President by sections 2003 and

2011(a) may not be delegated by the President pursuant to section

301 of title 3, United States Code, or any other provision of law.

The authority vested in the President by section 2005(c)(3) may not

be delegated by the President pursuant to section 301 of title 3,

United States Code, or any other provision of law to any official

other than the Secretary of Defense, and if so delegated may not

be subdelegated.

SEC. 2013. ø22 U.S.C. 7432¿ DEFINITIONS.

As used in this title and in section 706 of the Admiral James

W. Nance and Meg Donovan Foreign Relations Authorization Act,

Fiscal Years 2000 and 2001:

(1) APPROPRIATE CONGRESSIONAL COMMITTEES.—The term

‘‘appropriate congressional committees’’ means the Committee

on International Relations of the House of Representatives and

the Committee on Foreign Relations of the Senate.

(2) CLASSIFIED NATIONAL SECURITY INFORMATION.—The

term ‘‘classified national security information’’ means information that is classified or classifiable under Executive Order

12958 or a successor Executive order.

(3) COVERED ALLIED PERSONS.—The term ‘‘covered allied

persons’’ means military personnel, elected or appointed officials, and other persons employed by or working on behalf of

the government of a NATO member country, a major nonNATO ally (including Australia, Egypt, Israel, Japan, Jordan,

Argentina, the Republic of Korea, and New Zealand), or Taiwan, for so long as that government is not a party to the International Criminal Court and wishes its officials and other persons working on its behalf to be exempted from the jurisdiction

of the International Criminal Court.
1001 Sec. 2013 AMERICAN SERVICEMEMBERS’ PROTECTION

(4) COVERED UNITED STATES PERSONS.—The term ‘‘covered

United States persons’’ means members of the Armed Forces of

the United States, elected or appointed officials of the United

States Government, and other persons employed by or working

on behalf of the United States Government, for so long as the

United States is not a party to the International Criminal

Court.

(5) EXTRADITION.—The terms ‘‘extradition’’ and ‘‘extradite’’

mean the extradition of a person in accordance with the provisions of chapter 209 of title 18, United States Code, (including

section 3181(b) of such title) and such terms include both extradition and surrender as those terms are defined in Article

102 of the Rome Statute.

(6) INTERNATIONAL CRIMINAL COURT.—The term ‘‘International Criminal Court’’ means the court established by the

Rome Statute.

(7) MAJOR NON-NATO ALLY.—The term ‘‘major non-NATO

ally’’ means a country that has been so designated in accordance with section 517 of the Foreign Assistance Act of 1961.

(8) PARTICIPATE IN ANY PEACEKEEPING OPERATION UNDER

CHAPTER VI OF THE CHARTER OF THE UNITED NATIONS OR PEACE

ENFORCEMENT OPERATION UNDER CHAPTER VII OF THE CHARTER

OF THE UNITED NATIONS.—The term ‘‘participate in any peacekeeping operation under chapter VI of the charter of the

United Nations or peace enforcement operation under chapter

VII of the charter of the United Nations’’ means to assign

members of the Armed Forces of the United States to a United

Nations military command structure as part of a peacekeeping

operation under chapter VI of the charter of the United Nations or peace enforcement operation under chapter VII of the

charter of the United Nations in which those members of the

Armed Forces of the United States are subject to the command

or operational control of one or more foreign military officers

not appointed in conformity with article II, section 2, clause 2

of the Constitution of the United States.

(9) PARTY TO THE INTERNATIONAL CRIMINAL COURT.—The

term ‘‘party to the International Criminal Court’’ means a government that has deposited an instrument of ratification, acceptance, approval, or accession to the Rome Statute, and has

not withdrawn from the Rome Statute pursuant to Article 127

thereof.

(10) PEACEKEEPING OPERATION UNDER CHAPTER VI OF THE

CHARTER OF THE UNITED NATIONS OR PEACE ENFORCEMENT OPERATION UNDER CHAPTER VII OF THE CHARTER OF THE UNITED

NATIONS.—The term ‘‘peacekeeping operation under chapter VI

of the charter of the United Nations or peace enforcement operation under chapter VII of the charter of the United Nations’’

means any military operation to maintain or restore international peace and security that—

(A) is authorized by the United Nations Security

Council under chapter VI or VII of the charter of the

United Nations; and
Sec. 2015 AMERICAN SERVICEMEMBERS’ PROTECTION 1002

(B) is paid for from assessed contributions of United

Nations members that are made available for peacekeeping or peace enforcement activities.

(11) ROME STATUTE.—The term ‘‘Rome Statute’’ means the

Rome Statute of the International Criminal Court, adopted by

the United Nations Diplomatic Conference of Plenipotentiaries

on the Establishment of an International Criminal Court on

July 17, 1998.

(12) SUPPORT.—The term ‘‘support’’ means assistance of

any kind, including financial support, transfer of property or

other material support, services, intelligence sharing, law enforcement cooperation, the training or detail of personnel, and

the arrest or detention of individuals.

(13) UNITED STATES MILITARY ASSISTANCE.—The term

‘‘United States military assistance’’ means—

(A) assistance provided under chapter 2 or 5 of part II

of the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et

seq.); or

(B) defense articles or defense services furnished with

the financial assistance of the United States Government,

including through loans and guarantees, under section 23

of the Arms Export Control Act (22 U.S.C. 2763).

SEC. 2014. REPEAL OF LIMITATION.

[Omitted—Amendment]

SEC. 2015. ø22 U.S.C. 7433¿ ASSISTANCE TO INTERNATIONAL EFFORTS.

Nothing in this title shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam

Hussein, Slobodan Milosovic, Osama bin Laden, other members of

Al Queda, leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity.
1003

H. FAMILY AND SPOUSE PROVISIONS

[As amended through the end of the first session of the

108th Congress, December 31, 2003]

1005

1. SPECIAL ANNUITY PROGRAMS FOR CERTAIN SURVIVING SPOUSES NOT COVERED BY SURVIVOR BENEFIT PLAN

a. Section 4 of Public Law 92–425

(Minimum Income for Certain Widows)

SEC. 4. ø10 U.S.C. 1448 note¿ (a) A person—

(1) who, on September 21, 1972, was, or during the period

beginning on September 22, 1972, and ending on March 20,

1974, became a widow of a person who was entitled to retired

or retainer pay when he died;

(2) who is eligible for a pension under subchapter III of

chapter 15 of title 38, United States Code, or section 306 of the

Veterans’ and Survivors’ Pension Improvement Act of 1978 [38

U.S.C. 521 note]; and

(3) whose annual income, as determined in establishing

that eligibility, is less than the maximum annual rate of pension in effect under section 1541(b) of title 38, United States

Code;

shall be paid an annuity by the Secretary concerned unless she is

eligible to receive an annuity under the Survivor Benefit Plan established pursuant to clause (3) of the first section of this Act [subchapter II of chapter 73 of title 10, United States Code]. However,

such a person who is the widow of a retired officer of the Public

Health Service or the National Oceanic and Atmospheric Administration, and who would otherwise be eligible for an annuity under

this section except that she does not qualify for the pension described in clause (2) of this subsection because the service of her

deceased spouse is not considered active duty under section 101(21)

of title 38, United States Code, is entitled to an annuity under this

section.

(b) The annuity under subsection (a) of this section shall be in

an amount which when added to the widow’s income determined

under subsection (a)(3) of this section, plus the amount of any annuity being received under sections 1431–1436 of title 10, United

States Code, but exclusive of a pension described in subsection

(a)(2) of this section, equals the maximum annual rate of pension

in effect under section 1541(b) of title 38, United States Code. In

addition, the Secretary concerned shall pay to the widow, described

in the last sentence of subsection (a) of this section, an amount

equal to the pension she would otherwise have been eligible to receive under subchapter III of chapter 15 of title 38, United States

Code, if the service of her deceased spouse was considered active

duty under section 101(21) of that title.
Sec. 5 SPECIAL ANNUITY PROGRAMS 1006

(c) The amount of an annuity payable under this section, although counted as income in determining the amount of any pension described in subsection (a)(2) of this section, shall not be considered to affect the eligiblity of the recipient of such annuity for

such pension, even though, as a result of including the amount of

the annuity as income, no amount of such pension is due.

(d) Subsection 1450(i) and section 1453 as added to title 10,

United States Code, by clause (3) of the first section of this Act, are

applicable to persons covered by this section.

(e)(1) Payment of annuities under this section shall be made by

the Secretary of Veterans Affairs. In making such payments, the

Secretary shall combine with the payment under this section payment of any amount due the same person under section 653(d) of

the National Defense Authorization Act, Fiscal Year 1989 (10

U.S.C. 1448 note). If appropriate for administrative convenience (or

otherwise determined appropriate by the Secretary of Veterans Affairs), that Secretary may combine a payment to any person for

any month under this section (and, if applicable, under section

653(d) of the National Defense Authorization Act, Fiscal Year 1989)

with any other payment for that month under laws administered

by the Secretary so as to provide that person with a single payment

for that month.

(2) The Secretary concerned shall annually transfer to the Secretary of Veterans Affairs such amounts as may be necessary for

payments by the Secretary of Veterans Affairs under this section

and for costs of the Secretary of Veterans Affairs in administering

this section. Such transfers shall be made from amounts that

would otherwise be used for payment of annuities by the Secretary

concerned under this section. The authority to make such a transfer is in addition to any other authority of the Secretary concerned

to transfer funds for a purpose other than the purpose for which

the funds were originally made available. In the case of a transfer

by the Secretary of a military department, the provisions of section

2215 of title 10, United States Code, do not apply.

(3) The Secretary concerned shall promptly notify the Secretary of Veterans Affairs of any change in beneficiaries under this

section.

b. Section 5 of the Uniformed Services Survivor Benefits

Amendments of 1980

(Public Law 96–402)

SEC. 5. ø10 U.S.C. 1448 note¿ (a)(1) The Secretary concerned

shall pay an annuity to any individual who is the surviving spouse

of a member of the uniformed services who—

(A) died before September 21, 1972;

(B) was serving on active duty in the uniformed services

at the time of his death and had served on active duty for a

period of not less than 20 years; and

(C) was at the time of his death entitled to retired or retainer pay or would have been entitled to that pay except that

he had not applied for or been granted that pay.

(2) An annuity under paragraph (1) shall be paid under the

provisions of subchapter II of chapter 73 of title 10, United States
1007 Sec. 653 SPECIAL ANNUITY PROGRAMS

Code, in the same manner as if such member had died on or after

September 21, 1972.

(b)(1) The amount of retired or retainer pay to be used as the

basis for the computation of an annuity under subsection (a) is the

amount of the retired or retainer pay to which the member would

have been entitled if the member had been entitled to that pay

based upon his years of active service when he died, adjusted by

the overall percentage increase in retired and retainer pay under

section 1401a of title 10, United States Code (or any prior comparable provision of law), during the period beginning on the date

of the member’s death and ending on the day before the effective

date of this section.

(2) In addition to any reduction required under the provisions

of subchapter II of chapter 73 of title 10, United States Code, the

annuity pay to any surviving spouse under this section shall be reduced by any amount such surviving spouse is entitled to receive

as an annuity under subchapter I of such chapter.

(c) If an individual entitled to an annuity under this section is

also entitled to an annuity under subchapter II of chapter 73 of

title 10, United States Code, based upon a subsequent marriage,

the individual may not receive both annuities but must elect which

to receive.

(d) As used in this section:

(1) The term ‘‘uniformed services’’ means the Armed Forces

and the commissioned corps of the Public Health Service and

of the National Oceanic and Atmospheric Administration.

(2) The term ‘‘surviving spouse’’ has the meaning given the

terms ‘‘widow’’ and ‘‘widower’’ in section 1447 of title 10,

United States Code.

(3) The term ‘‘Secretary concerned’’ has the meaning, given

such term in section 101(8) of title 10, United States Code, and

includes the Secretary of Commerce, with respect to matters

concerning the National Oceanic and Atmospheric Administration, and the Secretary of Health and Human Services, with

respect to matters concerning the Public Health Service.

c. Section 653 of the National Defense Authorization Act,

Fiscal Year 1989

(Public Law 100–456)

SEC. 653. ø10 U.S.C. 1448 note¿ ANNUITY FOR CERTAIN SURVIVING

SPOUSES

(a) ANNUITY.—(1) The Secretary concerned shall pay an annuity to the qualified surviving spouse of each member of the uniformed services who—

(A) died before November 1, 1953; and

(B) was entitled to retired or retainer pay on the date of

death.

(2) A qualified surviving spouse for purposes of this section is

a surviving spouse who has not remarried and who is eligible for

an annunity under section 4 of Public Law 92–425 (10 U.S.C. 1448

note).
Sec. 653 SPECIAL ANNUITY PROGRAMS 1008

(b) AMOUNT OF ANNUITY.—(1) An annuity payable under this

section shall be paid at the rate of $165 per month, as adjusted

from time to time under subsection (c).

(2) An annuity paid to a surviving spouse under this section

shall be reduced by the amount of dependency and indemnity compensation (DIC) to which the surviving spouse is entitled under

section 1311(a) of title 38, United States Code.

(c) COST-OF-LIVING INCREASES.—Whenever retired or retainer

pay is increased under section 1401a(b)(2) of title 10, United States

Code, each annuity that is payable under this section shall be increased at the same time and by the same total percent. The

amount of the increase shall be based on monthly annuity payable

before any reduction under this section.

(d) RELATIONSHIP TO OTHER PROGRAMS.—(1) An annuity paid

to a surviving spouse under this section is in addition to any pension to which the surviving spouse is entitled under subchapter III

of chapter 15 of title 38, United States Code, or section 306 of the

Veterans’ and Survivors’ Pension Improvement Act of 1978 (38

U.S.C. 521 note), and any payment made under the provisions of

section 4 of Public Law 92–425. An annuity paid under this section

shall not be considered as income for the purposes of eligibility for

any such pension.

(2) Payment of annuities under this section shall be made by

the Secretary of Veterans Affairs. In making such payments, the

Secretary shall combine the payment under this section with the

payment of any amount due the same person under section 4 of

Public Law 92–425 (10 U.S.C. 1448 note), as provided in subsection

(e)(1) of that section. The Secretary concerned shall transfer

amounts for payments under this section to the Secretary of Veterans Affairs in the same manner as is provided under subsection

(e)(2) of section 4 of Public Law 92–425 for payments under that

section.

(e) DEFINITIONS.—For purposes of this section:

(1) The terms ‘‘uniformed services’’ and ‘‘Secretary concerned’’ have the meanings given those terms in section 101 of

title 37, United States Code.

(2) The term ‘‘surviving spouse’’ has the meaning given the

terms ‘‘widow’’ and ‘‘widower’’ in paragraphs (3) and (4), respectively, of section 1447 of title 10, United States Code.

(f) EFFECTIVE DATE.—Annuities under this section shall be

paid for months beginning after the month in which this Act is enacted [Sept. 1988]. No benefit shall accrue to any person by reason

of the enactment of this section for any period before the first

month referred to in the preceding sentence. No benefit shall be

paid to any person under this section unless an application for such

benefit has been filed with the Secretary concerned by or on behalf

of such person.
1009 Sec. 644 SPECIAL ANNUITY PROGRAMS

d. Section 635 of the National Defense Authorization Act for

Fiscal Year 1996

(Public Law 104–106, as approved February 10, 1996)

SEC. 635. ø10 U.S.C. 1448 note¿ AUTHORITY FOR RELIEF FROM PREVIOUS OVERPAYMENTS UNDER MINIMUM INCOME WIDOWS PROGRAM.

(a) AUTHORITY.—The Secretary of Defense may waive recovery

by the United States of any overpayment by the United States described in subsection (b). In the case of any such waiver, any debt

to the United States arising from such overpayment is forgiven.

(b) COVERED OVERPAYMENTS.—Subsection (a) applies in the

case of an overpayment by the United States that—

(1) was made before the date of the enactment of this Act

under section 4 of Public Law 92–425 (10 U.S.C. 1448 note);

and

(2) is attributable to failure by the Department of Defense

to apply the eligibility provisions of subsection (a) of such section in the case of the person to whom the overpayment was

made.

e. Section 644 of the National Defense Authorization Act for

Fiscal Year 1998

(Public Law 105–85)

SEC. 644. ø10 U.S.C. 1448 note¿ ANNUITIES FOR CERTAIN MILITARY

SURVIVING SPOUSES.

(a) SURVIVOR ANNUITY.—(1) The Secretary concerned shall pay

an annuity to the qualified surviving spouse of each member of the

uniformed services who—

(A) became entitled to retired or retainer pay before September 21, 1972, died before March 21, 1974, and was entitled

to retired or retainer pay on the date of death; or

(B) died before October 1, 1978, and at the time of his

death would have been entitled to retired pay under chapter 67

of title 10, United States Code (as in effect before December 1,

1994), but for the fact that he was under 60 years of age.

(2) A qualified surviving spouse for purposes of this section is

a surviving spouse who has not remarried.

(b) AMOUNT OF ANNUITY.—(1) An annuity under this section

shall be paid at the rate of $185.58 per month, as adjusted from

time to time under paragraph (3).

(2) The amount of an annuity to which a surviving spouse is

entitled under this section for any period shall be reduced (but not

below zero) by any amount paid to that surviving spouse for the

same period under any of the following provisions of law:

(A) Section 1311(a) of title 38, United States Code (relating

to dependency and indemnity compensation payable by the

Secretary of Veterans Affairs).

(B) Chapter 73 of title 10, United States Code.

(C) Section 4 of Public Law 92–425 (10 U.S.C. 1448 note).

(3) Whenever after May 1, 2002, retired or retainer pay is increased under section 1401a(b)(2) of title 10, United States Code,

each annuity that is payable under this section shall be increased

at the same time and by the same total percent.
Sec. 642 SBP OPEN ENROLLMENT PERIOD 1010

(c) APPLICATION REQUIRED.—No benefit shall be paid to any

person under this section unless an application for such benefit is

filed with the Secretary concerned by or on behalf of such person.

(d) DEFINITIONS.—For purposes of this section:

(1) The terms ‘‘uniformed services’’ and ‘‘Secretary concerned’’ have the meanings given such terms in section 101 of

title 37, United States Code.

(2) The term ‘‘surviving spouse’’ has the meaning given

such term in paragraph (9) of section 1447 of title 10, United

States Code.

(e) PROSPECTIVE APPLICABILITY.—(1) Annuities under this section shall be paid for months beginning after November 1997.

(2) No benefit shall accrue to any person by reason of the enactment of this section for any period before December 1997.

f. Section 642 of the Strom Thurmond National Defense

Authorization Act for Fiscal Year 1999

(Public Law 106–261, approved Oct. 17, 1998)

SEC. 642. ø10 U.S.C. 1448 note¿ SURVIVOR BENEFIT PLAN OPEN ENROLLMENT PERIOD.

(a) PERSONS NOT CURRENTLY PARTICIPATING IN SURVIVOR BENEFIT PLAN.—

(1) ELECTION OF SBP COVERAGE.—An eligible retired or

former member may elect to participate in the Survivor Benefit

Plan during the open enrollment period specified in subsection

(d).

(2) ELECTION OF SUPPLEMENTAL ANNUITY COVERAGE.—An

eligible retired or former member who elects under paragraph

(1) to participate in the Survivor Benefit Plan may also elect

during the open enrollment period to participate in the Supplemental Survivor Benefit Plan.

(3) ELIGIBLE RETIRED OR FORMER MEMBER.—For purposes

of paragraphs (1) and (2), an eligible retired or former member

is a member or former member of the uniformed services who

on the day before the first day of the open enrollment period

is not a participant in the Survivor Benefit Plan and—

(A) is entitled to retired pay; or

(B) would be entitled to retired pay under chapter

1223 of title 10, United States Code (or chapter 67 of such

title as in effect before October 5, 1994), but for the fact

that such member or former member is under 60 years of

age.

(4) STATUS UNDER SBP OF PERSONS MAKING ELECTIONS.—

(A) STANDARD ANNUITY.—A person making an election

under paragraph (1) by reason of eligibility under paragraph (3)(A) shall be treated for all purposes as providing

a standard annuity under the Survivor Benefit Plan.

(B) RESERVE-COMPONENT ANNUITY.—A person making

an election under paragraph (1) by reason of eligibility

under paragraph (3)(B) shall be treated for all purposes as

providing a reserve-component annuity under the Survivor

Benefit Plan.

(b) MANNER OF MAKING ELECTIONS.—
1011 Sec. 642 SBP OPEN ENROLLMENT PERIOD

(1) IN GENERAL.—An election under this section must be

made in writing, signed by the person making the election, and

received by the Secretary concerned before the end of the open

enrollment period. Except as provided in paragraph (2), any

such election shall be made subject to the same conditions, and

with the same opportunities for designation of beneficiaries

and specification of base amount, that apply under the Survivor Benefit Plan or the Supplemental Survivor Benefit Plan,

as the case may be. A person making an election under subsection (a) to provide a reserve-component annuity shall make

a designation described in section 1448(e) of title 10, United

States Code.

(2) ELECTION MUST BE VOLUNTARY.—An election under this

section is not effective unless the person making the election

declares the election to be voluntary. An election to participate

in the Survivor Benefit Plan under this section may not be required by any court. An election to participate or not to participate in the Survivor Benefit Plan is not subject to the concurrence of a spouse or former spouse of the person.

(c) EFFECTIVE DATE FOR ELECTIONS.—Any such election shall

be effective as of the first day of the first calendar month following

the month in which the election is received by the Secretary concerned.

(d) OPEN ENROLLMENT PERIOD DEFINED.—The open enrollment

period is the 1-year period beginning on March 1, 1999.

(e) EFFECT OF DEATH OF PERSON MAKING ELECTION WITHIN

TWO YEARS OF MAKING ELECTION.—If a person making an election

under this section dies before the end of the 2-year period beginning on the effective date of the election, the election is void and

the amount of any reduction in retired pay of the person that is

attributable to the election shall be paid in a lump sum to the person who would have been the deceased person’s beneficiary under

the voided election if the deceased person had died after the end

of such 2-year period.

(f ) APPLICABILITY OF CERTAIN PROVISIONS OF LAW.—The provisions of sections 1449, 1453, and 1454 of title 10, United States

Code, are applicable to a person making an election, and to an election, under this section in the same manner as if the election were

made under the Survivor Benefit Plan or the Supplemental Survivor Benefit Plan, as the case may be.

(g) PREMIUMS FOR OPEN ENROLLMENT ELECTION.—

(1) PREMIUMS TO BE CHARGED.—The Secretary of Defense

shall prescribe in regulations premiums which a person electing under this section shall be required to pay for participating

in the Survivor Benefit Plan pursuant to the election. The total

amount of the premiums to be paid by a person under the regulations shall be equal to the sum of—

(A) the total amount by which the retired pay of the

person would have been reduced before the effective date

of the election if the person had elected to participate in

the Survivor Benefit Plan (for the same base amount specified in the election) at the first opportunity that was afforded the member to participate under chapter 73 of title

10, United States Code;
Sec. 642 SBP OPEN ENROLLMENT PERIOD 1012

(B) interest on the amounts by which the retired pay

of the person would have been so reduced, computed from

the dates on which the retired pay would have been so reduced at such rate or rates and according to such methodology as the Secretary of Defense determines reasonable;

and

(C) any additional amount that the Secretary determines necessary to protect the actuarial soundness of the

Department of Defense Military Retirement Fund against

any increased risk for the fund that is associated with the

election.

(2) PREMIUMS TO BE CREDITED TO RETIREMENT FUND.—Premiums paid under the regulations shall be credited to the Department of Defense Military Retirement Fund.

(h) CREDIT TOWARD PAID-UP COVERAGE.—Upon payment of the

total amount of the premiums charged a person under subsection

(g), the retired pay of a person participating in the Survivor Benefit

Plan pursuant to an election under this section shall be treated, for

the purposes of subsection (j) of section 1452 of title 10, United

States Code, as having been reduced under such section 1452 for

the months in the period for which the person’s retired pay would

have been reduced if the person had elected to participate in the

Survivor Benefit Plan at the first opportunity that was afforded the

person to participate.

(i) DEFINITIONS.—In this section:

(1) The term ‘‘Survivor Benefit Plan’’ means the program

established under subchapter II of chapter 73 of title 10,

United States Code.

(2) The term ‘‘Supplemental Survivor Benefit Plan’’ means

the program established under subchapter III of chapter 73 of

title 10, United States Code.

(3) The term ‘‘retired pay’’ includes retainer pay paid

under section 6330 of title 10, United States Code.

(4) The terms ‘‘uniformed services’’ and ‘‘Secretary concerned’’ have the meanings given those terms in section 101 of

title 37, United States Code.

(5) The term ‘‘Department of Defense Military Retirement

Fund’’ means the Department of Defense Military Retirement

Fund established under section 1461(a) of title 10, United

States Code.
1013

2. DEFENSE DEPENDENTS’ EDUCATION

a. Defense Dependents’ Education Act of 1978

(title XIV of Public Law 95–561)

SHORT TITLE

SEC. 1401. This title may be cited as the ‘‘Defense Dependents’

Education Act of 1978’’.

ESTABLISHMENT OF DEFENSE DEPENDENTS’ EDUCATION SYSTEM

SEC. 1402. ø20 U.S.C. 921¿ (a) The Secretary of Defense shall

establish and operate a program (hereinafter in this title referred

to as the ‘‘defense dependents’ education system’’) to provide a free

public education through secondary school for dependents in overseas areas.

(b)(1) The Secretary shall ensure that individuals eligible to receive a free public education under subsection (a) receive an education of high quality.

(2) In establishing the defense dependents’ education system

under subsection (a), the Secretary shall provide programs designed to meet the special needs of—

(A) the handicapped,

(B) individuals in need of compensatory education,

(C) individuals with an interest in vocational education,

(D) gifted and talented individuals, and

(E) individuals of limited English-speaking ability.

(3) The Secretary shall provide a developmental preschool program to individuals eligible to receive a free public education under

subsection (a) who are of preschool age if a preschool program is

not otherwise available for such individuals and if funds for such

a program are available.

(c) The Secretary of Defense shall consult with the Secretary

of Education on the educational programs and practices of the defense dependents’ education system.

(d)(1) The Secretary of Defense may provide optional summer

school programs in the defense dependents’ education system.

(2) The Secretary shall provide any summer school program

under this subsection on the same financial basis as programs offered during the regular school year, except that the Secretary may

charge reasonable fees for all or portions of such summer school

programs to the extent that the Secretary determines appropriate.

(3) The amounts received by the Secretary in payment of the

fees shall be available to the Department of Defense for defraying

the costs of conducting summer school programs under this subsection.
Sec. 1403 DEFENSE DEPENDENTS’ EDUCATION ACT OF 1978 1014

ADMINISTRATION OF DEFENSE DEPENDENTS’ EDUCATION SYSTEM

SEC. 1403. ø20 U.S.C. 922¿ (a) The defense dependents’ education system is operated through the field activity of the Department of Defense known as the Department of Defense Education

Activity. That activity is headed by a Director, who is a civilian and

is selected by the Secretary of Defense. The Director reports to an

Assistant Secretary of Defense designated by the Secretary of Defense for purposes of this title.

(b) Except with respect to the authority to prescribe regulations, the Secretary of Defense may carry out his functions under

this title through the Director.

(c) The Director shall—

(1) establish personnel policies, consistent with the Defense Department Overseas Teachers Pay and Personnel Practices Act (20 U.S.C. 901 et seq.), for employees in the defense

dependents’ education system,

(2) have authority to transfer professional employees in

the defense dependents’ education system from one position to

another,

(3) prepare a unified budget for each fiscal year, which

shall include necessary funds for construction and operation

and maintenance of facilities, for the defense dependents’ education system for inclusion in the Department of Defense budget for that year,

(4) have authority to establish, in accordance with section

1410, local school advisory committees,

(5) have authority to arrange for inservice and other training programs for employees in the defense dependents’ education system, and

(6) perform such other functions as may be required or delegated by the Secretary of Defense or the Assistant Secretary

of Defense designated under subsection (a).

(d)(1) The Director shall establish appropriate regional or area

offices in order to provide for thorough and efficient administration

of the defense dependents’ education system.

(2) Whenever the Department of Defense Education Activity is

reorganized in a manner that affects the defense dependents’ education system, the Secretary of Defense shall submit a report to the

Congress describing the reorganization.

(3) Subject to the approval of the Secretary of Defense, the Department of Defense Education Activity is authorized an appropriate number of civilian employees in its central office and such

regional or area office as are established pursuant to paragraph (1).

SPACE-AVAILABLE ENROLLMENT OF STUDENTS; TUITION

SEC. 1404. ø20 U.S.C. 923¿ (a) Subject to subsection (b) and in

accordance with regulations issued under subsection (c), the Director may authorize the enrollment in a school of the defense dependents’ education system of a child not otherwise eligible to enroll in

such a school if and to the extent that there is space available for

such child in the school.

(b)(1) Except as otherwise provided under subsection (c), any

child permitted to enroll in a school of the defense dependents’ education system under this section shall be required to pay tuition at
1015 Sec. 1405 DEFENSE DEPENDENTS’ EDUCATION ACT OF 1978

a rate determined by the Secretary of Defense, which shall not be

less than the rate necessary to defray the average cost of the enrollment of children in the system under this section.

(2) Amounts received under paragraph (1) shall be available to

the defense dependents’ education system to assist in defraying the

cost of enrollment of children in the system under this section.

(c)(1) The Secretary of Defense may by regulation identify

classes of children who shall be eligible to enroll in schools of the

defense dependents’ education system under this section if and to

the extent that there is space available, establish priorities among

such classes, waive the tuition requirement of subsection (b)(1)

with respect to any such class, and issue such other regulations as

may be necessary to carry out this section.

(2)(A) The Secretary shall include in the regulations prescribed

under this subsection a requirement that children in the class of

children described in subparagraph (B) shall be subject to the same

tuition requirements, or waiver of tuition requirements, as children

in the class of children described in subparagraph (C).

(B) The class of children described in this subparagraph are

children of members of reserve components of the Armed Forces

who—

(i) are on active duty under an order to active duty under

section 12301 or 12302 of title 10, United States Code;

(ii) were ordered to active duty from a location in the

United States (other than in Alaska or Hawaii); and

(iii) are serving on active duty outside the United States

or in Alaska or Hawaii.

(C) The class of children described in this subparagraph are

children of members of reserve components of the Armed Forces

who—

(i) are on active duty under an order to active duty under

section 12301 or 12302 of title 10, United States Code;

(ii) were ordered to active duty from a location outside the

United States (or in Alaska or Hawaii); and

(iii) are serving on active duty outside the United States

or in Alaska or Hawaii.

(d)(1) The Secretary of Defense may authorize the enrollment

in schools of the defense dependents’ education system of children

in the following classes:

(A) Children of officers and employees of the United States

(other than civilian officers and employees who are sponsors

under section 1414(2)) stationed in overseas areas.

(B) Children of employees of contractors employed in carrying out work for the United States in overseas areas.

(C) Children of other citizens or nationals of the United

States or of foreign nationals, if the Secretary determines that

enrollment of such children is in the national interest.

(2) Notwithstanding subsection (c), the Secretary may not

waive the tuition requirements of subsection (b)(1) with respect to

children referred to in paragraph (1).

ANNUAL EDUCATIONAL ASSESSMENT

SEC. 1405. ø20 U.S.C. 924¿ (a) The Director shall assess each

year the performance of the defense dependents’ education system

in providing an education of high quality to children enrolled in the
Sec. 1406 DEFENSE DEPENDENTS’ EDUCATION ACT OF 1978 1016

system. Such assessment may include the use of educational assessment measures and such other means as the Director determines to be suitable for assessing student performance.

(b) The results of each annual assessment under subsection (a)

with respect to an individual enrolled in the defense dependents’

education system shall be made available to the sponsor of such individual, and summary results of each such annual assessment

shall be made available to Members of Congress and to professional

employees in the system.

SCHOOL CONSTRUCTION BY THE DIRECTOR OF DEPENDENTS’

EDUCATION

SEC. 1406. ø20 U.S.C. 925¿ The President shall include in his

budget for each fiscal year a separate request for funds for construction of school facilities by the Director.

SCHOOL SYSTEM FOR DEPENDENTS IN OVERSEAS AREAS

SEC. 1407. ø20 U.S.C. 926¿ (a) The Secretary of Defense shall

establish and operate a school system for dependents in overseas

areas as part of the defense dependents’ education system.

(b) TUITION AND ASSISTANCE WHEN SCHOOLS UNAVAILABLE.—

(1) Under such circumstances as the Secretary of Defense may prescribe in regulations, the Secretary may provide tuition to allow dependents in an overseas area where a school operated by the Secretary is not reasonably available to attend schools other than

schools established under subsection (a) on a tuition-free basis. Any

school to which tuition is paid under this subsection to allow a dependent in an overseas area to attend such school shall provide an

educational program satisfactory to the Secretary.

(2)(A) The Secretary of Defense, and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service of the Navy, may provide financial assistance to

sponsors of dependents in overseas areas where schools operated by

the Secretary of Defense under subsection (a) are not reasonably

available in order to assist the sponsors to defray the costs incurred by the sponsors for the attendance of the dependents at

schools in such areas other than schools operated by the Secretary

of Defense.

(B) The Secretary of Defense and the Secretary of Homeland

Security shall each prescribe regulations relating to the availability

of financial assistance under subparagraph (A). Such regulations

shall, to the maximum extent practicable, be consistent with Department of State regulations relating to the availability of financial assistance for the education of dependents of Department of

State personnel overseas.

(c) CONTINUATION OF ENROLLMENT FOR CERTAIN DEPENDENTS

OF MEMBERS OF THE ARMED FORCES INVOLUNTARILY SEPARATED.—

(1) A member of the Armed Forces serving on active duty on September 30, 1990, who is involuntarily separated during the period

beginning on October 1, 1990, and ending on December 31, 2001,

and who has a dependent described in paragraph (2) who is enrolled in a school of the defense dependents’ education system (or

a school for which tuition is provided under subsection (b)) on the

date of that separation shall be eligible to enroll or continue the
1017 Sec. 1409 DEFENSE DEPENDENTS’ EDUCATION ACT OF 1978

enrollment of that dependent at that school (or another school serving the same community) for the final year of secondary education

of that dependent in the same manner as if the member were still

on active duty.

(2) A dependent referred to in paragraph (1) is a dependent

who on the date of the separation of the member has completed the

eleventh grade and is likely to complete secondary education within

the one-year period beginning on that date.

(d) AUXILIARY SERVICES AVAILABLE TO HOME SCHOOL STUDENTS.—(1) A dependent who is educated in a home school setting,

but who is eligible to enroll in a school of the defense dependents’

education system, shall be permitted to use or receive auxiliary

services of that school without being required to either enroll in

that school or register for a minimum number of courses offered by

that school. The dependent may be required to satisfy other eligibility requirements and comply with standards of conduct applicable to students actually enrolled in that school who use or receive

the same auxiliary services.

(2) For purposes of paragraph (1), the term ‘‘auxiliary services’’

includes use of academic resources, access to the library of the

school, after hours use of school facilities, and participation in

music, sports, and other extracurricular and interscholastic activities.

(e) øSubsection (e), as redesignated by section 353(1) of P.L.

107–107, added a new section 429 (relating to travel and transportation allowances for minor dependent schooling) to title 37, United

States Code.¿

ELIGIBILITY FOR SCHOOL LUNCH AND BREAKFAST PROGRAMS

SEC. 1408. øSection 1408 amended the National School Lunch

Act and the Child Nutrition Act of 1966.¿

ALLOTMENT FORMULA

SEC. 1409. ø20 U.S.C. 927¿ (a) The Director shall by regulation

establish a formula for determining the minimum allotment of

funds necessary for the operation of each school in the defense dependents’ education system. In establishing such formula, the Director shall take into consideration—

(1) the number of students served by a school and the size

of the school;

(2) special cost factors for a school, including—

(A) geographic isolation of the school,

(B) a need for special staffing, transportation, or educational programs at the school, and

(C) unusual food and housing costs,

(3) the cost of providing academic services of a high quality

as required by section 1402(b)(1); and

(4) such other factors as the Director considers appropriate.

(b) Any regulation under subsection (a) shall be issued, and

shall become effective, in accordance with the procedures applicable

to regulations required to be issued by the Secretary of Education

in accordance with section 437 of the General Education Provisions

Act (20 U.S.C. 1232).
Sec. 1410 DEFENSE DEPENDENTS’ EDUCATION ACT OF 1978 1018

(c) APPLICABILITY OF CERTAIN PROVISIONS.— (1) CHILDREN WITH DISABILITIES.—Notwithstanding the

provisions of section 1402(b)(3), the provisions of part B of the

Individuals with Disabilities Education Act, other than the

funding and reporting provisions, shall apply to all schools operated by the Department of Defense under this title, including

the requirement that children with disabilities, aged 3 to 5, inclusive, receive a free appropriate public education.

(2) INFANTS AND TODDLERS WITH DISABILITIES.—The responsibility to provide comparable early intervention services

to infants and toddlers with disabilities and their families in

accordance with individualized family service plans described

in section 677 of the Individuals with Disabilities Education

Act and to comply with the procedural safeguards set forth in

part H of such Act shall apply with respect to all eligible dependents overseas.

(3) IMPLEMENTATION.—In carrying out paragraph (2), the

Secretary shall have in effect a comprehensive, coordinated,

multidisciplinary program of early intervention services for infants and toddlers with disabilities among Department of Defense entities involved in the provision of such services to such

individuals.

SCHOOL ADVISORY COMMITTEES

SEC. 1410. ø20 U.S.C. 928¿ (a)(1) The Director shall provide for

the establishment of an advisory committee for each school in the

defense dependents’ education system. An advisory committee for

a school shall advise the principal or superintendent of the school

with respect to the operation of the school, may make recommendations with respect to curriculum and budget matters, and, except

as provided under paragraph (2), shall advise the local military

commander with respect to problems concerning dependents’ education within the jurisdiction of the commander. The membership

of each such advisory committee shall include an equal number of

parents of students enrolled in the school and of employees working at the school and, when appropriate, may include a student enrolled in the school. The membership of each such advisory committee shall also include one nonvoting member designated by the

organization recognized as the exclusive bargaining representative

of the employees working at the school.

(2) In the case of any military installation or overseas area

where there is more than one school in the defense dependents’

education system, the Director shall provide for the establishment

of an advisory committee for such military installation or overseas

area to advise the local military commander with respect to problems concerning dependents’ education within the jurisdiction of

the commander.

(b) Except in the case of a nonvoting member designated under

the last sentence of subsection (a)(1), members of a school advisory

committee established under this section shall be elected by individuals of voting age residing in the area to be served by the advisory committee. The Secretary of Defense shall by regulation prescribe the qualifications for election to an advisory committee and

procedures for conducting elections of advisory committee members.
1019 Sec. 1411 DEFENSE DEPENDENTS’ EDUCATION ACT OF 1978

(c) Members of school advisory committees established under

this section shall serve without pay.

ADVISORY COUNCIL ON DEPENDENTS’ EDUCATION

SEC. 1411. ø20 U.S.C. 929¿ (a)(1) There is established in the

Department of Defense an Advisory Council on Dependents’ Education (hereinafter in this section referred to as the ‘‘Council’’). The

Council shall be composed of—

(A) the Secretary of Defense and the Secretary of Education, or their respective designees;

(B) 12 individuals appointed jointly by the Secretary of Defense and the Secretary of Education who shall be individuals

who have demonstrated an interest in the field of primary or

secondary education and who shall include representatives of

professional employee organizations, school administrators,

and parents of students enrolled in the defense dependents’

education system, and one student enrolled in such system;

and

(C) a representative of the Secretary of Defense and of the

Secretary of Education.

(2) Individuals appointed to the Council from professional employee organizations shall be individuals designated by those organizations.

(3) The Secretary of Defense, or the Secretary’s designee, and

the Secretary of Education, or the Secretary’s designee, shall serve

as cochairmen of the Council.

(4) The Director shall be the Executive Secretary of the Council.

(b) the term of office of each member of the Council appointed

under subsection (a)(2) shall be three years, except that—

(1) of the members first appointed under such paragraph,

four shall serve for a term of one year, four shall serve for a

term of two years, and four shall serve for a term of three

years, as determined by the Secretary of Defense and the Secretary of Education at the time of their appointment, and

(2) any member appointed to fill a vacancy occurring before the expiration of the term for which his predecessor was

appointed shall be appointed for the remainder of such term.

No member appointed under subsection (a)(2) shall serve more

than two full terms on the Council.

(c) The Council shall meet at least two times each year. The

functions of the Council shall be to—

(1) recommend to the Director general policies for operation of the defense dependents’ education system with respect

to curriculum selection, administration, and operation of the

system,

(2) provide information to the Director from other Federal

agencies concerned with primary and secondary education with

respect to education programs and practices which such agencies have found to be effective and which should be considered

for inclusion in the defense dependents’ education system,

(3) advise the Director on the design of the study and the

selection of the contractor referred to in section 1412(a)(2) of

this title, and
Sec. 1412 DEFENSE DEPENDENTS’ EDUCATION ACT OF 1978 1020

(4) perform such other tasks as may be required by the

Secretary of Defense.

(d) Members of the Council who are not in the regular full-time

employ of the United States shall, while attending meetings or conferences of the Council or otherwise engaged in the business of the

Council, be entitled to receive compensation at the daily equivalent

of the rate specified at the time of such service for level IV of the

Executive Schedule under section 5315 of title 5, United States

Code, including traveltime, and while so serving on the business of

the Council away from their homes or regular places of business,

they may be allowed travel expenses, including per diem in lieu of

subsistence, as authorized by section 5703 of title 5, United States

Code, for persons employed intermittently in the Government service.

(e) The Council shall continue in existence until terminated by

law.

STUDY OF DEFENSE DEPENDENTS’ EDUCATION SYSTEM

SEC. 1412. ø20 U.S.C. 930¿ (a)(1) The Director may from time

to time, but not more frequently than once a year, provide for a

comprehensive study of the entire defense dependents’ education

system. Any such study shall include a detailed analysis of the education programs and the facilities of the system.

(2) Any study under paragraph (1) shall be conducted by a contractor selected by the Director after an open competition. After

conducting such study, the contractor shall submit a report to the

Director describing the results of the study and giving its assessment of the defense dependents’ education system.

(b) In designing the specifications for any study to be conducted pursuant to subsection (a)(1), and in selecting a contractor

to conduct such study under subsection (a)(2), the Director shall

consult with the Advisory Council on Dependents’ Education established under section 1411 of this title.

(c) The Director shall submit to the Congress any report submitted to him under subsection (a)(2) describing the results of the

study carried out pursuant to subsection (a)(1), together with the

recommendations, if any, of the contractor for legislation or any increase in funding needed to improve the defense dependents’ education system. Notwithstanding any law, rule, or regulation to the

contrary, such report shall not be submitted to any review before

its transmittal to the Congress, but the Secretary of Defense shall,

at the time of the transmittal of such report, submit to the Congress such recommendations as he may have with respect to legislation or any increase in funding needed to improve the defense dependents’ education system.

REGULATIONS

SEC. 1413. ø20 U.S.C. 931¿ The Secretary of Defense shall

issue regulations to carry out this title. Such regulations shall—

(1) prescribe the educational goals and objectives of the defense dependents’ education system,

(2) establish standards for the development of curricula for

the system and for the selection of instructional materials,
1021 Sec. 1415 DEFENSE DEPENDENTS’ EDUCATION ACT OF 1978

(3) prescribe professional standards for professional personnel employed in the system,

(4) provide for arrangements between the Director and

commanders of military installations for necessary logistic support for schools of the system located on military installations,

(5) provide for a recertification program for professional

personnel employed in the system, and

(6) provide for such other matters as may be necessary to

ensure the efficient organization and operation of the defense

dependents’ education system.

DEFINITIONS

SEC. 1414. ø20 U.S.C. 932¿ For purposes of this title:

(1) The term ‘‘dependent’’ means a minor individual—

(A) who has not completed secondary schooling, and

(B) who is the child, stepchild, adopted child, ward, or

spouse of a sponsor, or who is a resident in the household

of a sponsor who stands in loco parentis to such individual

and who receives one half or more of his support from such

sponsor.

(2) The term ‘‘sponsor’’ means a person—

(A) who is—

(i) a member of the Armed Forces serving on active duty, or

(ii) a full-time civilian officer or employee of the

Department of Defense and a citizen or national of the

United States; and

(B) who is authorized to transport dependents to or

from an overseas area at Government expense and is provided an allowance for living quarters in that area.

(3) The term ‘‘overseas area’’ means any area situated outside the United States.

(4) The term ‘‘United States’’, when used in a geographical

sense, means the several States, the District of Columbia, the

Commonwealth of Puerto Rico, and the possessions of the

United States (excluding the Trust Territory of the Pacific Islands and Midway Island).

(5) The term ‘‘involuntarily separated’’ has the meaning

given that term in section 1141 of title 10, United States Code.

(6) The term ‘‘Director’’ means the Director of the Department of Defense Education Activity.

EFFECTIVE DATES

SEC. 1415. ø20 U.S.C. 921 note¿ (a)(1) Except as provided in

paragraph (2) this title shall take effect on July 1, 1979.

(2) Section 1407(b) and the amendments made by section

1407(c), 1408(a), and 1408(b) shall take effect on October 1, 1978.

(b) Notwithstanding subsection (a) or any other provision of

this title no provision of this title shall be construed to impair or

prevent the taking effect of the provision of any other Act providing

for the transfer of the functions described in this title to an executive department having responsibility for education.
Sec. 355 DEFENSE DEPARTMENT OVERSEAS TEACHERS 1022

b. Pilot Program on Private Operation of Defense

Dependents’ Schools

(Section 355 of the National Defense Authorization Act for Fiscal Year 1996; Public

Law 104–106)

SEC. 355. ø20 U.S.C. 921 note¿ PILOT PROGRAM ON PRIVATE OPERATION OF DEFENSE DEPENDENTS’ SCHOOLS.

(a) PILOT PROGRAM.—The Secretary of Defense may conduct a

pilot program to evaluate the feasibility of using private contractors to operate schools of the defense dependents’ education system

established under section 1402(a) of the Defense Dependents’ Education Act of 1978 (20 U.S.C. 921(a)).

(b) SELECTION OF SCHOOL FOR PROGRAM.—If the Secretary conducts the pilot program, the Secretary shall select one school of the

defense dependents’ education system for participation in the program and provide for the operation of the school by a private contractor for not less than one complete school year.

(c) REPORT.—Not later than 30 days after the end of the first

school year in which the pilot program is conducted, the Secretary

shall submit to Congress a report on the results of the program.

The report shall include the recommendation of the Secretary with

respect to the extent to which other schools of the defense dependents’ education system should be operated by private contractors.

c. Defense Department Overseas Teachers Pay and

Personnel Practices Act

(Public Law 86–91, approved July 17, 1959)

SHORT TITLE

SECTION. 1. This Act may be cited as the ‘‘Defense Department

Overseas Teachers Pay and Personnel Practices Act’’.

DEFINITIONS

SEC. 2. ø20 U.S.C. 901¿ For the purposes of this Act, the

term—

(1) ‘‘teaching position’’ means those duties and responsibilities which—

(A) are performed on a school-year basis principally in

a school operated by the Department of Defense in an

overseas area for dependents of members of the Armed

Forces and dependents of civilian employees of the Department of Defense, or are performed by an individual who

carried out certain teaching activities identified in regulations prescribed by the Secretary of Defense; and

(B) involve—

(i) classroom or other instruction or the supervision or direction of classroom or other instruction; or

(ii) any activity (other than teaching) which requires academic credits in educational theory and

practice equal to the academic credits in educational

theory and practice required for a bachelor’s degree in

education from an accredited institution of higher education; or
1023 Sec. 5 DEFENSE DEPARTMENT OVERSEAS TEACHERS

(iii) any activity in or related to the field of education notwithstanding that academic credits in educational theory and practice are not a formal requirement for the conduct of such activity.

(2) ‘‘teacher’’ means an individual—

(A) who is a citizen of the United States,

(B) who is a civilian, and

(C) who is employed in a teaching position described

in paragraph (1).

(3) ‘‘overseas area’’ means any area situated outside the

United States.

(4) ‘‘United States’’, when used in a geographical sense,

means the several States of the United States of America, the

District of Columbia, Hawaii, the Commonwealth of Puerto

Rico, the Canal Zone, and the possessions of the United States

(excluding the Trust Territory of the Pacific Islands and Midway Islands).

EXEMPTION OF TEACHERS AND TEACHING POSITIONS FROM

CLASSIFICATION ACT OF 1949

[SEC. 3. Omitted—Amendment]

REGULATIONS OF SECRETARY OF DEFENSE

SEC. 4. ø20 U.S.C. 902¿ (a) Not later than the ninetieth day

following the date of enactment of this Act, the Secretary of Defense shall prescribe and issue regulations to carry out the purposes of this Act. Such regulations shall govern—

(1) the establishment of teaching positions;

(2) the fixing of basic compensation for teachers and teaching positions at rates equal to the average of the range of rates

of basic compensation for similar positions of a comparable

level of duties and responsibilities in urban school jurisdictions

in the United States of 100,000 or more population;

(3) the entitlement of teachers to compensation;

(4) the payment of compensation to teachers;

(5) the appointment of teachers;

(6) the conditions of employment of teachers;

(7) the length of the school year or school years applicable

to teaching positions;

(8) the leave system for teachers;

(9) quarters, allowances, and additional compensation for

teachers; and

(10) such other matters as may be relevant and appropriate to the purposes of this Act.

(b) The regulations prescribed and issued by the Secretary of

Defense under subsection (a) of this section shall become effective

on such date as the Secretary of Defense shall prescribe but not

later than the ninetieth day following the date of issuance of such

regulations.

ADMINISTRATION

SEC. 5. ø20 U.S.C. 903¿ (a) The Secretary of Defense shall conduct the employment and salary practices applicable to teachers

and teaching positions in the Department of Defense in accordance
Sec. 6 DEFENSE DEPARTMENT OVERSEAS TEACHERS 1024

with this Act, other applicable law, and the regulations prescribed

and issued by the Secretary of Defense under section 4 of this Act.

(b) Subject to section 203 of the Classification Act of 1949 (5

U.S.C. 1083), the Secretary of Defense—

(1) shall determine the applicability of paragraph (33) of

section 202 of such Act, as added by section 3 of this Act, to

positions and individuals in the Department of Defense; and

(2) shall establish the appropriate annual salary rate in

accordance with this Act for each such position and individual

to which such paragraph (33) is determined to be applicable.

(c) The Secretary of Defense shall fix the basic compensation

for teachers and teaching positions in the Department of Defense

at rates equal to the average of the range of rates of basic compensation for similar positions of a comparable level of duties and

responsibilities in urban school jurisdictions in the United States

of 100,000 or more population.

(d) The Secretary of Defense may prescribe and issue such regulations as he deems appropriate to carry out his functions under

this Act.

LEAVE

SEC. 6. ø20 U.S.C. 904¿ (a) Subject to the regulations prescribed and issued by the Secretary of Defense under section 4 of

this Act, each teacher (other than an individual employed as a substitute teacher) shall be entitled to cumulative leave, with pay,

which shall accrue at the rate of one day for each calendar month,

or part thereof, of a school year, except that if the school year includes more than eight months, any such teacher who shall have

served for the entire school year shall be entitled to ten (or, if such

teacher is employed in a supervisory position or higher, not less

than ten and not more than thirteen) days of cumulative leave with

pay.

(b) Saturdays, Sundays, regularly scheduled holidays, and

other administratively authorized nonwork days shall not be considered to be days of leave for the purposes of subsection (a) of this

section.

(c) Subject to the regulations prescribed and issued by the Secretary of Defense, leave earned by any teacher under subsection (a)

of this section may be used by such teacher—

(1) for maternity purposes,

(2) in the event of the illness of such teacher,

(3) in the event of illness, contagious disease, or death in

the immediate family of such teacher, and

(4) in the event of any personal emergency.

If appropriate advance notice is given of the intended absence of a

teacher, not to exceed three days of such leave may be granted for

any purpose in each school year to such teacher.

(d) Any individual—

(1) who is holding a position which is determined to be a

teaching position, or

(2) who is an employee of the Federal Government or the

municipal government of the District of Columbia who is transferred, promoted, or reappointed, without break in service,

from a position under a different leave system to a teaching position,
1025 Sec. 7 DEFENSE DEPARTMENT OVERSEAS TEACHERS

shall be credited, for the purposes of the leave system provided by

this section, with the annual and sick leave to his credit immediately prior to the effective date of such determination, transfer,

promotion, or reappointment. Sick leave so credited shall be included in the leave provided for in subsection (a) of this section.

Annual leave so credited shall not be included in the leave provided

for in such subsection but shall be used under regulations which

shall be prescribed by the Secretary of Defense.

(e) In any case in which the amount of sick leave, which is to

the credit of any individual under a different leave system immediately prior to the date on which he becomes subject as a teacher

to the leave system provided by this section and which is included

in the leave provided for in subsection (a) of this section, is in excess of the maximum amount of accumulated leave allowable under

subparagraph (2) of such subsection, such excess shall remain to

the credit of such teacher until used, but the use during any leave

year of an amount in excess of the aggregate amount which shall

have accrued during such year shall reduce automatically the maximum allowable amount of accumulated leave at the beginning of

the next leave year until such amount no longer exceeds the maximum amount allowable under subparagraph (2) of subsection (a)

of this section.

(f) Any annual leave remaining, upon his separation from the

service, to the credit of an individual within the purview of this

section shall be liquidated in accordance with the Act of December

21, 1944 (5 U.S.C. 61b and the following), except that leave earned

or included under subsection (a) of this section shall not be liquidated.

(g) In the case of any teacher who is transferred, promoted, or

reappointed, without break in service, to a position under a different leave system, the annual leave, and any other leave earned

or credited under this section, which is to his credit immediately

prior to such transfer, promotion, or reappointment, shall be transferred to his credit in the employing agency on an adjusted basis

in accordance with regulations which shall be prescribed by the

United States Civil Service Commission.

(h) The Director of Dependents’ Education, in consultation with

the Director of the Office of Personnel Management—

(1) shall establish for teachers a voluntary leave transfer

program similar to the one under subchapter III of chapter 63

of title 5, United States Code; and

(2) may establish for teachers a voluntary leave bank program similar to the one under subchapter IV of chapter 63 of

title 5, United States Code.

Only leave described in the last sentence of subsection (c) of this

section (relating to leave that may be used by a teacher for any

purpose) may be transferred under any program established under

this subsection.

QUARTERS, QUARTERS ALLOWANCES, AND STORAGE

SEC. 7. ø20 U.S.C. 905¿ (a) Under regulations which shall be

prescribed by or under authority of the President, each teacher

(other than a teacher employed in a substitute capacity) shall be

entitled, in addition to basic compensation, to quarters, quarters allowance, and storage as provided by this section.
Sec. 8 DEFENSE DEPARTMENT OVERSEAS TEACHERS 1026

(b) Each teacher (other than a teacher employed in a substitute

capacity) shall be entitled, for each school year for which he performs services as a teacher, to quarters or a quarters allowance

equal to those authorized by the Act of June 26, 1930 (5 U.S.C.

118a).

(c) Each teacher (other than a teacher employed in a substitute

capacity) who is performing services as a teacher at the close of a

school year and agrees in writing to serve as a teacher for the next

school year may be authorized, for the recess period immediately

preceding such next school year—

(1) quarters or a quarters allowance equal to those authorized by the Act of June 26, 1930 (5 U.S.C. 118a), or

(2) in lieu of such quarters or quarters allowance, storage

(including packing, drayage, unpacking, and transportation to

and from storage) of his household effects and personal possessions.

(d) If a teacher does not report for service at the beginning of

the next school year, he shall, except for reasons beyond his control

and acceptable to the Department of Defense, be obligated to the

United States in an amount equal to any quarters allowance which

he may have received under subsection (c) of this section or in an

amount equal to the reasonable value of any quarters or storage

which he may have received under such subsection, or both, as the

case may be.

(e) Quarters, quarters allowance, and storage provided under

this section shall be in lieu of any quarters, quarters allowance,

and storage to which he otherwise might be entitled by reason of

employment in another position during any recess period between

two school years.

(f)(1) A teacher assigned to teach at Guantanamo Bay Naval

Station, Cuba, who is not accompanied at such station by any dependent shall be offered for lease any available military family

housing at such station that is suitable for occupancy by the teacher and is not needed to house members of the armed forces and dependents accompanying them or other civilian personnel and any

dependents accompanying them.

(2) For any period for which military family housing is leased

under paragraph (1) to a teacher described in such paragraph, the

teacher shall receive a quarters allowance in the amount determined under subsection (b). The teacher is entitled to such quarters allowance without regard to whether other Government furnished quarters are available for occupancy by the teacher without

charge to the teacher.

COST-OF-LIVING ALLOWANCE AND POST DIFFERENTIAL

SEC. 8. ø20 U.S.C. 906¿ (a) Under regulations which shall be

prescribed by or under authority of the President, each teacher

(other than a teacher employed in a substitute capacity) shall be

entitled, in addition to basic compensation, to—

(1) cost-of-living allowances equal to those authorized by

section 5924 of title 5, United States Code, and

(2) additional compensation equal to that authorized under

section 207 of the Independent Offices Appropriation Act, 1949

(5 U.S.C. 118h).
1027 Sec. 11 DEFENSE DEPARTMENT OVERSEAS TEACHERS

(b) The cost-of-living allowances and additional compensation

provided under subsection (a) of this section for any teacher shall

be based on the teaching position in which he rendered services on

a school-year basis, except that, if such teacher is employed in another position during any recess period between two school years,

such allowances and compensation for such recess period shall be

based on the position in which he is employed during such recess

period.

DETERMINATION OF PER ANNUM SALARY RATES OF TEACHING

POSITIONS FOR PURPOSES OF CLASSIFICATION ACT OF 1949

SEC. 9. For the purposes of the application of section 802(a) of

the Classification Act of 1949 (5 U.S.C. 1132(a)) to any individual

holding a teaching position who comes within the purview of any

provision of such section 802(a), the rates of pay established for

such position shall be deemed to have been increased by 20 per

centum to determine the per annum salary rate of such position.

APPLICABILITY OF CERTAIN EXISTING LAW

SEC. 10. ø20 U.S.C. 907¿ (a) The Annual and Sick Leave Act

of 1951, as amended (5 U.S.C. 2061 and the following), and the

Federal Employees Pay Act of 1945, as amended (5 U.S.C. 901 and

the following), shall not apply to teachers and teaching positions.

(b) In the case of any teacher who—

(1) is performing services as a teacher at the close of a

school year,

(2) agrees in writing to serve as a teacher for the next

school year, and

(3) is employed in another position in the recess period immediately preceding such next school year, or, during such recess period, receives quarters, allowances, or additional compensation referred to in sections 7 and 8 of this Act, or both,

as the case may be,

section 301 of the Dual Compensation Act shall not apply to such

teacher by reason of any such employment during a recess period

or any such receipt of quarters, allowances, or additional compensation, or both, as the case may be.

(c) Notwithstanding any provision of law, employment of a

teacher in the recess period between two school years in a position

other than the teaching position in which he rendered service in

the school year immediately preceding such recess period shall not

be subject to the Federal Employees’ Group Life Insurance Act of

1954 (5 U.S.C. 2091–2103) or to the Civil Service Retirement Act

(5 U.S.C. 2251–2267).

SAVINGS PROVISION

SEC. 11. The enactment of this Act shall not affect—

(1) any teaching position existing immediately prior to the

effective date of the regulations prescribed and issued by the

Secretary of Defense under section 4 of this Act.

(2) the compensation attached to such teaching position, or

(3) any incumbent thereof, his appointment thereto, or his

right to receive the compensation attached thereto,

until appropriate action is taken under section 5 of this Act.
Sec. 12 DEFENSE DEPARTMENT OVERSEAS TEACHERS 1028

EFFECTIVE DATES

SEC. 12. (a) This section and sections 1, 2, 4, and 11 shall become effective on the date of enactment of this Act.

(b) Sections 3, 5, 6, 7, 8, 9 and 10 shall become effective on the

effective date of the regulations prescribed and issued by the Secretary of Defense under section 4 to this Act.
1029

3. IMPACT AID

a. Title VIII of the Elementary and Secondary Education Act

of 1965

TITLE VIII—IMPACT AID

SEC. 8001. ø20 U.S.C. 7701¿ PURPOSE.

In order to fulfill the Federal responsibility to assist with the

provision of educational services to federally connected children in

a manner that promotes control by local educational agencies with

little or no Federal or State involvement, because certain activities

of the Federal Government, such as activities to fulfill the responsibilities of the Federal Government with respect to Indian tribes

and activities under section 511 of the Servicemembers Civil Relief

Act, place a financial burden on the local educational agencies serving areas where such activities are carried out, and to help such

children meet challenging State standards, it is the purpose of this

title to provide financial assistance to local educational agencies

that—

(1) experience a substantial and continuing financial burden due to the acquisition of real property by the United

States;

(2) educate children who reside on Federal property and

whose parents are employed on Federal property;

(3) educate children of parents who are in the military

services and children who live in low-rent housing;

(4) educate heavy concentrations of children whose parents

are civilian employees of the Federal Government and do not

reside on Federal property; or

(5) need special assistance with capital expenditures for

construction activities because of the enrollments of substantial numbers of children who reside on Federal lands and because of the difficulty of raising local revenue through bond

referendums for capital projects due to the inability to tax Federal property.

SEC. 8002. ø20 U.S.C. 7702¿ PAYMENTS RELATING TO FEDERAL ACQUISITION OF REAL PROPERTY.

(a) IN GENERAL.—Where the Secretary, after consultation with

any local educational agency and with the appropriate State educational agency, determines for a fiscal year ending prior to October 1, 2003—

(1) that the United States owns Federal property in the

local educational agency, and that such property—

(A) has been acquired by the United States since 1938;
Sec. 8002 IMPACT AID UNDER ESEA OF 1965 1030

(B) was not acquired by exchange for other Federal

property in the local educational agency which the United

States owned before 1939; and

(C) had an assessed value (determined as of the time

or times when so acquired) aggregating 10 percent or more

of the assessed value of—

(i) all real property in the local educational agency

(similarly determined as of the time or times when

such Federal property was so acquired); or

(ii) all real property in the local educational agency as assessed in the first year preceding or succeeding

acquisition, whichever is greater, only if—

(I) the assessment of all real property in the

local educational agency is not made at the same

time or times that such Federal property was so

acquired and assessed; and

(II) State law requires an assessment be made

of property so acquired; and

(2) that such agency is not being substantially compensated for the loss in revenue resulting from such ownership

by increases in revenue accruing to the agency from the conduct of Federal activities with respect to such Federal property,

then such agency shall be eligible to receive the amount described

in subsection (b).

(b) AMOUNT.—

(1) IN GENERAL.—(A)(i)(I) Subject to subclauses (II) and

(III), the amount that a local educational agency shall be paid

under subsection (a) for a fiscal year shall be calculated in accordance with paragraph (2).

(II) Except as provided in subclause (III), the Secretary

may not reduce the amount of a payment under this section to

a local educational agency for a fiscal year by (aa) the amount

equal to the amount of revenue, if any, the agency received

during the previous fiscal year from activities conducted on

Federal property eligible under this section and located in a

school district served by the agency, including amounts received from any Federal department or agency (other than the

Department of Education) from such activities, by reason of receipt of such revenue, or (bb) any other amount by reason of

receipt of such revenue.

(III) If the amount equal to the sum of (aa) the proposed

payment under this section to a local educational agency for a

fiscal year and (bb) the amount of revenue described in subclause (II)(aa) received by the agency during the previous fiscal

year, exceeds the maximum amount the agency is eligible to

receive under this section for the fiscal year involved, then the

Secretary shall reduce the amount of the proposed payment

under this section by an amount equal to such excess amount.

(ii) For purposes of clause (i), the amount of revenue that

a local educational agency receives during the previous fiscal

year from activities conducted on Federal property shall not include payments received by the agency from the Secretary of

Defense to support—
1031 Sec. 8002 IMPACT AID UNDER ESEA OF 1965

(I) the operation of a domestic dependent elementary

or secondary school; or

(II) the provision of a free public education to dependents of members of the Armed Forces residing on or near

a military installation.

(B) If funds appropriated under section 8014(a) are insufficient to pay the amount determined under subparagraph (A),

the Secretary shall calculate the payment for each eligible local

educational agency in accordance with subsection (h).

(C) Notwithstanding any other provision of this subsection,

a local educational agency may not be paid an amount under

this section that, when added to the amount such agency receives under section 8003(b), exceeds the maximum amount

that such agency is eligible to receive for such fiscal year under

section 8003(b)(1)(C), or the maximum amount that such agency is eligible to receive for such fiscal year under this section,

whichever is greater.

(2) APPLICATION OF CURRENT LEVIED REAL PROPERTY TAX

RATE.—In calculating the amount that a local educational

agency is eligible to receive for a fiscal year, the Secretary

shall apply the current levied real property tax rate for current

expenditures levied by fiscally independent local educational

agencies, or imputed for fiscally dependent local educational

agencies, to the current annually determined aggregate assessed value of such acquired Federal property.

(3) DETERMINATION OF AGGREGATE ASSESSED VALUE.—Such

aggregate assessed value of such acquired Federal property

shall be determined on the basis of the highest and best use

of property adjacent to such acquired Federal property as of

the time such value is determined, and provided to the Secretary, by the local official responsible for assessing the value

of real property located in the jurisdiction of such local educational agency for the purpose of levying a property tax.

(c) APPLICABILITY TO TENNESSEE VALLEY AUTHORITY ACT.—For

the purpose of this section, any real property with respect to which

payments are being made under section 13 of the Tennessee Valley

Authority Act of 1933 shall not be regarded as Federal property.

(d) OWNERSHIP BY UNITED STATES.—The United States shall

be deemed to own Federal property for the purposes of this Act,

where—

(1) prior to the transfer of Federal property, the United

States owned Federal property meeting the requirements of

subparagraphs (A), (B), and (C) of subsection (a)(1); and

(2) the United States transfers a portion of the property

referred to in paragraph (1) to another nontaxable entity, and

the United States—

(A) restricts some or any construction on such property;

(B) requires that the property be used in perpetuity

for the public purposes for which the property was conveyed;

(C) requires the grantee of the property to report to

the Federal Government (or its agent) regarding information on the use of the property;
Sec. 8002 IMPACT AID UNDER ESEA OF 1965 1032

(D) except with the approval of the Federal Government (or its agent), prohibits the sale, lease, assignment,

or other disposal of the property unless such sale, lease,

assignment, or other disposal is to another eligible government agency; and

(E) reserves to the Federal Government a right of reversion at any time the Federal Government (or its agent)

deems it necessary for the national defense.

(e) LOCAL EDUCATIONAL AGENCY CONTAINING FOREST SERVICE

LAND AND SERVING CERTAIN COUNTIES.—Beginning with fiscal year

1995, a local educational agency shall be deemed to meet the requirements of subsection (a)(1)(C) if such local educational agency

meets the following requirements:

(1) ACREAGE AND ACQUISITION BY THE FOREST SERVICE.— The local educational agency serves a school district that contains between 20,000 and 60,000 acres of land that has been

acquired by the Forest Service of the Department of Agriculture between 1915 and 1990, as demonstrated by written

evidence from the Forest Service satisfactory to the Secretary.

(2) COUNTY CHARTER.—The local educational agency serves

a county chartered under State law in 1875 or 1890.

(f) SPECIAL RULE.—(1) Beginning with fiscal year 1994, and

notwithstanding any other provision of law limiting the period during which fiscal year 1994 funds may be obligated, the Secretary

shall treat the local educational agency serving the Wheatland R–

II School District, Wheatland, Missouri, as meeting the eligibility

requirements of section 2(a)(1)(C) of the Act of September 30, 1950

(Public Law 874, 81st Congress) (as such section was in effect on

the day preceding the date of enactment of the Improving America’s Schools Act of 1994) (20 U.S.C. 237(a)(1)(C)) or subsection

(a)(1)(C).

(2) For each fiscal year beginning with fiscal year 1999,

the Secretary shall treat the Webster School District, Day

County, South Dakota as meeting the eligibility requirements

of subsection (a)(1)(C) of this section.

(3) For each fiscal year beginning with fiscal year 2000,

the Secretary shall treat the Central Union, California; Island,

California; Hill City, South Dakota; and Wall, South Dakota

local educational agencies as meeting the eligibility requirements of subsection (a)(1)(C) of this section.

(4) For the purposes of payments under this section for

each fiscal year beginning with fiscal year 2000, the Secretary

shall treat the Hot Springs, South Dakota local educational

agency as if it had filed a timely application under section 8002

of the Elementary and Secondary Education Act of 1965 for fiscal year 1994 if the Secretary has received the fiscal year 1994

application, as well as Exhibits A and B not later than December 1, 1999.

(5) For purposes of payments under this section for each

fiscal year beginning with fiscal year 2000, the Secretary shall

treat the Hueneme, California local educational agency as if it

had filed a timely application under section 8002 of the Elementary and Secondary Education Act of 1965 if the Secretary

has received the fiscal year 1995 application not later than December 1, 1999.
1033 Sec. 8002 IMPACT AID UNDER ESEA OF 1965

(g) FORMER DISTRICTS.— (1) IN GENERAL.—Where the school district of any local

educational agency described in paragraph (2) is formed at any

time after 1938 by the consolidation of two or more former

school districts, such agency may elect (at any time such agency files an application under section 8005) for any fiscal year

after fiscal year 1994 to have (A) the eligibility of such local

educational agency, and (B) the amount which such agency

shall be eligible to receive, determined under this section only

with respect to such of the former school districts comprising

such consolidated school districts as such agency shall designate in such election.

(2) ELIGIBLE LOCAL EDUCATIONAL AGENCIES.—A local educational agency referred to in paragraph (1) is any local

educational agency that, for fiscal year 1994 or any preceding

fiscal year, applied for and was determined eligible under section 2(c) of the Act of September 30, 1950 (Public Law 874,

81st Congress) as such section was in effect for such fiscal

year.

(h) PAYMENTS WITH RESPECT TO FISCAL YEARS IN WHICH IN- SUFFICIENT FUNDS ARE APPROPRIATED.—For any fiscal year for

which the amount appropriated under section 8014(a) is insufficient to pay to each eligible local educational agency the full

amount determined under subsection (b), the Secretary shall make

payments to each local educational agency under this section as follows:

(1) FOUNDATION PAYMENTS FOR PRE-1995 RECIPIENTS.—

(A) IN GENERAL.—The Secretary shall first make a

foundation payment to each local educational agency that

is eligible to receive a payment under this section for the

fiscal year involved and that filed, or has been determined

pursuant to statute to have filed a timely application, and

met, or has been determined pursuant to statute to meet,

the eligibility requirements of section 2(a)(1)(C) of the Act

of September 30, 1950 (Public Law 874, 81st Congress) (as

such section was in effect on the day preceding the date

of the enactment of the Improving America’s Schools Act

of 1994) for any of the fiscal years 1989 through 1994.

(B) AMOUNT.—The amount of a payment under subparagraph (A) for a local educational agency shall be equal

to 38 percent of the local educational agency’s maximum

entitlement amount under section 2 of the Act of September 30, 1950, for fiscal year 1994 (or if the local educational agency did not meet, or has not been determined

pursuant to statute to meet, the eligibility requirements of

section 2(a)(1)(C) of the Act of September 30, 1950 for fiscal year 1994, the local educational agency’s maximum entitlement amount under such section 2 for the most recent

fiscal year preceding 1994).

(C) INSUFFICIENT APPROPRIATIONS.—If the amount appropriated under section 8014(a) is insufficient to pay the

full amount determined under this paragraph for all eligible local educational agencies for the fiscal year, then the

Secretary shall ratably reduce the payment to each local

educational agency under this paragraph.
Sec. 8002 IMPACT AID UNDER ESEA OF 1965 1034

(2) PAYMENTS FOR 1995 RECIPIENTS.—

(A) IN GENERAL.—From any amounts remaining after

making payments under paragraph (1) for the fiscal year

involved, the Secretary shall make a payment to each eligible local educational agency that received a payment

under this section for fiscal year 1995, or whose application under this section for fiscal year 1995 was determined

pursuant to statute to be timely filed for purposes of payments for subsequent fiscal years.

(B) AMOUNT.—The amount of a payment under subparagraph (A) for a local educational agency shall be determined as follows:

(i) Calculate the difference between the amount

appropriated to carry out this section for fiscal year

1995 and the total amount of foundation payments

made under paragraph (1) for the fiscal year.

(ii) Determine the percentage share for each local

educational agency described in subparagraph (A) by

dividing the assessed value of the Federal property of

the local educational agency for fiscal year 1995 determined in accordance with subsection (b)(3), by the

total eligible national assessed value of the eligible

Federal property of all such local educational agencies

for fiscal year 1995, as so determined.

(iii) Multiply the percentage share described in

clause (ii) for the local educational agency by the

amount determined under clause (i).

(3) SUBSECTION (i) RECIPIENTS.—From any funds remaining after making payments under paragraphs (1) and (2) for

the fiscal year involved, the Secretary shall make payments in

accordance with subsection (i).

(4) REMAINING FUNDS.—From any funds remaining after

making payments under paragraphs (1), (2), and (3) for the fiscal year involved—

(A) the Secretary shall make a payment to each local

educational agency that received a foundation payment

under paragraph (1) for the fiscal year involved in an

amount that bears the same relation to 25 percent of the

remainder as the amount the local educational agency received under paragraph (1) for the fiscal year involved

bears to the amount all local educational agencies received

under paragraph (1) for the fiscal year involved; and

(B) the Secretary shall make a payment to each local

educational agency that is eligible to receive a payment

under this section for the fiscal year involved in an

amount that bears the same relation to 75 percent of the

remainder as a percentage share determined for the local

educational agency (by dividing the maximum amount that

the agency is eligible to receive under subsection (b) by the

total of the maximum amounts for all such agencies) bears

to the percentage share determined (in the same manner)

for all local educational agencies eligible to receive a payment under this section for the fiscal year involved, except

that, for the purpose of calculating a local educational
1035 Sec. 8002 IMPACT AID UNDER ESEA OF 1965

agency’s maximum amount under subsection (b), data from

the most current fiscal year shall be used.

(i) SPECIAL PAYMENTS.— (1) IN GENERAL.—For any fiscal year beginning with fiscal

year 2000 for which the amount appropriated to carry out this

section exceeds the amount so appropriated for fiscal year 1996

and for which subsection (b)(1)(B) applies, the Secretary shall

use the remainder described in subsection (h)(3) for the fiscal

year involved (not to exceed the amount equal to the difference

between (A) the amount appropriated to carry out this section

for fiscal year 1997 and (B) the amount appropriated to carry

out this section for fiscal year 1996) to increase the payment

that would otherwise be made under this section to not more

than 50 percent of the maximum amount determined under

subsection (b) for any local educational agency described in

paragraph (2).

(2) LOCAL EDUCATIONAL AGENCY DESCRIBED.—A local educational agency described in this paragraph is a local educational agency that—

(A) received a payment under this section for fiscal

year 1996;

(B) serves a school district that contains all or a portion of a United States military academy;

(C) serves a school district in which the local tax assessor has certified that at least 60 percent of the real

property is federally owned; and

(D) demonstrates to the satisfaction of the Secretary

that such agency’s per-pupil revenue derived from local

sources for current expenditures is not less than that revenue for the preceding fiscal year.

ø(j) Repealed by section 801(d) of P.L. 107–110 (115 Stat.

1948)¿

(k) SPECIAL RULE.—For purposes of payments under this section for each fiscal year beginning with fiscal year 1998—

(1) the Secretary shall, for the Stanley County, South Dakota local educational agency, calculate payments as if subsection (e) had been in effect for fiscal year 1994; and

(2) the Secretary shall treat the Delaware Valley, Pennsylvania local educational agency as if it had filed a timely application under section 2 of Public Law 81–874 for fiscal year

1994.

(l) PRIOR YEAR DATA.—Notwithstanding any other provision of

this section, in determining the eligibility of a local educational

agency for a payment under subsection (b) or (h)(4)(B) of this section for a fiscal year, and in calculating the amount of such payment, the Secretary—

(1) shall use data from the prior fiscal year with respect

to the Federal property involved, including data with respect

to the assessed value of the property and the real property tax

rate for current expenditures levied against or imputed to the

property; and

(2) shall use data from the second prior fiscal year with respect to determining the amount of revenue referred to in subsection (b)(1)(A)(i).

(m) ELIGIBILITY.—
Sec. 8003 IMPACT AID UNDER ESEA OF 1965 1036

(1) OLD FEDERAL PROPERTY.—Except as provided in paragraph (2), a local educational agency that is eligible to receive

a payment under this section for Federal property acquired by

the Federal Government, before the date of the enactment of

the Impact Aid Reauthorization Act of 2000, shall be eligible

to receive the payment only if the local educational agency submits an application for a payment under this section not later

than 5 years after the date of the enactment of such Act.

(2) COMBINED FEDERAL PROPERTY.—A local educational

agency that is eligible to receive a payment under this section

for Federal property acquired by the Federal Government before the date of the enactment of the Impact Aid Reauthorization Act of 2000 shall be eligible to receive the payment if—

(A) the Federal property, when combined with other

Federal property in the school district served by the local

educational agency acquired by the Federal Government

after the date of the enactment of such Act, meets the requirements of subsection (a); and

(B) the local educational agency submits an application for a payment under this section not later than 5

years after the date of acquisition of the Federal property

acquired after the date of the enactment of such Act.

(3) NEW FEDERAL PROPERTY.—A local educational agency

that is eligible to receive a payment under this section for Federal property acquired by the Federal Government after the

date of the enactment of the Impact Aid Reauthorization Act

of 2000 shall be eligible to receive the payment only if the local

educational agency submits an application for a payment

under this section not later than 5 years after the date of acquisition.

(n) LOSS OF ELIGIBILITY.— (1) IN GENERAL.—Notwithstanding any other provision of

this section, the Secretary shall make a minimum payment to

a local educational agency described in paragraph (2), for the

first fiscal year that the agency loses eligibility for assistance

under this section as a result of property located within the

school district served by the agency failing to meet the definition of Federal property under section 8013(5)(C)(iii), in an

amount equal to 90 percent of the amount received by the

agency under this section for the preceding year.

(2) LOCAL EDUCATIONAL AGENCY DESCRIBED.—A local educational agency described in this paragraph is an agency

that—

(A) was eligible for, and received, a payment under

this section for fiscal year 2002; and

(B) beginning in fiscal year 2003 or a subsequent fiscal

year, is no longer eligible for payments under this section

as provided for in subsection (a)(1)(C) as a result of the

transfer of the Federal property involved to a non-Federal

entity.

SEC. 8003. ø20 U.S.C. 7703¿ PAYMENTS FOR ELIGIBLE FEDERALLY

CONNECTED CHILDREN.

(a) COMPUTATION OF PAYMENT.—

(1) IN GENERAL.—For the purpose of computing the

amount that a local educational agency is eligible to receive
1037 Sec. 8003 IMPACT AID UNDER ESEA OF 1965

under subsection (b) or (d) for any fiscal year, the Secretary

shall determine the number of children who were in average

daily attendance in the schools of such agency, and for whom

such agency provided free public education, during the preceding school year and who, while in attendance at such

schools—

(A)(i) resided on Federal property with a parent employed on Federal property situated in whole or in part

within the boundaries of the school district of such agency;

or

(ii) resided on Federal property with a parent who is

an official of, and accredited by, a foreign government and

is a foreign military officer;

(B) resided on Federal property and had a parent on

active duty in the uniformed services (as defined in section

101 of title 37, United States Code);

(C) resided on Indian lands;

(D)(i) had a parent on active duty in the uniformed

services (as defined by section 101 of title 37, United

States Code) but did not reside on Federal property; or

(ii) had a parent who is an official of, and has been accredited by, a foreign government and is a foreign military

officer but did not reside on Federal property;

(E) resided in low-rent housing;

(F) resided on Federal property and is not described in

subparagraph (A) or (B); or

(G) resided with a parent employed on Federal property situated—

(i) in whole or in part in the county in which such

agency is located, or in whole or in part in such agency

if such agency is located in more than one county; or

(ii) if not in such county, in whole or in part in the

same State as such agency.

(2) DETERMINATION OF WEIGHTED STUDENT UNITS.—For the

purpose of computing the basic support payment under subsection (b), the Secretary shall calculate the total number of

weighted student units for a local educational agency by adding together the results obtained by the following computations:

(A) Multiply the number of children described in subparagraphs (A) and (B) of paragraph (1) by a factor of 1.0.

(B) Multiply the number of children described in paragraph (1)(C) by a factor of 1.25.

(C) Multiply the number of children described in subparagraphs (A) and (B) of paragraph (1) by a factor of .35

if the local educational agency has—

(i) a number of such children described in such

subparagraphs which exceeds 6,500; and

(ii) an average daily attendance for all children

which exceeds 100,000.

(D) Multiply the number of children described in subparagraph (D) of paragraph (1) by a factor of .20.

(E) Multiply the number of children described in subparagraph (E) of paragraph (1) by a factor of .10.
Sec. 8003 IMPACT AID UNDER ESEA OF 1965 1038

(F) Multiply the number of children described in subparagraphs (F) and (G) of paragraph (1) by a factor of .05.

(3) SPECIAL RULE.—The Secretary shall only compute a

payment for a local educational agency for children described

in subparagraph (F) or (G) of paragraph (1) if the number of

such children equals or exceeds 1,000 or such number equals

or exceeds 10 percent of the total number of students in average daily attendance in the schools of such agency.

(4) MILITARY INSTALLATION AND INDIAN HOUSING UNDER- GOING RENOVATION OR REBUILDING.— (A) IN GENERAL.—(i) For purposes of computing the

amount of a payment for a local educational agency for

children described in paragraph (1)(D)(i), the Secretary

shall consider such children to be children described in

paragraph (1)(B) if the Secretary determines, on the basis

of a certification provided to the Secretary by a designated

representative of the Secretary of Defense, that such children would have resided in housing on Federal property in

accordance with paragraph (1)(B) except that such housing

was undergoing renovation or rebuilding on the date for

which the Secretary determines the number of children

under paragraph (1).

(ii) For purposes of computing the amount of a payment for a local educational agency that received a payment for children that resided on Indian lands in accordance with paragraph (1)(C) for the fiscal year prior to the

fiscal year for which the local educational agency is making an application, the Secretary shall consider such children to be children described in paragraph (1)(C) if the

Secretary determines, on the basis of a certification provided to the Secretary by a designated representative of

the Secretary of the Interior or the Secretary of Housing

and Urban Development, that such children would have

resided in housing on Indian lands in accordance with

paragraph (1)(C) except that such housing was undergoing

renovation or rebuilding on the date for which the Secretary determines the number of children under paragraph

(1).

(B) LIMITATIONS.—(i)(I) Children described in paragraph (1)(D)(i) may be deemed to be children described in

paragraph (1)(B) with respect to housing on Federal property undergoing renovation or rebuilding in accordance

with subparagraph (A)(i) for a period not to exceed 3 fiscal

years.

(II) The number of children described in paragraph

(1)(D)(i) who are deemed to be children described in paragraph (1)(B) with respect to housing on Federal property

undergoing renovation or rebuilding in accordance with

subparagraph (A)(i) for any fiscal year may not exceed the

maximum number of children who are expected to occupy

that housing upon completion of the renovation or rebuilding.

(ii)(I) Children that resided on Indian lands in accordance with paragraph (1)(C) for the fiscal year prior to the

fiscal year for which the local educational agency is mak-
1039 Sec. 8003 IMPACT AID UNDER ESEA OF 1965

ing an application may be deemed to be children described

in paragraph (1)(C) with respect to housing on Indian

lands undergoing renovation or rebuilding in accordance

with subparagraph (A)(ii) for a period not to exceed 3 fiscal

years.

(II) The number of children that resided on Indian

lands in accordance with paragraph (1)(C) for the fiscal

year prior to the fiscal year for which the local educational

agency is making an application who are deemed to be

children described in paragraph (1)(C) with respect to

housing on Indian lands undergoing renovation or rebuilding in accordance with subparagraph (A)(ii) for any fiscal

year may not exceed the maximum number of children

who are expected to occupy that housing upon completion

of the renovation or rebuilding.

(5) MILITARY ‘‘BUILD TO LEASE’’ PROGRAM HOUSING.— (A) IN GENERAL.—For purposes of computing the

amount of payment for a local educational agency for children identified under paragraph (1), the Secretary shall

consider children residing in housing initially acquired or

constructed under the former section 2828(g) of title 10,

United States Code (commonly known as the ‘‘Build to

Lease’’ program), as added by section 801 of the Military

Construction Authorization Act, 1984, to be children described under paragraph (1)(B) if the property described is

within the fenced security perimeter of the military facility

upon which such housing is situated.

(B) ADDITIONAL REQUIREMENTS.—If the property described in subparagraph (A) is not owned by the Federal

Government, is subject to taxation by a State or political

subdivision of a State, and thereby generates revenues for

a local educational agency that is applying to receive a

payment under this section, then the Secretary—

(i) shall require the local educational agency to

provide certification from an appropriate official of the

Department of Defense that the property is being used

to provide military housing; and

(ii) shall reduce the amount of the payment under

this section by an amount equal to the amount of revenue from such taxation received in the second preceding fiscal year by such local educational agency,

unless the amount of such revenue was taken into account by the State for such second preceding fiscal

year and already resulted in a reduction in the

amount of State aid paid to such local educational

agency.

(b) BASIC SUPPORT PAYMENTS AND PAYMENTS WITH RESPECT

TO FISCAL YEARS IN WHICH INSUFFICIENT FUNDS ARE APPROPRIATED.—

(1) BASIC SUPPORT PAYMENTS.—

(A) IN GENERAL.—From the amount appropriated

under section 8014(b) for a fiscal year, the Secretary is authorized to make basic support payments to eligible local

educational agencies with children described in subsection

(a).
Sec. 8003 IMPACT AID UNDER ESEA OF 1965 1040

(B) ELIGIBILITY.—A local educational agency is eligible

to receive a basic support payment under subparagraph

(A) for a fiscal year with respect to a number of children

determined under subsection (a)(1) only if the number of

children so determined with respect to such agency

amounts to the lesser of—

(i) at least 400 such children; or

(ii) a number of such children which equals at

least 3 percent of the total number of children who

were in average daily attendance, during such year, at

the schools of such agency and for whom such agency

provided free public education.

(C) MAXIMUM AMOUNT.—The maximum amount that a

local educational agency is eligible to receive under this

paragraph for any fiscal year is the sum of the total

weighted student units, as computed under subsection

(a)(2), multiplied by the greater of—

(i) one-half of the average per-pupil expenditure of

the State in which the local educational agency is located for the third fiscal year preceding the fiscal year

for which the determination is made;

(ii) one-half of the average per-pupil expenditure

of all of the States for the third fiscal year preceding

the fiscal year for which the determination is made;

(iii) the comparable local contribution rate certified by the State, as determined under regulations

prescribed to carry out the Act of September 30, 1950

(Public Law 874, 81st Congress), as such regulations

were in effect on January 1, 1994; or

(iv) the average per-pupil expenditure of the State

in which the local educational agency is located, multiplied by the local contribution percentage.

(D) DATA.—If satisfactory data from the third preceding fiscal year are not available for any of the expenditures described in clause (i) or (ii) of subparagraph (C), the

Secretary shall use data from the most recent fiscal year

for which data that are satisfactory to the Secretary are

available.

(E) SPECIAL RULE.—For purposes of determining the

comparable local contribution rate under subparagraph

(C)(iii) for a local educational agency described in section

222.39(c)(3) of title 34, Code of Federal Regulations, that

had its comparable local contribution rate for fiscal year

1998 calculated pursuant to section 222.39 of title 34, Code

of Federal Regulations, the Secretary shall determine such

comparable local contribution rate as the rate upon which

payments under this subsection for fiscal year 2000 were

made to the local educational agency adjusted by the percentage increase or decrease in the per pupil expenditure

in the State serving the local educational agency calculated on the basis of the second most recent preceding

school year compared to the third most recent preceding

school year for which school year data are available.

(F) INCREASE IN LOCAL CONTRIBUTION RATE DUE TO

UNUSUAL GEOGRAPHIC FACTORS.—If the current expendi-
1041 Sec. 8003 IMPACT AID UNDER ESEA OF 1965

tures in those local educational agencies which the Secretary has determined to be generally comparable to the

local educational agency for which a computation is made

under subparagraph (C) are not reasonably comparable because of unusual geographical factors which affect the current expenditures necessary to maintain, in such agency,

a level of education equivalent to that maintained in such

other agencies, then the Secretary shall increase the local

contribution rate for such agency under subparagraph

(C)(iii) by such an amount which the Secretary determines

will compensate such agency for the increase in current expenditures necessitated by such unusual geographical factors. The amount of any such supplementary payment may

not exceed the per-pupil share (computed with regard to

all children in average daily attendance), as determined by

the Secretary, of the increased current expenditures necessitated by such unusual geographic factors.

(G) Beginning with fiscal year 2002, for the purpose of

calculating a payment under this paragraph for a local

educational agency whose local contribution rate was computed under subparagraph (C)(iii) for the previous year,

the Secretary shall use a local contribution rate that is not

less than 95 percent of the rate that the LEA received for

the preceding year.

(2) BASIC SUPPORT PAYMENTS FOR HEAVILY IMPACTED

LOCAL EDUCATIONAL AGENCIES.—

(A) IN GENERAL.—(i) From the amount appropriated

under section 8014(b) for a fiscal year, the Secretary is authorized to make basic support payments to eligible heavily impacted local educational agencies with children described in subsection (a).

(ii) A local educational agency that receives a basic

support payment under this paragraph for a fiscal year

shall not be eligible to receive a basic support payment

under paragraph (1) for that fiscal year.

(B) ELIGIBILITY FOR CONTINUING HEAVILY IMPACTED

LOCAL EDUCATIONAL AGENCIES.—

(i) IN GENERAL.—A heavily impacted local educational agency is eligible to receive a basic support

payment under subparagraph (A) with respect to a

number of children determined under subsection (a)(1)

if the agency—

(I) received an additional assistance payment

under subsection (f ) (as such subsection was in effect on the day before the date of the enactment

of the Impact Aid Reauthorization Act of 2000) for

fiscal year 2000; and

(II)(aa) is a local educational agency whose

boundaries are the same as a Federal military installation;

(bb) has an enrollment of children described

in subsection (a)(1) that constitutes a percentage

of the total student enrollment of the agency

which is not less than 35 percent, has a per-pupil

expenditure that is less than the average per-
Sec. 8003 IMPACT AID UNDER ESEA OF 1965 1042

pupil expenditure of the State in which the agency

is located or the average per-pupil expenditure of

all States (whichever average per-pupil expenditure is greater), except that a local educational

agency with a total student enrollment of less

than 350 students shall be deemed to have satisfied such per-pupil expenditure requirement, and

has a tax rate for general fund purposes which is

not less than 95 percent of the average tax rate

for general fund purposes of local educational

agencies in the State;

(cc) has an enrollment of children described in

subsection (a)(1) that constitutes a percentage of

the total student enrollment of the agency which

is not less than 30 percent, and has a tax rate for

general fund purposes which is not less than 125

percent of the average tax rate for general fund

purposes for comparable local educational agencies in the State;

(dd) has a total student enrollment of not less

than 25,000 students, of which not less than 50

percent are children described in subsection (a)(1)

and not less than 6,000 of such children are children described in subparagraphs (A) and (B) of

subsection (a)(1); or

(ee) meets the requirements of subsection

(f )(2) applying the data requirements of subsection (f )(4) (as such subsections were in effect on

the day before the date of the enactment of the

Impact Aid Reauthorization Act of 2000).

(ii) LOSS OF ELIGIBILITY.—A heavily impacted local

educational agency that met the requirements of

clause (i) for a fiscal year shall be ineligible to receive

a basic support payment under subparagraph (A) if

the agency fails to meet the requirements of clause (i)

for a subsequent fiscal year, except that such agency

shall continue to receive a basic support payment

under this paragraph for the fiscal year for which the

ineligibility determination is made.

(iii) RESUMPTION OF ELIGIBILITY.—A heavily impacted local educational agency described in clause (i)

that becomes ineligible under such clause for 1 or

more fiscal years may resume eligibility for a basic

support payment under this paragraph for a subsequent fiscal year only if the agency meets the requirements of clause (i) for that subsequent fiscal year, except that such agency shall not receive a basic support

payment under this paragraph until the fiscal year

succeeding the fiscal year for which the eligibility determination is made.

(C) ELIGIBILITY FOR NEW HEAVILY IMPACTED LOCAL

EDUCATIONAL AGENCIES.—

(i) IN GENERAL.—A heavily impacted local educational agency that did not receive an additional assistance payment under subsection (f ) (as such sub-
1043 Sec. 8003 IMPACT AID UNDER ESEA OF 1965

section was in effect on the day before the date of the

enactment of the Impact Aid Reauthorization Act of

2000) for fiscal year 2000 is eligible to receive a basic

support payment under subparagraph (A) for fiscal

year 2002 and any subsequent fiscal year with respect

to a number of children determined under subsection

(a)(1) only if the agency is a local educational agency

whose boundaries are the same as a Federal military

installation (or if the agency is a qualified local educational agency as described in clause (iv)), or the

agency—

(I) has an enrollment of children described in

subsection (a)(1) that constitutes a percentage of

the total student enrollment of the agency that—

(aa) is not less than 50 percent if such

agency receives a payment on behalf of children described in subparagraphs (F) and (G)

of such subsection; or

(bb) is not less than 40 percent if such

agency does not receive a payment on behalf

of such children;

(II)(aa) for a local educational agency that has

a total student enrollment of 350 or more students, has a per-pupil expenditure that is less

than the average per-pupil expenditure of the

State in which the agency is located; or

(bb) for a local educational agency that has a

total student enrollment of less than 350 students,

has a per-pupil expenditure that is less than the

average per-pupil expenditure of a comparable

local education agency or three comparable local

educational agencies in the State in which the

local educational agency is located; and

(III) has a tax rate for general fund purposes

that is at least 95 percent of the average tax rate

for general fund purposes of comparable local educational agencies in the State.

(ii) RESUMPTION OF ELIGIBILITY.—A heavily impacted local educational agency described in clause (i)

that becomes ineligible under such clause for 1 or

more fiscal years may resume eligibility for a basic

support payment under this paragraph for a subsequent fiscal year only if the agency is a local educational agency whose boundaries are the same as a

Federal military installation (or if the agency is a

qualified local educational agency as described in

clause (iv)), or meets the requirements of clause (i), for

that subsequent fiscal year, except that such agency

shall continue to receive a basic support payment

under this paragraph for the fiscal year for which the

ineligibility determination is made.

(iii) APPLICATION.—With respect to the first fiscal

year for which a heavily impacted local educational

agency described in clause (i) applies for a basic support payment under subparagraph (A), or with respect
Sec. 8003 IMPACT AID UNDER ESEA OF 1965 1044

to the first fiscal year for which a heavily impacted

local educational agency applies for a basic support

payment under subparagraph (A) after becoming ineligible under clause (i) for 1 or more preceding fiscal

years, the agency shall apply for such payment at

least 1 year prior to the start of that first fiscal year.

(iv) QUALIFIED LOCAL EDUCATIONAL AGENCY.—A

qualified local educational agency described in this

clause is an agency that meets the following requirements:

(I) The boundaries of the agency are the same

as island property designated by the Secretary of

the Interior to be property that is held in trust by

the Federal Government.

(II) The agency has no taxing authority.

(III) The agency received a payment under

paragraph (1) for fiscal year 2001.

(D) MAXIMUM AMOUNT FOR REGULAR HEAVILY IMPACTED LOCAL EDUCATIONAL AGENCIES.—(i) Except as provided in subparagraph (E), the maximum amount that a

heavily impacted local educational agency is eligible to receive under this paragraph for any fiscal year is the sum

of the total weighted student units, as computed under

subsection (a)(2) and subject to clause (ii), multiplied by

the greater of—

(I) four-fifths of the average per-pupil expenditure

of the State in which the local educational agency is

located for the third fiscal year preceding the fiscal

year for which the determination is made; or

(II) four-fifths of the average per-pupil expenditure of all of the States for the third fiscal year preceding the fiscal year for which the determination is

made.

(ii)(I) For a local educational agency with respect to

which 35 percent or more of the total student enrollment

of the schools of the agency are children described in subparagraph (D) or (E) (or a combination thereof ) of subsection (a)(1), the Secretary shall calculate the weighted

student units of such children for purposes of subsection

(a)(2) by multiplying the number of such children by a factor of 0.55.

(II) For a local educational agency that has an enrollment of 100 or fewer children described in subsection

(a)(1), the Secretary shall calculate the total number of

weighted student units for purposes of subsection (a)(2) by

multiplying the number of such children by a factor of

1.75.

(III) For a local educational agency that does not qualify under (B)(i)(II)(aa) of this subsection and has an enrollment of more than 100 but not more than 1,000 children

described in subsection (a)(1), the Secretary shall calculate

the total number of weighted student units for purposes of

subsection (a)(2) by multiplying the number of such children by a factor of 1.25.
1045 Sec. 8003 IMPACT AID UNDER ESEA OF 1965

(E) MAXIMUM AMOUNT FOR LARGE HEAVILY IMPACTED

LOCAL EDUCATIONAL AGENCIES.—(i)(I) Subject to clause (ii),

the maximum amount that a heavily impacted local educational agency described in subclause (II) is eligible to receive under this paragraph for any fiscal year shall be determined in accordance with the formula described in

paragraph (1)(C).

(II) A heavily impacted local educational agency described in this subclause is a local educational agency that

has a total student enrollment of not less than 25,000 students, of which not less than 50 percent are children described in subsection (a)(1) and not less than 6,000 of such

children are children described in subparagraphs (A) and

(B) of subsection (a)(1).

(ii) For purposes of calculating the maximum amount

described in clause (i), the factor used in determining the

weighted student units under subsection (a)(2) with respect to children described in subparagraphs (A) and (B) of

subsection (a)(1) shall be 1.35.

(F) DATA.—For purposes of providing assistance under

this paragraph the Secretary—

(i) shall use student, revenue, expenditure, and

tax data from the third fiscal year preceding the fiscal

year for which the local educational agency is applying

for assistance under this paragraph; and

(ii) except as provided in subparagraph (C)(i)(I),

shall include all of the children described in subparagraphs (F) and (G) of subsection (a)(1) enrolled in

schools of the local educational agency in determining

(I) the eligibility of the agency for assistance under

this paragraph, and (II) the amount of such assistance

if the number of such children meet the requirements

of subsection (a)(3).

(G) DETERMINATION OF AVERAGE TAX RATES FOR GENERAL FUND PURPOSES.—For the purpose of determining average tax rates for general fund purposes for local educational agencies in a State under this paragraph (except

under subparagraph (C)(i)(II)(bb)), the Secretary shall use

either—

(i) the average tax rate for general fund purposes

for comparable local educational agencies, as determined by the Secretary in regulations; or

(ii) the average tax rate of all the local educational

agencies in the State.

(H) ELIGIBILITY FOR HEAVILY IMPACTED LOCAL EDUCATIONAL AGENCIES AFFECTED BY PRIVATIZATION OF MILITARY HOUSING.—

(i) ELIGIBILITY.—For any fiscal year, a heavily impacted local educational agency that received a basic

support payment under this paragraph for the prior

fiscal year, but is ineligible for such payment for the

current fiscal year under subparagraph (B), (C), (D), or

(E), as the case may be, by reason of the conversion

of military housing units to private housing described

in clause (iii), shall be deemed to meet the eligibility
Sec. 8003 IMPACT AID UNDER ESEA OF 1965 1046

requirements under subparagraph (B) or (C), as the

case may be, for the period during which the housing

units are undergoing such conversion.

(ii) AMOUNT OF PAYMENT.—The amount of a payment to a heavily impacted local educational agency

for a fiscal year by reason of the application of clause

(i), and calculated in accordance with subparagraph

(D) or (E), as the case may be, shall be based on the

number of children in average daily attendance in the

schools of such agency for the fiscal year and under

the same provisions of subparagraph (D) or (E) under

which the agency was paid during the prior fiscal

year.

(iii) CONVERSION OF MILITARY HOUSING UNITS TO

PRIVATE HOUSING DESCRIBED.—For purposes of clause

(i), ‘‘conversion of military housing units to private

housing’’ means the conversion of military housing

units to private housing units pursuant to subchapter

IV of chapter 169 of title 10, United States Code, or

pursuant to any other related provision of law.

(3) PAYMENTS WITH RESPECT TO FISCAL YEARS IN WHICH IN- SUFFICIENT FUNDS ARE APPROPRIATED.— (A) IN GENERAL.—For any fiscal year in which the

sums appropriated under section 8014(b) are insufficient to

pay to each local educational agency the full amount computed under paragraphs (1) and (2), the Secretary shall

make payments in accordance with this paragraph.

(B) LEARNING OPPORTUNITY THRESHOLD PAYMENTS IN

LIEU OF PAYMENTS UNDER PARAGRAPH (1).—(i) For fiscal

years described in subparagraph (A), the Secretary shall

compute a learning opportunity threshold payment (hereafter in this title referred to as the ‘‘threshold payment’’)

in lieu of basic support payments under paragraph (1) by

multiplying the amount obtained under paragraph (1)(C)

by the total percentage obtained by adding—

(I) the percentage of federally connected children

for each local educational agency determined by calculating the fraction, the numerator of which is the total

number of children described under subsection (a)(1)

and the denominator of which is the total number of

children in average daily attendance at the schools

served by such agency; and

(II) the percentage that funds under paragraph

(1)(C) represent of the total budget of the local educational agency, determined by calculating the fraction, the numerator of which is the total amount of

funds calculated for each local educational agency

under this paragraph, and the denominator of which

is the total current expenditures for such agency in

the second preceding fiscal year for which the determination is made.

(ii) Such total percentage used to calculate threshold

payments under paragraph (1) shall not exceed 100.

(iii) For the purpose of determining the percentages

described in subclauses (I) and (II) of clause (i) that are
1047 Sec. 8003 IMPACT AID UNDER ESEA OF 1965

applicable to the local educational agency providing free

public education to students in grades 9 through 12 residing on Hanscom Air Force Base, Massachusetts, the Secretary shall consider only that portion of such agency’s

total enrollment of students in grades 9 through 12 when

calculating the percentage under such subclause (I) and

only that portion of the total current expenditures attributed to the operation of grades 9 through 12 in such agency when calculating the percentage under subclause (II).

(iv) In the case of a local educational agency that has

a total student enrollment of fewer than 1,000 students

and that has a per-pupil expenditure that is less than the

average per-pupil expenditure of the State in which the

agency is located or less than the average per-pupil expenditure of all the States, the total percentage used to

calculate threshold payments under clause (i) shall not be

less than 40 percent.

(C) LEARNING OPPORTUNITY THRESHOLD PAYMENTS IN

LIEU OF PAYMENTS UNDER PARAGRAPH (2).—For fiscal years

described in subparagraph (A), the learning opportunity

threshold payment in lieu of basic support payments under

paragraph (2) shall be equal to the amount obtained under

subparagraph (D) or (E) of paragraph (2), as the case may

be.

(D) RATABLE DISTRIBUTION.—For fiscal years described

in subparagraph (A), the Secretary shall make payments

as a ratable distribution based upon the computations

made under subparagraphs (B) and (C).

(4) STATES WITH ONLY ONE LOCAL EDUCATIONAL AGENCY.—

(A) IN GENERAL.—In any of the 50 States of the United

States in which there is only one local educational agency,

the Secretary shall, for purposes of subparagraphs (B) and

(C) of paragraph (1) or subparagraphs (B) through (D) of

paragraph (2), as the case may be, paragraph (3) of this

subsection, and subsection (e), consider each administrative school district in the State to be a separate local educational agency.

(B) COMPUTATION OF MAXIMUM AMOUNT OF BASIC SUPPORT PAYMENT AND THRESHOLD PAYMENT.—In computing

the maximum payment amount under paragraph (1)(C) or

subparagraph (D) or (E) of paragraph (2), as the case may

be, and the learning opportunity threshold payment under

subparagraph (B) or (C) of paragraph (3), as the case may

be, for an administrative school district described in subparagraph (A)—

(i) the Secretary shall first determine the maximum payment amount and the total current expenditures for the State as a whole; and

(ii) the Secretary shall then—

(I) proportionately allocate such maximum

payment amount among the administrative school

districts on the basis of the respective weighted

student units of such districts; and

(II) proportionately allocate such total current

expenditures among the administrative school dis-
Sec. 8003 IMPACT AID UNDER ESEA OF 1965 1048

tricts on the basis of the respective number of students in average daily attendance at such districts.

(5) LOCAL EDUCATIONAL AGENCIES AFFECTED BY REMOVAL

OF FEDERAL PROPERTY.—

(A) IN GENERAL.—In computing the amount of a basic

support payment under this subsection for a fiscal year for

a local educational agency described in subparagraph (B),

the Secretary shall meet the additional requirements described in subparagraph (C).

(B) LOCAL EDUCATIONAL AGENCY DESCRIBED.—A local

educational agency described in this subparagraph is a

local educational agency with respect to which Federal

property (i) located within the boundaries of the agency,

and (ii) on which one or more children reside who are receiving a free public education at a school of the agency,

is transferred by the Federal Government to another entity in any fiscal year beginning on or after the date of the

enactment of the Impact Aid Reauthorization Act of 2000

so that the property is subject to taxation by the State or

a political subdivision of the State.

(C) ADDITIONAL REQUIREMENTS.—The additional requirements described in this subparagraph are the following:

(i) For each fiscal year beginning after the date on

which the Federal property is transferred, a child described in subparagraph (B) who continues to reside

on such property and who continues to receive a free

public education at a school of the agency shall be

deemed to be a child who resides on Federal property

for purposes of computing under the applicable subparagraph of subsection (a)(1) the amount that the

agency is eligible to receive under this subsection.

(ii)(I) For the third fiscal year beginning after the

date on which the Federal property is transferred, and

for each fiscal year thereafter, the Secretary shall,

after computing the amount that the agency is otherwise eligible to receive under this subsection for the

fiscal year involved, deduct from such amount an

amount equal to the revenue received by the agency

for the immediately preceding fiscal year as a result of

the taxable status of the former Federal property.

(II) For purposes of determining the amount of

revenue to be deducted in accordance with subclause

(I), the local educational agency—

(aa) shall provide for a review and certification of such amount by an appropriate local tax

authority; and

(bb) shall submit to the Secretary a report

containing the amount certified under item (aa).

(c) PRIOR YEAR DATA.—

(1) IN GENERAL.—Except as provided in subsections

(b)(1)(D), (b)(2), and paragraph (2), all calculations under this

section shall be based on data for each local educational agency
1049 Sec. 8003 IMPACT AID UNDER ESEA OF 1965

from not later than the fiscal year preceding the fiscal year for

which the agency is making application for payment.

(2) EXCEPTION.—Calculations for a local educational agency that is newly established by a State shall, for the first year

of operation of such agency, be based on data from the fiscal

year for which the agency is making application for payment.

(d) CHILDREN WITH DISABILITIES.— (1) IN GENERAL.—From the amount appropriated under

section 8014(c) for a fiscal year, the Secretary shall pay to each

eligible local educational agency, on a pro rata basis, the

amounts determined by—

(A) multiplying the number of children described in

subparagraphs (A)(ii), (B) and (C) of subsection (a)(1) who

are eligible to receive services under the Individuals with

Disabilities Education Act (20 U.S.C. 1400 et seq.) by a

factor of 1.0; and

(B) multiplying the number of children described in

subparagraph (D) of subsection (a)(1) who are eligible to

receive services under such Act by a factor of 0.5.

(2) USE OF FUNDS.—A local educational agency that receives funds under paragraph (1) shall use such funds to provide a free appropriate public education to children described

in paragraph (1) in accordance with the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.).

(e) HOLD HARMLESS.— (1) IN GENERAL.—Subject to paragraphs (2) and (3), the

total amount the Secretary shall pay a local educational agency

under subsection (b)—

(A) for fiscal year 2001 shall not be less than 85 percent of the total amount that the local educational agency

received under subsections (b) and (f ) for fiscal year 2000;

and

(B) for fiscal year 2002 shall not be less than 70 percent of the total amount that the local educational agency

received under subsections (b) and (f ) for fiscal year 2000.

(2) MAXIMUM AMOUNT.—The total amount provided to a

local educational agency under subparagraph (A) or (B) of

paragraph (1) for a fiscal year shall not exceed the maximum

basic support payment amount for such agency determined

under paragraph (1) or (2) of subsection (b), as the case may

be.

(3) RATABLE REDUCTIONS.—

(A) IN GENERAL.—If the sums made available under

this title for any fiscal year are insufficient to pay the full

amounts that all local educational agencies in all States

are eligible to receive under paragraph (1) for such year,

then the Secretary shall ratably reduce the payments to all

such agencies for such year.

(B) ADDITIONAL FUNDS.—If additional funds become

available for making payments under paragraph (1) for

such fiscal year, payments that were reduced under subparagraph (A) shall be increased on the same basis as such

payments were reduced.

(f) OTHER FUNDS.—Notwithstanding any other provision of

law, a local educational agency receiving funds under this section
Sec. 8004 IMPACT AID UNDER ESEA OF 1965 1050

may also receive funds under section 386 of the National Defense

Authorization Act for Fiscal Year 1993 or such section’s successor

authority.

(g) MAINTENANCE OF EFFORT.—A local educational agency may

receive funds under sections 8002 and 8003(b) for any fiscal year

only if the State educational agency finds that either the combined

fiscal effort per student or the aggregate expenditures of that agency and the State with respect to the provision of free public education by that agency for the preceding fiscal year was not less

than 90 percent of such combined fiscal effort or aggregate expenditures for the second preceding fiscal year.

SEC. 8004. ø20 U.S.C. 7704¿ POLICIES AND PROCEDURES RELATING TO

CHILDREN RESIDING ON INDIAN LANDS.

(a) IN GENERAL.—A local educational agency that claims children residing on Indian lands for the purpose of receiving funds

under section 8003 shall establish policies and procedures to ensure that—

(1) such children participate in programs and activities

supported by such funds on an equal basis with all other children;

(2) parents of such children and Indian tribes are afforded

an opportunity to present their views on such programs and

activities, including an opportunity to make recommendations

on the needs of those children and how the local educational

agency may help such children realize the benefits of such programs and activities;

(3) parents and Indian tribes are consulted and involved in

planning and developing such programs and activities;

(4) relevant applications, evaluations, and program plans

are disseminated to the parents and Indian tribes; and

(5) parents and Indian tribes are afforded an opportunity

to present their views to such agency regarding such agency’s

general educational program.

(b) RECORDS.—A local educational agency that claims children

residing on Indian lands for the purpose of receiving funds under

section 8003 shall maintain records demonstrating such agency’s

compliance with the requirements contained in subsection (a).

(c) WAIVER.—A local educational agency that claims children

residing on Indian lands for the purpose of receiving funds under

section 8003 shall not be required to comply with the requirements

of subsections (a) and (b) for any fiscal year with respect to any Indian tribe from which such agency has received a written statement that the agency need not comply with those subsections because the tribe is satisfied with the provision of educational services by such agency to such children.

(d) TECHNICAL ASSISTANCE AND ENFORCEMENT.—The Secretary

shall—

(1) provide technical assistance to local educational agencies, parents, and Indian tribes to enable such agencies, parents, and tribes to carry out this section; and

(2) enforce this section through such actions, which may

include the withholding of funds, as the Secretary determines

to be appropriate, after affording the affected local educational

agency, parents, and Indian tribe an opportunity to present

their views.
1051 Sec. 8004 IMPACT AID UNDER ESEA OF 1965

(e) COMPLAINTS.— (1) IN GENERAL.—(A) Any tribe, or its designee, which has

students in attendance at a local educational agency may, in

its discretion and without regard to the requirements of any

other provision of law, file a written complaint with the Secretary regarding any action of a local educational agency taken

pursuant to, or relevant to, the requirements of this section.

(B) Within ten working days from receipt of a complaint,

the Secretary shall—

(i) designate a time and place for a hearing into the

matters relating to the complaint at a location in close

proximity to the local educational agency involved, or if the

Secretary determines there is good cause, at some other location convenient to both the tribe, or its designee, and the

local educational agency;

(ii) designate a hearing examiner to conduct the hearing; and

(iii) notify the affected tribe or tribes and the local

educational agency involved of the time, place, and nature

of the hearing and send copies of the complaint to the local

educational agency and the affected tribe or tribes.

(2) HEARING.—The hearing shall be held within 30 days of

the designation of a hearing examiner and shall be open to the

public. A record of the proceedings shall be established and

maintained.

(3) EVIDENCE; RECOMMENDATIONS; COST.—The complaining

tribe, or its designee, and the local educational agency shall be

entitled to present evidence on matters relevant to the complaint and to make recommendations concerning the appropriate remedial actions. Each party to the hearing shall bear

only its own costs in the proceedings.

(4) FINDINGS AND RECOMMENDATIONS.—Within 30 days of

the completion of the hearing, the hearing examiner shall, on

the basis of the record, make written findings of fact and recommendations concerning appropriate remedial action, if any,

which should be taken. The hearing examiner’s findings and

recommendations, along with the hearing record, shall be forwarded to the Secretary.

(5) WRITTEN DETERMINATION.—Within 30 days of the Secretary’s receipt of the findings, recommendations, and record,

the Secretary shall, on the basis of the record, make a written

determination of the appropriate remedial action, if any, to be

taken by the local educational agency, the schedule for completion of the remedial action, and the reasons for the Secretary’s

decision.

(6) COPIES PROVIDED.—Upon completion of the Secretary’s

final determination, the Secretary shall provide the complaining tribe, or its designee, and the local educational agency

with copies of the hearing record, the hearing examiner’s findings and recommendations, and the Secretary’s final determination. The final determination of the Secretary shall be

subject to judicial review.

(7) CONSOLIDATION.—In all actions under this subsection,

the Secretary shall have discretion to consolidate complaints

involving the same tribe or local educational agency.
Sec. 8005 IMPACT AID UNDER ESEA OF 1965 1052

(8) WITHHOLDING.—If the local educational agency rejects

the determination of the Secretary, or if the remedy required

is not undertaken within the time established and the Secretary determines that an extension of the time established

will not effectively encourage the remedy required, the Secretary shall withhold payment of all moneys to which such

local agency is eligible under section 8003 until such time as

the remedy required is undertaken, except where the complaining tribe or its designee formally requests that such funds

be released to the local educational agency, except that the

Secretary may not withhold such moneys during the course of

the school year if the Secretary determines that such withholding would substantially disrupt the educational programs

of the local educational agency.

(9) REJECTION OF DETERMINATION.—If the local educational

agency rejects the determination of the Secretary and a tribe

exercises the option under section 1101(d) of the Education

Amendments of 1978, to have education services provided either directly by the Bureau of Indian Affairs or by contract

with the Bureau of Indian Affairs, any Indian students affiliated with that tribe who wish to remain in attendance at the

local educational agency against whom the complaint which led

to the tribal action under such subsection (d) was lodged may

be counted with respect to that local educational agency for the

purpose of receiving funds under section 8003. In such event,

funds under such section shall not be withheld pursuant to

paragraph (8) and no further complaints with respect to such

students may be filed under paragraph (1).

(f) CONSTRUCTION.—This section is based upon the special relationship between the Indian nations and the United States and

nothing in this section shall be construed to relieve any State of

any duty with respect to any citizens of that State.

SEC. 8005. ø20 U.S.C. 7705¿ APPLICATION FOR PAYMENTS UNDER SECTIONS 8002 AND 8003.

(a) IN GENERAL.—A local educational agency desiring to receive

a payment under section 8002 or 8003 shall—

(1) submit an application for such payment to the Secretary; and

(2) provide a copy of such application to the State educational agency.

(b) CONTENTS.—Each such application shall be submitted in

such form and manner, and shall contain such information, as the

Secretary may require, including—

(1) information to determine the eligibility of the local educational agency for a payment and the amount of such payment; and

(2) where applicable, an assurance that such agency is in

compliance with section 8004 (relating to children residing on

Indian lands).

(c) DEADLINE FOR SUBMISSION.—The Secretary shall establish

deadlines for the submission of applications under this section.

(d) APPROVAL.—

(1) IN GENERAL.—The Secretary shall approve an application submitted under this section that—
1053 Sec. 8007 IMPACT AID UNDER ESEA OF 1965

(A) except as provided in paragraph (2), is filed by the

deadline established under subsection (c); and

(B) otherwise meets the requirements of this title.

(2) REDUCTION IN PAYMENT.—The Secretary shall approve

an application filed not more than 60 days after a deadline established under subsection (c), or not more than 60 days after

the date on which the Secretary sends written notice to the

local educational agency pursuant to paragraph (3)(A), as the

case may be, that otherwise meets the requirements of this

title, except that, notwithstanding section 8003(e), the Secretary shall reduce the payment based on such late application

by 10 percent of the amount that would otherwise be paid.

(3) LATE APPLICATIONS.— (A) NOTICE.—The Secretary shall, as soon as practicable after the deadline established under subsection (c),

provide to each local educational agency that applied for a

payment under section 8002 or 8003 for the prior fiscal

year, and with respect to which the Secretary has not received an application for a payment under either such section (as the case may be) for the fiscal year in question,

written notice of the failure to comply with the deadline

and instruction to ensure that the application is filed not

later than 60 days after the date on which the Secretary

sends the notice.

(B) ACCEPTANCE AND APPROVAL OF LATE APPLICA- TIONS.—The Secretary shall not accept or approve any application of a local educational agency that is filed more

than 60 days after the date on which the Secretary sends

written notice to the local educational agency pursuant to

subparagraph (A).

(4) STATE APPLICATION AUTHORITY.—Notwithstanding any

other provision of law, a State educational agency that had

been accepted as an applicant for funds under section 3 of the

Act of September 30, 1950 (Public Law 874, 81st Congress) (as

such section was in effect on the day preceding the date of enactment of the Improving America’s Schools Act of 1994) in fiscal year 1994 shall be permitted to continue as an applicant

under the same conditions by which such agency made application during such fiscal year only if such State educational

agency distributes all funds received for the students for which

application is being made by such State educational agency to

the local educational agencies providing educational services to

such students.

øSEC. 8006. Repealed by section 1810 of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 (as enacted into

law by Public Law 106–398; 114 Stat. 1654A–383).¿

SEC. 8007. ø20 U.S.C. 7707¿ CONSTRUCTION.

(a) CONSTRUCTION PAYMENTS AUTHORIZED.— (1) IN GENERAL.—From 40 percent of the amount appropriated for each fiscal year under section 8014(e), the Secretary

shall make payments in accordance with this subsection to

each local educational agency that receives a basic support

payment under section 8003(b) for that fiscal year.

(2) ADDITIONAL REQUIREMENTS.—A local educational agency that receives a basic support payment under section
Sec. 8007 IMPACT AID UNDER ESEA OF 1965 1054

8003(b)(1) shall also meet at least one of the following requirements:

(A) The number of children determined under section

8003(a)(1)(C) for the agency for the preceding school year

constituted at least 50 percent of the total student enrollment in the schools of the agency during the preceding

school year.

(B) The number of children determined under subparagraphs (B) and (D)(i) of section 8003(a)(1) for the

agency for the preceding school year constituted at least 50

percent of the total student enrollment in the schools of

the agency during the preceding school year.

(3) AMOUNT OF PAYMENTS.—

(A) LOCAL EDUCATIONAL AGENCIES IMPACTED BY MILITARY DEPENDENT CHILDREN.—The amount of a payment to

each local educational agency described in this subsection

that is impacted by military dependent children for a fiscal

year shall be equal to—

(i)(II) 20 percent of the amount appropriated

under section 8014(e) for such fiscal year; divided by

(II) the total number of weighted student units of

children described in subparagraphs (B) and (D)(i) of

section 8003(a)(1) for all local educational agencies described in this subsection (as calculated under section

8003(a)(2)), including the number of weighted student

units of such children attending a school facility described in section 8008(a) if the Secretary does not

provide assistance for the school facility under that

section for the prior fiscal year; multiplied by

(ii) the total number of such weighted student

units for the agency.

(B) LOCAL EDUCATIONAL AGENCIES IMPACTED BY CHILDREN WHO RESIDE ON INDIAN LANDS.—The amount of a

payment to each local educational agency described in this

subsection that is impacted by children who reside on Indian lands for a fiscal year shall be equal to—

(i)(I) 20 percent of the amount appropriated under

section 8014(e) for such fiscal year; divided by

(II) the total number of weighted student units of

children described in section 8003(a)(1)(C) for all local

educational agencies described in this subsection (as

calculated under section 8003(a)(2)); multiplied by

(ii) the total number of such weighted student

units for the agency.

(4) USE OF FUNDS.—Any local educational agency that receives funds under this subsection shall use such funds for construction, as defined in section 8013(3).

(b) SCHOOL FACILITY EMERGENCY AND MODERNIZATION GRANTS

AUTHORIZED.—

(1) IN GENERAL.—From 60 percent of the amount appropriated for each fiscal year under section 8014(e), the

Secretary—

(A) shall award emergency grants in accordance with

this subsection to eligible local educational agencies to en-
1055 Sec. 8007 IMPACT AID UNDER ESEA OF 1965

able the agencies to carry out emergency repairs of school

facilities; and

(B) shall award modernization grants in accordance

with this subsection to eligible local educational agencies

to enable the agencies to carry out the modernization of

school facilities.

(2) PRIORITY.—In approving applications from local educational agencies for emergency grants and modernization

grants under this subsection, the Secretary shall give priority

to applications in accordance with the following:

(A) The Secretary shall first give priority to applications for emergency grants from local educational agencies

that meet the requirements of paragraph (3)(A) and,

among such applications for emergency grants, shall give

priority to those applications of local educational agencies

based on the severity of the emergency, as determined by

the Secretary.

(B) The Secretary shall next give priority to applications for emergency grants from local educational agencies

that meet the requirements of subparagraph (C) or (D) of

paragraph (3) and, among such applications for emergency

grants, shall give priority to those applications of local

educational agencies based on the severity of the emergency, as determined by the Secretary.

(C) The Secretary shall next give priority to applications for modernization grants from local educational agencies that meet the requirements of paragraph (3)(B) and,

among such applications for modernization grants, shall

give priority to those applications of local educational

agencies based on the severity of the need for modernization, as determined by the Secretary.

(D) The Secretary shall next give priority to applications for modernization grants from local educational agencies that meet the requirements of subparagraph (C) or (D)

of paragraph (3) and, among such applications for modernization grants, shall give priority to those applications

of local educational agencies based on the severity of the

need for modernization, as determined by the Secretary.

(3) ELIGIBILITY REQUIREMENTS.—

(A) EMERGENCY GRANTS.—A local educational agency

is eligible to receive an emergency grant under paragraph

(2)(A) if—

(i) the agency (or in the case of a local educational

agency that does not have the authority to tax or issue

bonds, the agency’s fiscal agent)—

(I) has no practical capacity to issue bonds;

(II) has minimal capacity to issue bonds and

is at not less than 75 percent of the agency’s limit

of bonded indebtedness; or

(III) does not meet the requirements of subclauses (I) and (II) but is eligible to receive funds

under section 8003(b)(2) for the fiscal year; and

(ii) the agency is eligible to receive assistance

under subsection (a) for the fiscal year and has a

school facility emergency, as determined by the Sec-
Sec. 8007 IMPACT AID UNDER ESEA OF 1965 1056

retary, that poses a health or safety hazard to the students and school personnel assigned to the school facility.

(B) MODERNIZATION GRANTS.—A local educational

agency is eligible to receive a modernization grant under

paragraph (2)(C) if—

(i) the agency is eligible to receive assistance

under this title for the fiscal year;

(ii) the agency (or in the case of a local educational agency that does not have the authority to tax

or issue bonds, the agency’s fiscal agent) meets the requirements of subclause (I), (II), or (III) of subparagraph (A)(i); and

(iii) the agency has facility needs resulting from

the presence of the Federal Government, such as the

enrollment of federally connected children, the presence of tax-exempt Federal property, or an increase in

enrollment due to the expansion of Federal activities,

housing privatization, or the acquisition of Federal

property.

(C) ADDITIONAL ELIGIBILITY FOR EMERGENCY AND MOD- ERNIZATION GRANTS.—(i) A local educational agency is eligible to receive an emergency grant or a modernization

grant under subparagraph (B) or (D) of paragraph (2), respectively, if the agency meets the following requirements:

(I) The agency receives a basic support payment

under section 8003(b) for the fiscal year and the agency meets at least one of the following requirements:

(aa) The number of children determined

under section 8003(a)(1)(C) for the agency for the

preceding school year constituted at least 40 percent of the total student enrollment in the schools

of the agency during the preceding school year.

(bb) The number of children determined

under subparagraphs (B) and (D)(i) of section

8003(a)(1) for the agency for the preceding school

year constituted at least 40 percent of the total

student enrollment in the schools of the agency

during the preceding school year.

(II) The agency (or in the case of a local educational agency that does not have the authority to tax

or issue bonds, the agency’s fiscal agent) is at not less

than 75 percent of the agency’s limit of bonded indebtedness.

(III) The agency has an assessed value of real

property per student that may be taxed for school purposes that is less than the average of the assessed

value of real property per student that may be taxed

for school purposes in the State in which the local educational agency is located.

(ii) A local educational agency is also eligible to receive

a modernization grant under this subparagraph if the

agency is eligible to receive assistance under section 8002

for the fiscal year and meets the requirements of subclauses (II) and (III) of clause (i).
1057 Sec. 8007 IMPACT AID UNDER ESEA OF 1965

(D) SPECIAL RULE.— (i) IN GENERAL.—Any school described in clause

(ii) that desires to receive an emergency grant or a

modernization grant under subparagraph (B) or (D) of

paragraph (2), respectively, shall, except as provided

in the following sentence, submit an application in accordance with paragraph (6), and shall otherwise be

treated as a local educational agency for the purpose

of this subsection. The school shall submit an application for the grant to the local educational agency of

such school and the agency shall submit the application on behalf of the school to the Secretary.

(ii) SCHOOL DESCRIBED.—A school described in this

clause is a school that meets the following requirements:

(I) The school is located within the geographic

boundaries of a local educational agency that does

not meet the applicable eligibility requirements

under subparagraph (A), (B), or (C) for a grant

under this subsection.

(II) The school meets at least one of the following requirements:

(aa) The number of children determined

under section 8003(a)(1)(C) for the school for

the preceding school year constituted at least

40 percent of the total student enrollment in

the school during the preceding school year.

(bb) The number of children determined

under subparagraphs (B) and (D)(i) of section

8003(a)(1) for the school for the preceding

school year constituted at least 40 percent of

the total student enrollment in the school during the preceding school year.

(III) The school is located within the geographic boundaries of a local educational agency

that meets the requirements of subclauses (II) and

(III) of subparagraph (C)(i).

(E) RULE OF CONSTRUCTION.—For purposes of subparagraph (A)(i), a local educational agency—

(i) has no practical capacity to issue bonds if the

total assessed value of real property that may be taxed

for school purposes is less than $25,000,000; and

(ii) has minimal capacity to issue bonds if the

total assessed value of real property that may be taxed

for school purposes is at least $25,000,000 but not

more than $50,000,000.

(4) AWARD CRITERIA.—In awarding emergency grants and

modernization grants under this subsection, the Secretary

shall consider the following factors:

(A) The ability of the local educational agency to respond to the emergency, or to pay for the modernization

project, as the case may be, as measured by—

(i) the agency’s level of bonded indebtedness;

(ii) the assessed value of real property per student

that may be taxed for school purposes compared to the
Sec. 8007 IMPACT AID UNDER ESEA OF 1965 1058

average of the assessed value of real property per student that may be taxed for school purposes in the

State in which the agency is located;

(iii) the agency’s total tax rate for school purposes

(or, if applicable, for capital expenditures) compared to

the average total tax rate for school purposes (or the

average capital expenditure tax rate, if applicable) in

the State in which the agency is located; and

(iv) funds that are available to the agency, from

any other source, including subsection (a), that may be

used for capital expenditures.

(B) The percentage of property in the agency that is

nontaxable due to the presence of the Federal Government.

(C) The number and percentages of children described

in subparagraphs (A), (B), (C), and (D) of section 8003(a)(1)

served in the school facility with the emergency or served

in the school facility proposed for modernization, as the

case may be.

(D) In the case of an emergency grant, the severity of

the emergency, as measured by the threat that the condition of the school facility poses to the health, safety, and

well-being of students.

(E) In the case of a modernization grant—

(i) the severity of the need for modernization, as

measured by such factors as—

(I) overcrowding, as evidenced by the use of

portable classrooms, or the potential for future

overcrowding because of increased enrollment; or

(II) the agency’s inability to utilize technology

or offer a curriculum in accordance with contemporary State standards due to the physical limitations of the current school facility; and

(ii) the age of the school facility proposed for modernization.

(5) OTHER AWARD PROVISIONS.—

(A) GENERAL PROVISIONS.—

(i) LIMITATIONS ON AMOUNT OF FUNDS.—

(I) IN GENERAL.—The amount of funds provided under an emergency grant or a modernization grant awarded under this subsection to a

local educational agency that meets the requirements of subclause (II) or (III) of paragraph

(3)(A)(i) for purposes of eligibility under subparagraph (A) or (B) of paragraph (3) or that meets the

requirements of clause (i) or (ii) of paragraph

(3)(C) for purposes of eligibility under such paragraph (3)(C), or to a school that is eligible under

paragraph (3)(D)—

(aa) shall not exceed 50 percent of the

total cost of the project to be assisted under

this subsection; and

(bb) shall not exceed $4,000,000 during

any 4-year period.
1059 Sec. 8007 IMPACT AID UNDER ESEA OF 1965

(II) IN-KIND CONTRIBUTIONS.—A local educational agency may use in-kind contributions to

meet the matching requirement of subclause

(I)(aa).

(ii) PROHIBITIONS ON USE OF FUNDS.—A local educational agency may not use funds provided under an

emergency grant or modernization grant awarded

under this subsection for—

(I) a project for a school facility for which the

agency does not have full title or other interest;

(II) stadiums or other school facilities that are

primarily used for athletic contests, exhibitions, or

other events for which admission is charged to the

general public; or

(III) the acquisition of real property.

(iii) SUPPLEMENT, NOT SUPPLANT.—A local educational agency shall use funds provided under an

emergency grant or modernization grant awarded

under this subsection only to supplement the amount

of funds that would, in the absence of the Federal

funds provided under the grant, be made available

from non-Federal sources to carry out emergency repairs of school facilities or to carry out the modernization of school facilities, as the case may be, and not to

supplant such funds.

(iv) MAINTENANCE COSTS.—Nothing in this subsection shall be construed to authorize the payment of

maintenance costs in connection with any school facility modernized in whole or in part with Federal funds

provided under this subsection.

(v) ENVIRONMENTAL SAFEGUARDS.—All projects

carried out with Federal funds provided under this

subsection shall comply with all relevant Federal,

State, and local environmental laws and regulations.

(vi) CARRY-OVER OF CERTAIN APPLICATIONS.—A

local educational agency that applies for an emergency

grant or a modernization grant under this subsection

for a fiscal year and does not receive the grant for the

fiscal year shall have the application for the grant considered for the following fiscal year, subject to the priority requirements of paragraph (2) and the award criteria requirements of paragraph (4).

(B) EMERGENCY GRANTS; PROHIBITION ON USE OF

FUNDS.—A local educational agency that is awarded an

emergency grant under this subsection may not use

amounts under the grant for the complete or partial replacement of an existing school facility unless such replacement is less expensive or more cost-effective than correcting the identified emergency.

(6) APPLICATION.—A local educational agency that desires

to receive an emergency grant or a modernization grant under

this subsection shall submit an application to the Secretary at

such time, in such manner, and accompanied by such information as the Secretary may require. Each application shall contain the following:
Sec. 8008 IMPACT AID UNDER ESEA OF 1965 1060

(A) A description of how the local educational agency

meets the award criteria under paragraph (4), including

the information described in clauses (i) through (iv) of

paragraph (4)(A) and subparagraphs (B) and (C) of paragraph (4).

(B) In the case of an application for an emergency

grant—

(i) a description of the school facility deficiency

that poses a health or safety hazard to the occupants

of the facility and a description of how the deficiency

will be repaired; and

(ii) a signed statement from an appropriate local

official certifying that a deficiency in the school facility

threatens the health or safety of the occupants of the

facility or that prevents the use of all or a portion of

the building.

(C) In the case of an application for a modernization

grant—

(i) an explanation of the need for the school facility modernization project;

(ii) the date on which original construction of the

facility to be modernized was completed;

(iii) a listing of the school facilities to be modernized, including the number and percentage of children

determined under section 8003(a)(1) in average daily

attendance in each school facility; and

(iv) a description of the ownership of the property

on which the current school facility is located or on

which the planned school facility will be located.

(D) A description of the project for which a grant

under this subsection will be used, including a cost estimate for the project.

(E) A description of the interest in, or authority over,

the school facility involved, such as an ownership interest

or a lease arrangement.

(F) Such other information and assurances as the Secretary may reasonably require.

(7) REPORT.—

(A) IN GENERAL.—Not later than January 1 of each

year, the Secretary shall prepare and submit to the appropriate congressional committees a report that contains a

justification for each grant awarded under this subsection

for the prior fiscal year.

(B) DEFINITION.—In this paragraph, the term ‘‘appropriate congressional committees’’ means—

(i) the Committee on Appropriations and the Committee on Education and the Workforce of the House

of Representatives; and

(ii) the Committee on Appropriations and the

Committee on Health, Education, Labor, and Pensions

of the Senate.

SEC. 8008. ø20 U.S.C. 7708¿ FACILITIES.

(a) CURRENT FACILITIES.—From the amount appropriated for

any fiscal year under section 8014(f), the Secretary may continue
1061 Sec. 8009 IMPACT AID UNDER ESEA OF 1965

to provide assistance for school facilities that were supported by

the Secretary under section 10 of the Act of September 23, 1950

(Public Law 815, 81st Congress) (as such Act was in effect on the

day preceding the date of the enactment of the Improving America’s Schools Act of 1994).

(b) TRANSFER OF FACILITIES.— (1) IN GENERAL.—The Secretary shall, as soon as practicable, transfer to the appropriate local educational agency or

another appropriate entity all the right, title, and interest of

the United States in and to each facility provided under section

10 of the Act of September 23, 1950 (Public Law 815, 81st Congress), or under section 204 or 310 of the Act of September 30,

1950 (Public Law 874, 81st Congress) (as such Acts were in effect on January 1, 1958).

(2) OTHER REQUIREMENTS.—Any such transfer shall be

without charge to such agency or entity, and prior to such

transfer, the transfer shall be consented to by the local educational agency or other appropriate entity, and may be made

on such terms and conditions as the Secretary deems appropriate to carry out the purposes of this title.

SEC. 8009. ø20 U.S.C. 7709¿ STATE CONSIDERATION OF PAYMENTS IN

PROVIDING STATE AID.

(a) GENERAL PROHIBITION.—Except as provided in subsection

(b), a State may not—

(1) consider payments under this title in determining for

any fiscal year—

(A) the eligibility of a local educational agency for

State aid for free public education; or

(B) the amount of such aid; or

(2) make such aid available to local educational agencies

in a manner that results in less State aid to any local educational agency that is eligible for such payment than such

agency would receive if such agency were not so eligible.

(b) STATE EQUALIZATION PLANS.— (1) IN GENERAL.—A State may reduce State aid to a local

educational agency that receives a payment under section 8002

or 8003(b) (except the amount calculated in excess of 1.0 under

section 8003(a)(2)(B) and, with respect to a local educational

agency that receives a payment under section 8003(b)(2), the

amount in excess of the amount that the agency would receive

if the agency were deemed to be an agency eligible to receive

a payment under section 8003(b)(1) and not section 8003(b)(2))

for any fiscal year if the Secretary determines, and certifies

under subsection (c)(3)(A), that the State has in effect a program of State aid that equalizes expenditures for free public

education among local educational agencies in the State.

(2) COMPUTATION.—

(A) IN GENERAL.—For purposes of paragraph (1), a

program of State aid equalizes expenditures among local

educational agencies if, in the second fiscal year preceding

the fiscal year for which the determination is made, the

amount of per-pupil expenditures made by, or per-pupil

revenues available to, the local educational agency in the

State with the highest such per-pupil expenditures or revenues did not exceed the amount of such per-pupil expendi-
Sec. 8009 IMPACT AID UNDER ESEA OF 1965 1062

tures made by, or per-pupil revenues available to, the local

educational agency in the State with the lowest such expenditures or revenues by more than 25 percent.

(B) OTHER FACTORS.—In making a determination

under this subsection, the Secretary shall—

(i) disregard local educational agencies with perpupil expenditures or revenues above the 95th percentile or below the 5th percentile of such expenditures or revenues in the State; and

(ii) take into account the extent to which a program of State aid reflects the additional cost of providing free public education in particular types of local

educational agencies, such as those that are geographically isolated, or to particular types of students,

such as children with disabilities.

(3) EXCEPTION.—Notwithstanding paragraph (2), if the

Secretary determines that the State has substantially revised

its program of State aid, the Secretary may certify such program for any fiscal year only if—

(A) the Secretary determines, on the basis of projected

data, that the State’s program will meet the disparity

standard described in paragraph (2) for the fiscal year for

which the determination is made; and

(B) the State provides an assurance to the Secretary

that, if final data do not demonstrate that the State’s program met such standard for the fiscal year for which the

determination is made, the State will pay to each affected

local educational agency the amount by which the State reduced State aid to the local educational agency.

(c) PROCEDURES FOR REVIEW OF STATE EQUALIZATION PLANS.—

(1) WRITTEN NOTICE.—

(A) IN GENERAL.—Any State that wishes to consider

payments described in subsection (b)(1) in providing State

aid to local educational agencies shall submit to the Secretary, not later than 120 days before the beginning of the

State’s fiscal year, a written notice of such State’s intention to do so.

(B) CONTENTS.—Such notice shall be in the form and

contain the information the Secretary requires, including

evidence that the State has notified each local educational

agency in the State of such State’s intention to consider

such payments in providing State aid.

(2) OPPORTUNITY TO PRESENT VIEWS.—Before making a determination under subsection (b), the Secretary shall afford the

State, and local educational agencies in the State, an opportunity to present their views.

(3) QUALIFICATION PROCEDURES.—If the Secretary determines that a program of State aid qualifies under subsection

(b), the Secretary shall—

(A) certify the program and so notify the State; and

(B) afford an opportunity for a hearing, in accordance

with section 8011(a), to any local educational agency adversely affected by such certification.
1063 Sec. 8010 IMPACT AID UNDER ESEA OF 1965

(4) NON-QUALIFICATION PROCEDURES.—If the Secretary determines that a program of State aid does not qualify under

subsection (b), the Secretary shall—

(A) so notify the State; and

(B) afford an opportunity for a hearing, in accordance

with section 8011(a), to the State, and to any local educational agency adversely affected by such determination.

(d) TREATMENT OF STATE AID.—

(1) IN GENERAL.—If a State has in effect a program of

State aid for free public education for any fiscal year, which is

designed to equalize expenditures for free public education

among the local educational agencies of that State, payments

under this title for any fiscal year may be taken into consideration by such State in determining the relative—

(A) financial resources available to local educational

agencies in that State; and

(B) financial need of such agencies for the provision of

free public education for children served by such agency,

except that a State may consider as local resources funds

received under this title only in proportion to the share

that local tax revenues covered under a State equalization

program are of total local tax revenues.

(2) PROHIBITION.—A State may not take into consideration

payments under this title before such State’s program of State

aid has been certified by the Secretary under subsection (c)(3).

(e) REMEDIES FOR STATE VIOLATIONS.—

(1) IN GENERAL.—The Secretary or any aggrieved local

educational agency may, not earlier than 150 days after an adverse determination by the Secretary against a State for violation of subsections (a) or (d)(2) or for failure to carry out an assurance under subsection (b)(3)(B), and if an administrative

proceeding has not been concluded within such time, bring an

action in a United States district court against such State for

such violations or failure.

(2) IMMUNITY.—A State shall not be immune under the

11th amendment to the Constitution of the United States from

an action described in paragraph (1).

(3) RELIEF.—The court shall grant such relief as the court

determines is appropriate.

SEC. 8010. ø20 U.S.C. 7710¿ FEDERAL ADMINISTRATION.

(a) PAYMENTS IN WHOLE DOLLAR AMOUNTS.—The Secretary

shall round any payments under this title to the nearest whole dollar amount.

(b) OTHER AGENCIES.—Each Federal agency administering

Federal property on which children reside, and each agency principally responsible for an activity that may occasion assistance

under this title, shall, to the maximum extent practicable, comply

with requests of the Secretary for information the Secretary may

require to carry out this title.

(c) SPECIAL RULES.— (1) CERTAIN CHILDREN ELIGIBLE UNDER SUBPARAGRAPHS (A)

AND (G)(ii) OF SECTION 8003(a)(1).—(A) The Secretary shall treat

as eligible under subparagraph (A) of section 8003(a)(1) any

child who would be eligible under such subparagraph except
Sec. 8011 IMPACT AID UNDER ESEA OF 1965 1064

that the Federal property on which the child resides or on

which the child’s parent is employed is not in the same State

in which the child attends school, if such child meets the requirements of paragraph (3) of this subsection.

(B) The Secretary shall treat as eligible under subparagraph (G) of section 8003(a)(1) any child who would be eligible

under such subparagraph except that such child does not meet

the requirements of clause (ii) of such subparagraph, if such

child meets the requirements of paragraph (3) of this subsection.

(2) REQUIREMENTS.—A child meets the requirements of

this paragraph if—

(A) such child resides—

(i) in a State adjacent to the State in which the

local educational agency serving the school such child

attends is located; or

(ii) with a parent employed on Federal property in

a State adjacent to the State in which such agency is

located;

(B) the schools of such agency are within a more reasonable commuting distance of such child’s home than the

schools of the local educational agency that serves the

school attendance area where such child resides;

(C) attending the schools of the local educational agency that serves the school attendance area where such child

resides will impose a substantial hardship on such child;

(D) the State in which such child attends school provides funds for the education of such child on the same

basis as all other public school children in the State, unless otherwise permitted under section 8009(b) of this title;

and

(E) such agency received a payment for fiscal year

1999 under section 8003(b) on behalf of children described

in paragraph (1).

SEC. 8011. ø20 U.S.C. 7711¿ ADMINISTRATIVE HEARINGS AND JUDICIAL

REVIEW.

(a) ADMINISTRATIVE HEARINGS.—A local educational agency

and a State that is adversely affected by any action of the Secretary under this title or under the Act of September 30, 1950

(Public Law 874, 81st Congress) (as such Act was in effect on the

day preceding the date of enactment of the Improving America’s

Schools Act of 1994) shall be entitled to a hearing on such action

in the same manner as if such agency were a person under chapter

5 of title 5, United States Code if the local educational agency or

State, as the case may be, submits to the Secretary a request for

the hearing not later than 60 days after the date of the action of

the Secretary under this title.

(b) JUDICIAL REVIEW OF SECRETARIAL ACTION.—

(1) IN GENERAL.—A local educational agency or a State aggrieved by the Secretary’s final decision following an agency

proceeding under subsection (a) may, within 30 working days

(as determined by the local educational agency or State) after

receiving notice of such decision, file with the United States

court of appeals for the circuit in which such agency or State

is located a petition for review of that action. The clerk of the
1065 Sec. 8013 IMPACT AID UNDER ESEA OF 1965

court shall promptly transmit a copy of the petition to the Secretary. The Secretary shall then file in the court the record of

the proceedings on which the Secretary’s action was based, as

provided in section 2112 of title 28, United States Code.

(2) FINDINGS OF FACT.—The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case

to the Secretary to take further evidence. The Secretary may

thereupon make new or modified findings of fact and may modify the Secretary’s previous action, and shall file in the court

the record of the further proceedings. Such new or modified

findings of fact shall likewise be conclusive if supported by substantial evidence.

(3) REVIEW.—The court shall have exclusive jurisdiction to

affirm the action of the Secretary or to set it aside, in whole

or in part. The judgment of the court shall be subject to review

by the Supreme Court of the United States upon certiorari or

certification as provided in section 1254 of title 28, United

States Code.

SEC. 8012. ø20 U.S.C. 7712¿ FORGIVENESS OF OVERPAYMENTS.

Notwithstanding any other provision of law, the Secretary may

forgive the obligation of a local educational agency to repay, in

whole or in part, the amount of any overpayment received under

this title, or under this title’s predecessor authorities, if the Secretary determines that the overpayment was made as a result of

an error made by—

(1) the Secretary; or

(2) the local educational agency and repayment of the full

amount of the overpayment will result in an undue financial

hardship on the agency and seriously harm the agency’s educational program.

SEC. 8013. ø20 U.S.C. 7713¿ DEFINITIONS.

For purposes of this title:

(1) ARMED FORCES.—The term ‘‘Armed Forces’’ means the

Army, Navy, Air Force, and Marine Corps.

(2) AVERAGE PER-PUPIL EXPENDITURE.—The term ‘‘average

per-pupil expenditure’’ means—

(A) the aggregate current expenditures of all local educational agencies in the State; divided by

(B) the total number of children in average daily attendance for whom such agencies provided free public education.

(3) CONSTRUCTION.—The term ‘‘construction’’ means—

(A) the preparation of drawings and specifications for

school facilities;

(B) erecting, building, acquiring, altering, remodeling,

repairing, or extending school facilities;

(C) inspecting and supervising the construction of

school facilities; and

(D) debt service for such activities.

(4) CURRENT EXPENDITURES.—The term ‘‘current expenditures’’ means expenditures for free public education, including

expenditures for administration, instruction, attendance and

health services, pupil transportation services, operation and
Sec. 8013 IMPACT AID UNDER ESEA OF 1965 1066

1Section 2 of Public Law 106–400 (114 Stat. 1675) provides that ‘‘Any reference in any law,

regulation, document, paper, or other record of the United States to the Stewart B. McKinney

Homeless Assistance Act shall be deemed to be a reference to the ‘McKinney-Vento Homeless

Assistance Act’.’’ 2Margin so in law.

maintenance of plant, fixed charges, and net expenditures to

cover deficits for food services and student body activities, but

does not include expenditures for community services, capital

outlay, and debt service, or any expenditures made from funds

awarded under part A of title I and title VI. The determination

of whether an expenditure for the replacement of equipment is

considered a current expenditure or a capital outlay shall be

determined in accordance with generally accepted accounting

principles as determined by the State.

(5) FEDERAL PROPERTY.—

(A) IN GENERAL.—Except as provided in subparagraphs (B) through (F), the term ‘‘Federal property’’ means

real property that is not subject to taxation by any State

or any political subdivision of a State due to Federal agreement, law, or policy, and that is—

(i) owned by the United States or leased by the

United States from another entity;

(ii)(I) held in trust by the United States for individual Indians or Indian tribes;

(II) held by individual Indians or Indian tribes

subject to restrictions on alienation imposed by the

United States;

(III) conveyed at any time under the Alaska Native Claims Settlement Act to a Native individual, Native group, or village or regional corporation;

(IV) public land owned by the United States that

is designated for the sole use and benefit of individual

Indians or Indian tribes; or

(V) used for low-rent housing, as described in

paragraph (10), that is located on land described in

subclause (I), (II), (III), or (IV) of this clause or on land

that met one of those descriptions immediately before

such property’s use for such housing;

(iii)(I) part of a low-rent housing project assisted

under the United States Housing Act of 1937;

(II) used to provide housing for homeless children

at closed military installations pursuant to section 501

of the Stewart B. McKinney Homeless Assistance

Act 1; or

(III) 2 used for affordable housing assisted

under the Native American Housing Assistance

and Self-Determination Act of 1996; or

(iv) owned by a foreign government or by an international organization.

(B) SCHOOLS PROVIDING FLIGHT TRAINING TO MEMBERS

OF AIR FORCE.—The term ‘‘Federal property’’ includes, so

long as not subject to taxation by any State or any political

subdivision of a State, and whether or not that tax exemption is due to Federal agreement, law, or policy, any school

providing flight training to members of the Air Force
1067 Sec. 8013 IMPACT AID UNDER ESEA OF 1965

under contract with the Air Force at an airport owned by

a State or political subdivision of a State.

(C) NON-FEDERAL EASEMENTS, LEASES, LICENSES, PERMITS, IMPROVEMENTS, AND CERTAIN OTHER REAL PROPERTY.—The term ‘‘Federal property’’ includes, whether or

not subject to taxation by a State or a political subdivision

of a State—

(i) any non-Federal easement, lease, license, permit, or other such interest in Federal property as otherwise described in this paragraph, but not including

any non-Federal fee-simple interest;

(ii) any improvement on Federal property as otherwise described in this paragraph; and

(iii) real property that, immediately before its sale

or transfer to a non-Federal party, was owned by the

United States and otherwise qualified as Federal property described in this paragraph, but only for one year

beyond the end of the fiscal year of such sale or

transfer.

(D) CERTAIN POSTAL SERVICE PROPERTY AND PIPELINES

AND UTILITY LINES.—Notwithstanding any other provision

of this paragraph, the term ‘‘Federal property’’ does not

include—

(i) any real property under the jurisdiction of the

United States Postal Service that is used primarily for

the provision of postal services; or

(ii) pipelines and utility lines.

(E) PROPERTY WITH RESPECT TO WHICH STATE OR

LOCAL TAX REVENUES MAY NOT BE EXPENDED, ALLOCATED,

OR AVAILABLE FOR FREE PUBLIC EDUCATION.—Notwithstanding any other provision of this paragraph, ‘‘Federal

property’’ does not include any property on which children

reside that is otherwise described in this paragraph if—

(i) no tax revenues of the State or of any political

subdivision of the State may be expended for the free

public education of children who reside on that Federal property; or

(ii) no tax revenues of the State are allocated or

available for the free public education of such children.

(F) PROPERTY LOCATED IN THE STATE OF OKLAHOMA

OWNED BY INDIAN HOUSING AUTHORITY FOR LOW-INCOME

HOUSING.—The term ‘‘Federal property’’ includes any real

property located in the State of Oklahoma that—

(i) is owned by an Indian housing authority and

used for low-income housing (including housing assisted under or authorized by the Native American

Housing Assistance and Self-Determination Act of

1996); and

(ii) at any time—

(I) was designated by treaty as tribal land; or

(II) satisfied the definition of Federal property

under section 403(1)(A) of the Act of September

30, 1950 (Public Law 874, 81st Congress) (as such

Act was in effect on the day preceding the date of
Sec. 8013 IMPACT AID UNDER ESEA OF 1965 1068

enactment of the Improving America’s Schools Act

of 1994).

(6) FREE PUBLIC EDUCATION.—The term ‘‘free public education’’ means education that is provided—

(A) at public expense, under public supervision and direction, and without tuition charge; and

(B) as elementary or secondary education, as determined under State law, except that, notwithstanding State

law, such term—

(i) includes preschool education; and

(ii) does not include any education provided beyond grade 12.

(7) INDIAN LANDS.—The term ‘‘Indian lands’’ means any

Federal property described in paragraph (5)(A)(ii) or (5)(F).

(8) LOCAL CONTRIBUTION PERCENTAGE.—

(A) IN GENERAL.—The term ‘‘local contribution percentage’’ means the percentage of current expenditures in

the State derived from local and intermediate sources, as

reported to and verified by the National Center for Education Statistics.

(B) HAWAII AND DISTRICT OF COLUMBIA.—Notwithstanding subparagraph (A), the local contribution percentage for Hawaii and for the District of Columbia shall be

the average local contribution percentage for the 50 States

and the District of Columbia.

(9) LOCAL EDUCATIONAL AGENCY.—

(A) IN GENERAL.—Except as provided in subparagraph

(B), the term ‘‘local educational agency’’—

(i) means a board of education or other legally

constituted local school authority having administrative control and direction of free public education in a

county, township, independent school district, or other

school district; and

(ii) includes any State agency that directly operates and maintains facilities for providing free public

education.

(B) EXCEPTION.—The term ‘‘local educational agency’’

does not include any agency or school authority that the

Secretary determines on a case-by-case basis—

(i) was constituted or reconstituted primarily for

the purpose of receiving assistance under this title or

the Act of September 30, 1950 (Public Law 874, 81st

Congress) (as such Act was in effect on the day preceding the date of enactment of the Improving America’s Schools Act of 1994) or increasing the amount of

such assistance; or

(ii) is not constituted or reconstituted for legitimate educational purposes.

(10) LOW-RENT HOUSING.—The term ‘‘low-rent housing’’

means housing located on property that is described in paragraph (5)(A)(iii).

(11) MODERNIZATION.—The term ‘‘modernization’’ means

repair, renovation, alteration, or construction, including—

(A) the concurrent installation of equipment; and
1069 FY04 ANNUAL IMPACT AID

(B) the complete or partial replacement of an existing

school facility, but only if such replacement is less expensive and more cost-effective than repair, renovation, or alteration of the school facility.

(12) REVENUE DERIVED FROM LOCAL SOURCES.—The term

‘‘revenue derived from local sources’’ means—

(A) revenue produced within the boundaries of a local

educational agency and available to such agency for such

agency’s use; or

(B) funds collected by another governmental unit, but

distributed back to a local educational agency in the same

proportion as such funds were collected as a local revenue

source.

(13) SCHOOL FACILITIES.—The term ‘‘school facilities’’

includes—

(A) classrooms and related facilities; and

(B) equipment, machinery, and utilities necessary or

appropriate for school purposes.

SEC. 8014. ø20 U.S.C. 7714¿ AUTHORIZATION OF APPROPRIATIONS.

(a) PAYMENTS FOR FEDERAL ACQUISITION OF REAL PROPERTY.— For the purpose of making payments under section 8002, there are

authorized to be appropriated $32,000,000 for fiscal year 2000 and

such sums as may be necessary for each of the seven succeeding

fiscal years.

(b) BASIC PAYMENTS; PAYMENTS FOR HEAVILY IMPACTED LOCAL

EDUCATIONAL AGENCIES.—For the purpose of making payments

under section 8003(b), there are authorized to be appropriated

$809,400,000 for fiscal year 2000 and such sums as may be necessary for each of the seven succeeding fiscal years.

(c) PAYMENTS FOR CHILDREN WITH DISABILITIES.—For the purpose of making payments under section 8003(d), there are authorized to be appropriated $50,000,000 for fiscal year 2000 and such

sums as may be necessary for each of the seven succeeding fiscal

years.

ø(d) Repealed.¿

(e) CONSTRUCTION.—For the purpose of carrying out section 8007, there are authorized to be appropriated $10,052,000 for fiscal

year 2000 and such sums as may be necessary for fiscal year 2001,

$150,000,000 for fiscal year 2002, and such sums as may be necessary for each of the five succeeding fiscal years.

(f) FACILITIES MAINTENANCE.—For the purpose of carrying out

section 8008, there are authorized to be appropriated $5,000,000

for fiscal year 2000 and such sums as may be necessary for each

of the seven succeeding fiscal years.

b. National Defense Authorization Act for Fiscal Year 2004

(Public Law 108–136, approved Nov. 24, 2003)

TITLE V—MILITARY PERSONNEL POLICY

* * * * * * *

Subtitle D—Other Military Education and Training Matters

* * * * * * *
FY01 ANNUAL IMPACT AID 1070

SEC. 536. ASSISTANCE TO LOCAL EDUCATIONAL AGENCIES THAT BENEFIT DEPENDENTS OF MEMBERS OF THE ARMED FORCES

AND DEPARTMENT OF DEFENSE CIVILIAN EMPLOYEES.

(a) CONTINUATION OF DEPARTMENT OF DEFENSE PROGRAM FOR

FISCAL YEAR 2004.—Of the amount authorized to be appropriated

pursuant to section 301(5) for operation and maintenance for Defense-wide activities, $30,000,000 shall be available only for the

purpose of providing educational agencies assistance to local educational agencies.

(b) NOTIFICATION.—Not later than June 30, 2004, the Secretary

of Defense shall notify each local educational agency that is eligible

for educational agencies assistance for fiscal year 2004 of—

(1) that agency’s eligibility for the assistance; and

(2) the amount of the assistance for which that agency is

eligible.

(c) DISBURSEMENT OF FUNDS.—The Secretary of Defense shall

disburse funds made available under subsection (a) not later than

30 days after the date on which notification to the eligible local

educational agencies is provided pursuant to subsection (b).

(d) DEFINITIONS.—In this section:

(1) The term ‘‘educational agencies assistance’’ means assistance authorized under section 386(b) of the National Defense Authorization Act for Fiscal Year 1993 (Public Law 102–

484; 20 U.S.C. 7703 note).

(2) The term ‘‘local educational agency’’ has the meaning

given that term in section 8013(9) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7713(9)).

c. Floyd D. Spence National Defense Authorization Act for

Fiscal Year 2001

(as enacted into law by Public Law 106–398, approved Oct. 30, 2000)

TITLE III—OPERATION AND MAINTENANCE

* * * * * * *

Subtitle F—Defense Dependents Education

* * * * * * *

SEC. 363. ø20 U.S.C. 7703a¿ IMPACT AID FOR CHILDREN WITH SEVERE

DISABILITIES.

(a) PAYMENTS.—Subject to subsection (f ), the Secretary of Defense shall make a payment for fiscal years after fiscal year 2001,

to each local educational agency eligible to receive a payment for

a child described in subparagraph (A)(ii), (B), (D)(i) or (D)(ii) of section 8003(a)(1) of the Elementary and Secondary Education Act of

1965 (20 U.S.C. 7703(a)(1)) that serves two or more such children

with severe disabilities, for costs incurred in providing a free appropriate public education to each such child.

(b) PAYMENT AMOUNT.—The amount of the payment under

subsection (a) to a local educational agency for a fiscal year for

each child referred to in such subsection with a severe disability

shall be—

(1) the payment made on behalf of the child with a severe

disability that is in excess of the average per pupil expenditure
1071 FY01 ANNUAL IMPACT AID

in the State in which the local educational agency is located;

less

(2) the sum of the funds received by the local educational

agency—

(A) from the State in which the child resides to defray

the educational and related services for such child;

(B) under the Individuals with Disabilities Education

Act (20 U.S.C. 1400 et seq.) to defray the educational and

related services for such child; and

(C) from any other source to defray the costs of providing educational and related services to the child which

are received due to the presence of a severe disabling condition of such child.

(c) EXCLUSIONS.—No payment shall be made under subsection

(a) on behalf of a child with a severe disability whose individual

cost of educational and related services does not exceed—

(1) five times the national or State average per pupil expenditure (whichever is lower), for a child who is provided educational and related services under a program that is located

outside the boundaries of the school district of the local educational agency that pays for the free appropriate public education of the student; or

(2) three times the State average per pupil expenditure, for

a child who is provided educational and related services under

a program offered by the local educational agency, or within

the boundaries of the school district served by the local educational agency.

(d) RATABLE REDUCTION.—If the amount available for a fiscal

year for payments under subsection (a) is insufficient to pay the

full amount all local educational agencies are eligible to receive

under such subsection, the Secretary of Defense shall ratably reduce the amounts of the payments made under such subsection to

all local educational agencies by an equal percentage.

(e) REPORT.—Each local educational agency desiring a payment

under subsection (a) shall report to the Secretary of Defense—

(1) the number of severely disabled children for which a

payment may be made under this section; and

(2) a breakdown of the average cost, by placement (inside

or outside the boundaries of the school district of the local educational agency), of providing education and related services to

such children.

(f ) PAYMENTS SUBJECT TO APPROPRIATION.—Payments shall be

made for any period in a fiscal year under this section only to the

extent that funds are appropriated specifically for making such

payments for that fiscal year.

(g) LOCAL EDUCATIONAL AGENCY DEFINED.—In this section, the

term ‘‘local educational agency’’ has the meaning given that term

in section 8013(9) of the Elementary and Secondary Education Act

of 1965 (20 U.S.C. 7713(9)).

SEC. 364. ASSISTANCE FOR MAINTENANCE, REPAIR, AND RENOVATION

OF SCHOOL FACILITIES THAT SERVE DEPENDENTS OF

MEMBERS OF THE ARMED FORCES AND DEPARTMENT OF

DEFENSE CIVILIAN EMPLOYEES.

(a) REPAIR AND RENOVATION ASSISTANCE.—(1) During fiscal

year 2001, the Secretary of Defense may make a grant to an eligi-
FY01 ANNUAL IMPACT AID 1072

ble local educational agency to assist the agency to repair and

renovate—

(A) an impacted school facility that is used by significant

numbers of military dependent students; or

(B) a school facility that was a former Department of Defense domestic dependent elementary or secondary school.

(2) Authorized repair and renovation projects may include repairs and improvements to an impacted school facility (including

the grounds of the facility) designed to ensure compliance with the

requirements of the Americans with Disabilities Act of 1990 (42

U.S.C. 12101 et seq.) or local health and safety ordinances, to meet

classroom size requirements, or to accommodate school population

increases.

(3) The total amount of assistance provided under this subsection to an eligible local educational agency may not exceed

$2,500,000 during fiscal year 2001.

(b) MAINTENANCE ASSISTANCE.—(1) During fiscal year 2001,

the Secretary of Defense may make a grant to an eligible local educational agency whose boundaries are the same as a military installation to assist the agency to maintain an impacted school facility, including the grounds of such a facility.

(2) The total amount of assistance provided under this subsection to an eligible local educational agency may not exceed

$250,000 during fiscal year 2001.

(c) DETERMINATION OF ELIGIBLE LOCAL EDUCATIONAL AGEN- CIES.—(1) A local educational agency is an eligible local educational

agency under this section only if the Secretary of Defense determines that the local educational agency has—

(A) one or more federally impacted school facilities; and

(B) satisfies at least one of the following eligibility requirements:

(i) The local educational agency is eligible to receive

assistance under subsection (f ) of section 8003 of the Elementary and Secondary Education Act of 1965 (20 U.S.C.

7703) and at least 10 percent of the students who were in

average daily attendance in the schools of such agency

during the preceding school year were students described

under paragraph (1)(A) or (1)(B) of section 8003(a) of the

Elementary and Secondary Education Act of 1965.

(ii) At least 35 percent of the students who were in average daily attendance in the schools of the local educational agency during the preceding school year were students described under paragraph (1)(A) or (1)(B) of section

8003(a) of the Elementary and Secondary Education Act of

1965.

(iii) The State education system and the local educational agency are one and the same.

(2) A local educational agency is also an eligible local educational agency under this section if the local educational agency

has a school facility that was a former Department of Defense domestic dependent elementary or secondary school, but assistance

provided under subsection (a) may only be used to repair and renovate that specific facility.

(d) NOTIFICATION OF ELIGIBILITY.—Not later than April 30,

2001, the Secretary of Defense shall notify each local educational
1073 FY01 ANNUAL IMPACT AID

agency identified under subsection (c) that the local educational

agency is eligible to apply for a grant under subsection (a), subsection (b), or both subsections.

(e) RELATION TO IMPACT AID CONSTRUCTION ASSISTANCE.—A

local education agency that receives a grant under subsection (a)

to repair and renovate a school facility may not also receive a payment for school construction under section 8007 of the Elementary

and Secondary Education Act of 1965 (20 U.S.C. 7707) for fiscal

year 2001.

(f ) GRANT CONSIDERATIONS.—In determining which eligible

local educational agencies will receive a grant under this section,

the Secretary of Defense shall take into consideration the following

conditions and needs at impacted school facilities of eligible local

educational agencies:

(1) The repair or renovation of facilities is needed to meet

State mandated class size requirements, including studentteacher ratios and instructional space size requirements.

(2) There is an increase in the number of military dependent students in facilities of the agency due to increases in unit

strength as part of military readiness.

(3) There are unhoused students on a military installation

due to other strength adjustments at military installations.

(4) The repair or renovation of facilities is needed to address any of the following conditions:

(A) The condition of the facility poses a threat to the

safety and well-being of students.

(B) The requirements of the Americans with Disabilities Act of 1990.

(C) The cost associated with asbestos removal, energy

conservation, or technology upgrades.

(D) Overcrowding conditions as evidenced by the use

of trailers and portable buildings and the potential for future overcrowding because of increased enrollment.

(5) The repair or renovation of facilities is needed to meet

any other Federal or State mandate.

(6) The number of military dependent students as a percentage of the total student population in the particular school

facility.

(7) The age of facility to be repaired or renovated.

(g) DEFINITIONS.—In this section:

(1) LOCAL EDUCATIONAL AGENCY.—The term ‘‘local educational agency’’ has the meaning given that term in section

8013(9) of the Elementary and Secondary Education Act of

1965 (20 U.S.C. 7713(9)).

(2) IMPACTED SCHOOL FACILITY.—The term ‘‘impacted

school facility’’ means a facility of a local educational agency—

(A) that is used to provide elementary or secondary

education at or near a military installation; and

(B) at which the average annual enrollment of military

dependent students is a high percentage of the total student enrollment at the facility, as determined by the Secretary of Defense.

(3) MILITARY DEPENDENT STUDENTS.—The term ‘‘military

dependent students’’ means students who are dependents of
FY93 ANNUAL IMPACT AID 1074

members of the armed forces or Department of Defense civilian

employees.

(4) MILITARY INSTALLATION.—The term ‘‘military installation’’ has the meaning given that term in section 2687(e) of

title 10, United States Code.

(h) FUNDING SOURCE.—The amount authorized to be appropriated under section 301(25) for Quality of Life Enhancements,

Defense-Wide, shall be available to the Secretary of Defense to

make grants under this section.

d. National Defense Authorization Act for Fiscal Year 1993

(Public Law 102–484, approved Oct. 23, 1992)

TITLE III—OPERATION AND MAINTENANCE

* * * * * * *

Subtitle G—Other Matters

* * * * * * *

SEC. 386. ø20 U.S.C. 7703 note¿ ASSISTANCE TO LOCAL EDUCATIONAL

AGENCIES THAT BENEFIT DEPENDENTS OF MEMBERS OF

THE ARMED FORCES AND DEPARTMENT OF DEFENSE CIVILIAN EMPLOYEES.

(a) ASSISTANCE AUTHORIZED.—The Secretary of Defense, in

consultation with the Secretary of Education, shall provide financial assistance to local educational agencies in States as provided

in this section.

(b) SCHOOLS WITH SIGNIFICANT NUMBERS OF MILITARY DE- PENDENT STUDENTS.—The Secretary of Defense shall provide financial assistance to an eligible local educational agency described in

subsection (c) if, without such assistance, that agency will be unable (as determined by the Secretary of Defense in consultation

with the Secretary of Education) to provide the students in the

schools of the agency with a level of education that is equivalent

to the minimum level of education available in the schools of the

other local educational agencies in the same State.

(c) ELIGIBLE LOCAL EDUCATIONAL AGENCIES.—A local educational agency is eligible for assistance under subsection (b) for a

fiscal year if—

(1) at least 20 percent (as rounded to the nearest whole

percent) of the students in average daily attendance in the

schools of that agency during the preceding school year were

military dependent students counted under section 8003(a)(1)

of the Elementary and Secondary Education Act of 1965 (20

U.S.C. 7703(a)(1));

(2) there has been a significant increase, as determined by

the Secretary of Defense, in the number of military dependent

students in average daily attendance in the schools of that

agency as a result of a relocation of Armed Forces personnel

or civilian employees of the Department of Defense or as a result of a realignment of one or more military installations; or

(3) by reason of a consolidation or reorganization of local

educational agencies, the local educational agency is a successor of a local educational agency that, for fiscal year 1992—
1075 FY93 ANNUAL IMPACT AID

(A) was eligible to receive payments in accordance

with Department of Defense Instruction 1342.18, dated

June 3, 1991; and

(B) satisfied the requirement in paragraph (1) or (2).

(d) ADJUSTMENTS RELATED TO BASE CLOSURES AND REALIGNMENTS.—To assist communities in making adjustments resulting

from reductions in the size of the Armed Forces, the Secretary of

Defense shall, in consultation with the Secretary of Education,

make payments to local educational agencies that, during the period between the end of the school year preceding the fiscal year

for which the payments are authorized and the beginning of the

school year immediately preceding that school year, had an overall

reduction of not less than 20 percent in the number of military dependent students as a result of the closure or realignment of military installations.

(e) REPORT ON IMPACT OF BASE CLOSURES ON EDUCATIONAL

AGENCIES.—(1) Not later than February 15 of each of 1993, 1994,

1995, and 1996, the Secretary of Defense, in consultation with the

Secretary of Education, shall submit to Congress a report on the

local educational agencies affected by the closures and realignment

of military installations and by redeployments of members of the

Armed Forces.

(2) Each report shall contain the following:

(A) The number of dependent children of members of the

Armed Forces or civilian employees of the Department of Defense who entered the schools of the local educational agencies

during the preceding school year as a result of closures, realignments, or redeployments.

(B) The number of dependent children of such members or

employees who withdrew from the schools of the local educational agencies during that school year as a result of closures, realignments, or redeployments.

(C) The amounts paid to the local educational agencies

during that year under the Act of September 30, 1950 (Public

Law 874, Eighty-first Congress; 20 U.S.C. 236 et seq.), title

VIII of the Elementary and Secondary Education Act of 1965

(20 U.S.C. 7701 et seq.), or any other provision of law authorizing the payment of financial assistance to local communities

or local educational agencies on the basis of the presence of dependent children of such members or employees in such communities and in the schools of such agencies.

(D) The projected transfers of such members and employees in connection with closures, realignments, and redeployments during the 12-month period beginning on the date of the

report, including—

(i) the installations to be closed or realigned;

(ii) the installations to which personnel will be transferred as a result of closures, realignments, and redeployments; and

(iii) the effects of such transfers on the number of dependent children who will be included in determinations

with respect to the payment of funds to each affected local

educational agency.
FY93 ANNUAL IMPACT AID 1076

(f) FUNDING.—Of the amounts appropriated for the Department of Defense for operation and maintenance in fiscal year 1993

pursuant to the authorization of appropriations in section 301—

(1) $50,000,000 shall be available for providing assistance

to local educational agencies under subsection (b); and

(2) $8,000,000 shall be available for making payments to

local educational agencies under subsection (d).

(g) LIMITATION ON TRANSFER AND OBLIGATION OF FUNDS.—(1)

The amount made available pursuant to subsection (f)(2) for adjustment assistance related to base closures and realignments under

subsection (d) may be obligated for such adjustment assistance only

if expenditures for that adjustment assistance for fiscal year 1993

have been determined by the Director of the Office of Management

and Budget to be counted against the defense category of the discretionary spending limits for fiscal year 1993 (as defined in section

601(a)(2) of the Congressional Budget Act of 1974) for purposes of

part C of the Balanced Budget and Emergency Deficit Control Act

of 1985.

(2) Not later than the third day after the date of the enactment

of this Act, the Director of the Office of Management and Budget

shall make a determination as to the classification by discretionary

spending limit category for purposes of the Balanced Budget and

Emergency Deficit Control Act of 1985 of the amount appropriated

for adjustment assistance related to base closures and realignments under subsection (d). If the Director determines that the

amount shall not classify against the defense category (as described

in paragraph (1)), then the President shall submit to Congress a report stating that the Director has made such a determination and

the amount that will not classify against the defense category and

containing an explanation for the determination.

(3) The amount listed in the report under paragraph (2) may

be transferred only to the programs under title III other than the

program under subsection (d) pursuant to amounts specified in appropriation Acts. Any such transfer shall be taken into account for

purposes of calculating all reports under section 254 of the Balanced Budget and Emergency Deficit Control Act of 1985.

(h) DEFINITIONS.—In this section:

(1) The term ‘‘local educational agency’’ has the meaning

given that term in section 8013(9) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7713(9)).

(2) The term ‘‘military dependent student’’ means a student that is—

(A) a dependent child of a member of the Armed

Forces; or

(B) a dependent child of a civilian employee of the Department of Defense.

(3) The term ‘‘State’’ means each of the 50 States and the

District of Columbia.
1077

4. COORDINATION OF PERMANENT CHANGE OF

STATION MOVES WITH SCHOOL YEAR

Section 612 of the Department of Defense Authorization Act,

1987

(Public Law 99–661; approved Nov. 14, 1986)

SEC. 612. ø10 U.S.C. 113 note¿ COORDINATION OF PERMANENT CHANGE

OF STATION MOVES WITH SCHOOL YEAR

The Secretary of each military department shall establish procedures to ensure that, to the maximum extent practicable within

operational and other military requirements, permanent change of

station moves for members of the Armed Forces under the jurisdiction of the Secretary who have dependents in elementary or secondary school occur at times that avoid disruption of the school

schedules of such dependents.

1079

5. REGULATIONS REGARDING EMPLOYMENT AND VOLUNTEER WORK OF SPOUSES OF MILITARY PERSONNEL

Section 637 of the National Defense Authorization Act for

Fiscal Years 1988 and 1989

(Public Law 100–180, approved Dec. 4, 1987)

SEC. 637. ø10 U.S.C. 113 note¿ REGULATIONS REGARDING EMPLOYMENT

AND VOLUNTEER WORK OF SPOUSES OF MILITARY PERSONNEL

Not later than 60 days after the date of the enactment of this

Act [Dec. 4, 1987], the Secretary of Defense shall prescribe regulations to establish the policy that—

(1) the decision by a spouse of a member of the Armed

Forces to be employed or to voluntarily participate in activities

relating to the Armed Forces should not be influenced by the

preferences or requirements of the Armed Forces; and

(2) neither such decision nor the marital status of a member of the Armed Forces should have an effect on the assignment or promotion opportunities of the member.

1081

6. PREVENTION OF DOMESTIC VIOLENCE

a. Section 534 of the National Defense Authorization Act for

Fiscal Year 1995

(Public Law 103–337, approved Oct. 5, 1994)

SEC. 534. ø10 U.S.C. 113 note¿ VICTIMS’ ADVOCATES PROGRAMS IN DEPARTMENT OF DEFENSE.

(a) ESTABLISHMENT.—(1) The Secretary of Defense, acting

through the Under Secretary of Defense for Personnel and Readiness, shall revise policies and regulations of the Department of Defense with respect to the programs of the Department of Defense

specified in paragraph (2) in order to establish within each of the

military departments a victims’ advocates program.

(2) Programs referred to in paragraph (1) are the following:

(A) Victim and witness assistance programs.

(B) Family advocacy programs.

(C) Equal opportunity programs.

(3) In the case of the Department of the Navy, separate victims’ advocates programs shall be established for the Navy and the

Marine Corps.

(b) PURPOSE.—A victims’ advocates program established pursuant to subsection (a) shall provide assistance described in subsection (d) to members of the Armed Forces and their dependents

who are victims of any of the following:

(1) Crime.

(2) Intrafamilial sexual, physical, or emotional abuse.

(3) Discrimination or harassment based on race, gender,

ethnic background, national origin, or religion.

(c) INTERDISCIPLINARY COUNCILS.—(1) The Secretary of Defense

shall establish a Department of Defense council to coordinate and

oversee the implementation of programs under subsection (a). The

membership of the council shall be selected from members of the

Armed Forces and officers and employees of the Department of Defense having expertise or experience in a variety of disciplines and

professions in order to ensure representation of the full range of

services and expertise that will be needed in implementing those

programs.

(2) The Secretary of each military department shall establish

similar interdisciplinary councils within that military department

as appropriate to ensure the fullest coordination and effectiveness

of the victims’ advocates program of that military department. To

the extent practicable, such a council shall be established at each

significant military installation.

(d) ASSISTANCE.—(1) Under a victims’ advocates program established under subsection (a), individuals working in the program
Sec. 591 PREVENTION OF DOMESTIC VIOLENCE 1082

shall principally serve the interests of a victim by initiating action

to provide (A) information on available benefits and services, (B)

assistance in obtaining those benefits and services, and (C) other

appropriate assistance.

(2) Services under such a program in the case of an individual

who is a victim of family violence (including intrafamilial sexual,

physical, and emotional abuse) shall be provided principally

through the family advocacy programs of the military departments.

(e) STAFFING.—The Secretary of Defense shall provide for the

assignment of personnel (military or civilian) on a full-time basis

to victims’ advocates programs established pursuant to subsection

(a). The Secretary shall ensure that sufficient numbers of such fulltime personnel are assigned to those programs to enable those programs to be carried out effectively.

(f) IMPLEMENTATION DEADLINE.—Subsection (a) shall be carried

out not later than six months after the date of the enactment of

this Act.

(g) IMPLEMENTATION REPORT.—Not later than 30 days after the

date on which Department of Defense policies and regulations are

revised pursuant to subsection (a), the Secretary of Defense shall

submit to the Committees on Armed Services of the Senate and

House of Representatives a report on the implementation (and

plans for implementation) of this section.

b. Subtitle K of title V of the National Defense Authorization

Act for Fiscal Year 2000

(Public Law 106–65, approved Oct. 5, 1997)

Subtitle K—Domestic Violence

SEC. 591. ø10 U.S.C. 1562 note¿ DEFENSE TASK FORCE ON DOMESTIC VIOLENCE.

(a) ESTABLISHMENT.—The Secretary of Defense shall establish

a Department of Defense task force to be known as the Defense

Task Force on Domestic Violence.

(b) STRATEGIC PLAN.—Not later than 12 months after the date

on which all members of the task force have been appointed, the

task force shall submit to the Secretary of Defense a long-term

plan (referred to as a ‘‘strategic plan’’) for means by which the Department of Defense may address matters relating to domestic violence within the military more effectively. The plan shall include

an assessment of, and recommendations for measures to improve,

the following:

(1) Ongoing victims’ safety programs.

(2) Offender accountability.

(3) The climate for effective prevention of domestic violence.

(4) Coordination and collaboration among all military organizations with responsibility or jurisdiction with respect to domestic violence.

(5) Coordination between military and civilian communities with respect to domestic violence.

(6) Research priorities.

(7) Data collection and case management and tracking.
1083 Sec. 591 PREVENTION OF DOMESTIC VIOLENCE

(8) Curricula and training for military commanders.

(9) Prevention and responses to domestic violence at overseas military installations.

(10) Other issues identified by the task force relating to

domestic violence within the military.

(c) REVIEW OF VICTIMS’ SAFETY PROGRAM.—The task force shall

review the efforts of the Secretary of Defense to establish a program for improving responses to domestic violence under section

592 and shall include in its report under subsection (e) a description of that program, including best practices identified on installations, lessons learned, and resulting policy recommendations.

(d) OTHER TASK FORCE REVIEWS.—The task force shall review

and make recommendations regarding the following:

(1) Standard guidelines to be used by the Secretaries of the

military departments in negotiating agreements with civilian

law enforcement authorities relating to acts of domestic violence involving members of the Armed Forces.

(2) A requirement (A) that when a commanding officer

issues to a member of the Armed Forces under that officer’s

command an order that the member not have contact with a

specified person that a written copy of that order be provided

within 24 hours after the issuance of the order to the person

with whom the member is ordered not to have contact, and (B)

that there be a system of recording and tracking such orders.

(3) Standard guidelines on the factors for commanders to

consider when seeking to substantiate allegations of domestic

violence by a person subject to the Uniform Code of Military

Justice and when determining appropriate action for such allegations that are so substantiated.

(4) A standard training program for all commanding officers in the Armed Forces, including a standard curriculum, on

the handling of domestic violence cases.

(e) ANNUAL REPORT.—(1) The task force shall submit to the

Secretary an annual report on its activities and on the activities of

the military departments to respond to domestic violence in the

military.

(2) The first such report shall be submitted not later than the

date specified in subsection (b) and shall be submitted with the

strategic plan submitted under that subsection. The task force

shall include in that report the following:

(A) Analysis and oversight of the efforts of the military departments to respond to domestic violence in the military and

a description of barriers to implementation of improvements in

those efforts.

(B) A description of the activities and achievements of the

task force.

(C) A description of successful and unsuccessful programs.

(D) A description of pending, completed, and recommended

Department of Defense research relating to domestic violence.

(E) Such recommendations for policy and statutory

changes as the task force considers appropriate.

(3) Each subsequent annual report shall include the following:

(A) A detailed discussion of the achievements in responses

to domestic violence in the Armed Forces.

(B) Pending research on domestic violence.
Sec. 591 PREVENTION OF DOMESTIC VIOLENCE 1084

(C) Any recommendations for actions to improve the responses of the Armed Forces to domestic violence in the Armed

Forces that the task force considers appropriate.

(4) Within 90 days of receipt of a report under paragraph (2)

or (3), the Secretary shall submit the report and the Secretary’s

evaluation of the report to the Committees on Armed Services of

the Senate and House of Representatives. The Secretary shall include with the report the information collected pursuant to section

1562(b) of title 10, United States Code, as added by section 594.

(f) MEMBERSHIP.—(1) The task force shall consist of not more

than 24 members, to be appointed by the Secretary of Defense.

Members shall be appointed from each of the Army, Navy, Air

Force, and Marine Corps and shall include an equal number of Department of Defense personnel (military or civilian) and persons

from outside the Department of Defense. Members appointed from

outside the Department of Defense may be appointed from other

Federal departments and agencies, from State and local agencies,

or from the private sector.

(2) The Secretary shall ensure that the membership of the task

force includes a judge advocate representative from each of the

Army, Navy, Air Force, and Marine Corps.

(3)(A) In consultation with the Attorney General, the Secretary

shall appoint to the task force a representative or representatives

from the Office of Justice Programs of the Department of Justice.

(B) In consultation with the Secretary of Health and Human

Services, the Secretary shall appoint to the task force a representative from the Family Violence Prevention and Services office of the

Department of Health and Human Services.

(4) Each member of the task force appointed from outside the

Department of Defense shall be an individual who has demonstrated expertise in the area of domestic violence or shall be appointed from one of the following:

(A) A national domestic violence resource center established under section 308 of the Family Violence Prevention and

Services Act (42 U.S.C. 10407).

(B) A national sexual assault and domestic violence policy

and advocacy organization.

(C) A State domestic violence and sexual assault coalition.

(D) A civilian law enforcement agency.

(E) A national judicial policy organization.

(F) A State judicial authority.

(G) A national crime victim policy organization.

(5) The members of the task force shall be appointed not later

than 90 days after the date of the enactment of this Act.

(g) CO-CHAIRS OF THE TASK FORCE.—There shall be two cochairs of the task force. One of the co-chairs shall be designated by

the Secretary of Defense at the time of appointment from among

the Department of Defense personnel on the task force. The other

co-chair shall be selected from among the members appointed from

outside the Department of Defense by those members.

(h) ADMINISTRATIVE SUPPORT.—(1) Each member of the task

force who is a member of the Armed Forces or civilian officer or

employee of the United States shall serve without compensation

(other than the compensation to which entitled as a member of the

Armed Forces or an officer or employee of the United States, as the
1085 Sec. 592 PREVENTION OF DOMESTIC VIOLENCE

case may be). Other members of the task force shall be appointed

in accordance with, and subject to, section 3161 of title 5, United

States Code.

(2) The Assistant Secretary of Defense for Force Management

Policy, under the direction of the Under Secretary of Defense for

Personnel and Readiness, shall provide oversight of the task force.

The Washington Headquarters Service shall provide the task force

with the personnel, facilities, and other administrative support that

is necessary for the performance of the task force’s duties.

(3) The Assistant Secretary shall coordinate with the Secretaries of the military departments to provide visits of the task force

to military installations.

(i) FEDERAL ADVISORY COMMITTEE ACT.—The Federal Advisory

Committee Act (5 U.S.C. App) shall not apply to the task force.

(j) TERMINATION.—The task force shall terminate on April 24,

2003.

SEC. 592. ø10 U.S.C. 1562 note¿ INCENTIVE PROGRAM FOR IMPROVING

RESPONSES TO DOMESTIC VIOLENCE INVOLVING MEMBERS OF THE ARMED FORCES AND MILITARY FAMILY

MEMBERS.

(a) PURPOSE.—The purpose of this section is to provide a program for the establishment on military installations of collaborative projects involving appropriate elements of the Armed Forces

and the civilian community to improve, strengthen, or coordinate

prevention and response efforts to domestic violence involving

members of the Armed Forces, military family members, and others.

(b) PROGRAM.—The Secretary of Defense shall establish a program to provide funds and other incentives to commanders of military installations for the following purposes:

(1) To improve coordination between military and civilian

law enforcement authorities in policies, training, and responses

to, and tracking of, cases involving military domestic violence.

(2) To develop, implement, and coordinate with appropriate civilian authorities tracking systems (A) for protective

orders issued to or on behalf of members of the Armed Forces

by civilian courts, and (B) for orders issued by military commanders to members of the Armed Forces ordering them not

to have contact with a dependent.

(3) To strengthen the capacity of attorneys and other legal

advocates to respond appropriately to victims of military domestic violence.

(4) To assist in educating judges, prosecutors, and legal offices in improved handling of military domestic violence cases.

(5) To develop and implement more effective policies, protocols, orders, and services specifically devoted to preventing,

identifying, and responding to domestic violence.

(6) To develop, enlarge, or strengthen victims’ services programs, including sexual assault and domestic violence programs, developing or improving delivery of victims’ services,

and providing confidential access to specialized victims’ advocates.

(7) To develop and implement primary prevention programs.
Sec. 593 PREVENTION OF DOMESTIC VIOLENCE 1086

(8) To improve the response of health care providers to incidents of domestic violence, including the development and

implementation of screening protocols.

(c) PRIORITY.—The Secretary shall give priority in providing

funds and other incentives under the program to installations at

which the local program will emphasize building or strengthening

partnerships and collaboration among military organizations such

as family advocacy program, military police or provost marshal organizations, judge advocate organizations, legal offices, health affairs offices, and other installation-level military commands between those organizations and appropriate civilian organizations,

including civilian law enforcement, domestic violence advocacy organizations, and domestic violence shelters.

(d) APPLICATIONS.—The Secretary shall establish guidelines for

applications for an award of funds under the program to carry out

the program at an installation.

(e) AWARDS.—The Secretary shall determine the award of

funds and incentives under this section. In making a determination

of the installations to which funds or other incentives are to be provided under the program, the Secretary shall consult with an

award review committee consisting of representatives from the

Armed Forces, the Department of Justice, the Department of

Health and Human Services, and organizations with a demonstrated expertise in the areas of domestic violence and victims’

safety.

SEC. 593. ø10 U.S.C. 1562 note¿ UNIFORM DEPARTMENT OF DEFENSE

POLICIES FOR RESPONSES TO DOMESTIC VIOLENCE.

(a) REQUIREMENT.—The Secretary of Defense shall prescribe

the following:

(1) Standard guidelines to be used by the Secretaries of the

military departments for negotiating agreements with civilian

law enforcement authorities relating to acts of domestic violence involving members of the Armed Forces.

(2) A requirement (A) that when a commanding officer

issues to a member of the Armed Forces under that officer’s

command an order that the member not have contact with a

specified person that a written copy of that order be provided

within 24 hours after the issuance of the order to the person

with whom the member is ordered not to have contact, and (B)

that there be a system of recording and tracking such orders.

(3) Standard guidelines on the factors for commanders to

consider when seeking to substantiate allegations of domestic

violence by a person subject to the Uniform Code of Military

Justice and when determining appropriate action for such allegations that are so substantiated.

(4) A standard training program for all commanding officers in the Armed Forces, including a standard curriculum, on

the handling of domestic violence cases.

(b) DEADLINE.—The Secretary of Defense shall carry out subsection (a) not later than six months after the date on which the

Secretary receives the first report of the Defense Task Force on Domestic Violence under section 591(e).

* * * * * * *
1087

7. CHILD SUPPORT AND ALIMONY OBLIGATIONS

a. Section 363 of the Personal Responsibility and Work

Opportunity Reconciliation Act of 1996

(Public Law 104–193, approved Aug. 22, 1996)

SEC. 363. ø10 U.S.C. 113 note¿ ENFORCEMENT OF CHILD SUPPORT OBLIGATIONS OF MEMBERS OF THE ARMED FORCES.

(a) AVAILABILITY OF LOCATOR INFORMATION.—

(1) MAINTENANCE OF ADDRESS INFORMATION.—The Secretary of Defense shall establish a centralized personnel locator service that includes the address of each member of the

Armed Forces under the jurisdiction of the Secretary. Upon request of the Secretary of Homeland Security, addresses for

members of the Coast Guard shall be included in the centralized personnel locator service.

(2) TYPE OF ADDRESS.—

(A) RESIDENTIAL ADDRESS.—Except as provided in subparagraph (B), the address for a member of the Armed

Forces shown in the locator service shall be the residential

address of that member.

(B) DUTY ADDRESS.—The address for a member of the

Armed Forces shown in the locator service shall be the

duty address of that member in the case of a member—

(i) who is permanently assigned overseas, to a vessel, or to a routinely deployable unit; or

(ii) with respect to whom the Secretary concerned

makes a determination that the member’s residential

address should not be disclosed due to national security or safety concerns.

(3) UPDATING OF LOCATOR INFORMATION.—Within 30 days

after a member listed in the locator service establishes a new

residential address (or a new duty address, in the case of a

member covered by paragraph (2)(B)), the Secretary concerned

shall update the locator service to indicate the new address of

the member.

(4) AVAILABILITY OF INFORMATION.—The Secretary of Defense shall make information regarding the address of a member of the Armed Forces listed in the locator service available,

on request, to the Federal Parent Locator Service established

under section 453 of the Social Security Act.

(b) FACILITATING GRANTING OF LEAVE FOR ATTENDANCE AT

HEARINGS.—

(1) REGULATIONS.—The Secretary of each military department, and the Secretary of Homeland Security with respect to

the Coast Guard when it is not operating as a service in the
Sec. 1061 CHILD SUPPORT AND ALIMONY OBLIGATIONS 1088

Navy, shall prescribe regulations to facilitate the granting of

leave to a member of the Armed Forces under the jurisdiction

of that Secretary in a case in which—

(A) the leave is needed for the member to attend a

hearing described in paragraph (2);

(B) the member is not serving in or with a unit deployed in a contingency operation (as defined in section

101 of title 10, United States Code); and

(C) the exigencies of military service (as determined by

the Secretary concerned) do not otherwise require that

such leave not be granted.

(2) COVERED HEARINGS.—Paragraph (1) applies to a hearing that is conducted by a court or pursuant to an administrative process established under State law, in connection with a

civil action—

(A) to determine whether a member of the Armed

Forces is a natural parent of a child; or

(B) to determine an obligation of a member of the

Armed Forces to provide child support.

(3) DEFINITIONS.—For purposes of this subsection—

(A) The term ‘‘court’’ has the meaning given that term

in section 1408(a) of title 10, United States Code.

(B) The term ‘‘child support’’ has the meaning given

such term in section 459(i) of the Social Security Act (42

U.S.C. 659(i)).

(c) PAYMENT OF MILITARY RETIRED PAY IN COMPLIANCE WITH

CHILD SUPPORT ORDERS.—[Omitted-Amendments]

b. Section 1061 of the Strom Thurmond National Defense

Authorization Act for Fiscal Year 1999

(Public Law 105–261, approved Oct. 17, 1998)

SEC. 1061. ø5 U.S.C. 5520a note¿ PILOT PROGRAM ON ALTERNATIVE NOTICE OF RECEIPT OF LEGAL PROCESS FOR GARNISHMENT OF FEDERAL PAY FOR CHILD SUPPORT AND ALIMONY.

(a) PROGRAM REQUIRED.—The Secretary of Defense shall conduct a pilot program on alternative notice procedures for withholding or garnishment of pay for the payment of child support and

alimony under section 459 of the Social Security Act (42 U.S.C.

659).

(b) PURPOSE.—The purpose of the pilot program is to test the

efficacy of providing notice in accordance with subsection (c) to the

person whose pay is to be withheld or garnished.

(c) AUTHORIZATION OF ALTERNATIVE TO PROVIDING COPY OF

NOTICE OR SERVICE RECEIVED BY THE SECRETARY.—(1) Under the

pilot program, whenever the Secretary of Defense (acting through

the DOD section 459 agent) provides a section 459 notice to an individual, the Secretary may include as part of that notice the information specified in subsection (e) in lieu of sending with that notice

a copy (otherwise required pursuant to the parenthetical phrase in

section 459(c)(2)(A) of the Social Security Act) of the notice or service received by the DOD section 459 agent with respect to that individual’s child support or alimony payment obligations.
1089 Sec. 1061 CHILD SUPPORT AND ALIMONY OBLIGATIONS

(2) Under the pilot program, whenever the Secretary of Defense (acting through the DOD section 5520a agent) provides a section 5520a notice to an individual, the Secretary may include as

part of that notice the information specified in subsection (e) in lieu

of sending with that notice a copy (otherwise required pursuant to

the second parenthetical phrase in section 5520a(c) of title 5,

United States Code) of the legal process received by the DOD section 5520a agent with respect to that individual.

(d) DEFINITIONS.—For purposes of this section:

(1) DOD SECTION 459 AGENT.—The term ‘‘DOD section 459

agent’’ means the agent or agents designated by the Secretary

of Defense under subsection (c)(1)(A) of section 459 of the Social Security Act (42 U.S.C. 659) to receive orders and accept

service of process in matters related to child support or alimony.

(2) SECTION 459 NOTICE.—The term ‘‘section 459 notice’’

means, with respect to the Department of Defense, the notice

required by subsection (c)(2)(A) of section 459 of the Social Security Act (42 U.S.C. 659) to be sent to an individual in writing

upon the receipt by the DOD section 459 agent of notice or

service with respect to the individual’s child support or alimony payment obligations.

(3) DOD SECTION 5520A AGENT.—The term ‘‘DOD section

5520a agent’’ means a person who is designated by law or regulation to accept service of process to which the Department of

Defense is subject under section 5520a of title 5, United States

Code (including the regulations promulgated under subsection

(k) of that section).

(4) SECTION 5520A NOTICE.—The term ‘‘section 5520a notice’’ means, with respect to the Department of Defense, the

notice required by subsection (c) of section 5520a of title 5,

United States Code, to be sent in writing to an employee (or,

pursuant to the regulations promulgated under subsection (k)

of that section, to a member of the Armed Forces) upon the receipt by the DOD section 5520a agent of legal process covered

by that section.

(e) ALTERNATIVE REQUIREMENTS.—The information referred to

in subsection (c) that is to be included as part of a section 459 notice or section 5520a notice sent to an individual (in lieu of sending

with that notice a copy of the notice or service received by the DOD

section 459 agent or the DOD section 5520a agent) is the following:

(1) A description of the pertinent court order, notice to

withhold, or other order, process, or interrogatory received by

the DOD section 459 agent or the DOD section 5520a agent.

(2) The identity of the court or judicial forum involved and

(in the case of a notice or process concerning the ordering of

a support or alimony obligation) the case number, the amount

of the obligation, and the name of the beneficiary.

(3) Information on how the individual may obtain from the

Department of Defense a copy of the notice, service, or legal

process, including an address and telephone number that the

individual may be contacted for the purpose of obtaining such

a copy.

(f ) PERIOD OF PILOT PROGRAM.—The Secretary shall commence

the pilot program not later than 90 days after the date of the en-
Sec. 1061 CHILD SUPPORT AND ALIMONY OBLIGATIONS 1090

actment of this Act. The pilot program shall terminate on September 30, 2001.

(g) REPORT.—Not later than January 1, 2001, the Secretary

shall submit to Congress a report describing the experience of the

Department of Defense under the authority provided by this section. The report shall include the following:

(1) The number of section 459 notices provided by the DOD

section 459 agent during the period the authority provided by

this section was in effect.

(2) The number of individuals who requested the DOD section 459 agent to provide to them a copy of the actual notice

or service.

(3) Any complaint the Secretary received by reason of not

having provided the actual notice or service in the section 459

notice.

(4) The number of section 5520a notices provided by the

DOD section 5520a agent during the period the authority provided by this section was in effect.

(5) The number of individuals who requested the DOD section 5520a agent to provide to them a copy of the actual legal

process.

(6) Any complaint the Secretary received by reason of not

having provided the actual legal process in the section 5520a

notice.
1091

8. RECOGNITION OF MILITARY FAMILIES

Section 581 of the National Defense Authorization Act for

Fiscal Year 2004

(Public Law 108–136, approved Nov. 24, 2003)

SEC. 581. ø10 U.S.C. 1781 note¿ RECOGNITION OF MILITARY FAMILIES.

(a) FINDINGS.—Congress makes the following findings:

(1) The families of both active and reserve component

members of the Armed Forces, through their sacrifices and

their dedication to the Nation and its values, contribute immeasurably to the readiness of the Armed Forces.

(2) Without the continued support of military families, the

Nation’s ability to sustain a high quality all-volunteer military

force would be undermined.

(3) In the perilous and challenging times of the global war

on terrorism, with hundreds of thousands of active and reserve

component military personnel deployed overseas in places of

combat and other imminent danger, military families are making extraordinary sacrifices and will be required to do so for

the foreseeable future.

(4) Beginning in 1997, military family service and support

centers have responded to the encouragement and support of

private, non-profit organizations to recognize and honor the

American military family during the Thanksgiving period each

November.

(b) MILITARY FAMILY RECOGNITION.—In view of the findings in

subsection (a), Congress determines that it is appropriate that special measures be taken annually to recognize and honor the American military family.

(c) DEPARTMENT OF DEFENSE PROGRAMS AND ACTIVITIES.—The

Secretary of Defense shall—

(1) implement and sustain programs, including appropriate

ceremonies and activities, to recognize and honor the contributions and sacrifices of the American military family, including

families of both active and reserve component military personnel;

(2) focus the celebration of the American military family

during a specific period of each year to give full and proper recognition to those families; and

(3) seek the assistance and support of appropriate civilian

organizations, associations, and other entities (A) in carrying

out the annual celebration of the American military family,

and (B) in sustaining other, longer-term efforts to support the

American military family.

1093

I. DEFENSE INDUSTRIAL BASE, ECONOMIC

CONVERSION AND TRANSITION, AND WORKFORCE AND DEPOT ISSUES

[As amended through the end of the first session of the

108th Congress, December 31, 2003]

1095

1. PROVISIONS FROM DEFENSE CONVERSION,

REINVESTMENT, AND TRANSITION ASSISTANCE ACTS

a. Defense Conversion, Reinvestment, and Transition

Assistance Amendments of 1993

(Title XIII of the National Defense Authorization Act for Fiscal Year 1994; Public

Law 103–160, approved Nov. 30, 1993)

TITLE XIII—DEFENSE CONVERSION, REINVESTMENT,

AND TRANSITION ASSISTANCE

SEC. 1301. SHORT TITLE.

This title may be cited as the ‘‘Defense Conversion, Reinvestment, and Transition Assistance Amendments of 1993’’.

* * * * * * *

Subtitle C—Personnel Adjustment, Education, and Training

Programs

* * * * * * *

SEC. 1333. ø10 U.S.C. 2701 note¿ GRANTS TO INSTITUTIONS OF HIGHER

EDUCATION TO PROVIDE EDUCATION AND TRAINING IN

ENVIRONMENTAL RESTORATION TO DISLOCATED DEFENSE WORKERS AND YOUNG ADULTS.

(a) GRANT PROGRAM AUTHORIZED.—(1) The Secretary of Defense may establish a program to provide demonstration grants to

institutions of higher education to assist such institutions in providing education and training in environmental restoration and

hazardous waste management to eligible dislocated defense workers and young adults described in subsection (d). The Secretary

shall award the grants pursuant to a merit-based selection process.

(2) A grant provided under this subsection may cover a period

of not more than three fiscal years, except that the payments under

the grant for the second and third fiscal year shall be subject to

the approval of the Secretary and to the availability of appropriations to carry out this section in that fiscal year.

(b) APPLICATION.—To be eligible for a grant under subsection

(a), an institution of higher education shall submit an application

to the Secretary at such time, in such form, and containing such

information as the Secretary may require. The application shall include the following:

(1) An assurance by the institution of higher education

that it will use the grant to supplement and not supplant nonFederal funds that would otherwise be available for the education and training activities funded by the grant.

(2) A proposal by the institution of higher education to provide expertise, training, and education in hazardous materials
93Act INDUSTRIAL BASE AND DEFENSE WORKFORCE 1096

and waste management and other environmental fields applicable to defense manufacturing sites and Department of Defense and Department of Energy defense facilities.

(c) USE OF GRANT FUNDS.—(1) An institution of higher education receiving a grant under subsection (a) shall use the grant to

establish a consortium consisting of the institution and one or more

of each of the entities described in paragraph (2) for the purpose

of establishing and conducting a program to provide education and

training in environmental restoration and waste management to eligible individuals described in subsection (d). To the extent practicable, the Secretary shall authorize the consortium to use a military installation closed or selected to be closed under a base closure

law in providing on-site basic skills training to participants in the

program.

(2) The entities referred to in paragraph (1) are the following:

(A) Appropriate State and local agencies.

(B) Local workforce investment boards established under

section 117 of the Workforce Investment Act of 1998.

(C) Community-based organizations (as defined in section

4(5) of such Act (29 U.S.C. 1503(5)).

(D) Businesses.

(E) Organized labor.

(F) Other appropriate educational institutions.

(d) ELIGIBLE INDIVIDUALS.—A program established or conducted using funds provided under subsection (a) may provide education and training in environmental restoration and waste management to—

(1) individuals who have been terminated or laid off from

employment (or have received notice of termination or lay off)

as a consequence of reductions in expenditures by the United

States for defense, the cancellation, termination, or completion

of a defense contract, or the closure or realignment of a military installation under a base closure law, as determined in accordance with regulations prescribed by the Secretary; or

(2) individuals who have attained the age of 16 but not the

age of 25.

(e) ELEMENTS OF EDUCATION AND TRAINING PROGRAM.—In establishing or conducting an education and training program using

funds provided under subsection (a), the institution of higher education shall meet the following requirements:

(1) The institution of higher education shall establish and

provide a work-based learning system consisting of education

and training in environmental restoration—

(A) which may include basic educational courses, onsite basic skills training, and mentor assistance to individuals described in subsection (d) who are participating in

the program; and

(B) which may lead to the awarding of a certificate or

degree at the institution of higher education.

(2) The institution of higher education shall undertake outreach and recruitment efforts to encourage participation by eligible individuals in the education and training program.

(3) The institution of higher education shall select participants for the education and training program from among eli-
1097 93Act INDUSTRIAL BASE AND DEFENSE WORKFORCE

gible individuals described in paragraph (1) or (2) of subsection

(d).

(4) To the extent practicable, in the selection of young

adults described in subsection (d)(2) to participate in the education and training program, the institution of higher education shall give priority to those young adults who—

(A) have not attended and are otherwise unlikely to be

able to attend an institution of higher education; or

(B) have, or are members of families who have, received a total family income that, in relation to family size,

is not in excess of the higher of—

(i) the official poverty line (as defined by the Office of Management and Budget, and revised annually

in accordance with section 673(2) of the Omnibus

Budget Reconciliation Act of 1981 (42 U.S.C. 9902(2)));

or

(ii) 70 percent of the lower living standard income

level.

(5) To the extent practicable, the institution of higher education shall select instructors for the education and training

program from institutions of higher education, appropriate

community programs, and industry and labor.

(6) To the extent practicable, the institution of higher education shall consult with appropriate Federal, State, and local

agencies carrying out environmental restoration programs for

the purpose of achieving coordination between such programs

and the education and training program conducted by the consortium.

(f) SELECTION OF GRANT RECIPIENTS.—To the extent practicable, the Secretary shall provide grants to institutions of higher

education under subsection (a) in a manner which will equitably

distribute such grants among the various regions of the United

States.

(g) LIMITATION ON AMOUNT OF GRANT TO A SINGLE RECIPIENT.—The amount of a grant under subsection (a) that may be

made to a single institution of higher education in a fiscal year

may not exceed 1⁄3 of the amount made available to provide grants

under such subsection for that fiscal year.

(h) REPORTING REQUIREMENTS.—(1) The Secretary may provide

a grant to an institution of higher education under subsection (a)

only if the institution agrees to submit to the Secretary, in each fiscal year in which the Secretary makes payments under the grant

to the institution, a report containing—

(A) a description and evaluation of the education and

training program established by the consortium formed by the

institution under subsection (c); and

(B) such other information as the Secretary may reasonably require.

(2) Not later than 18 months after the date of the enactment

of this Act, the Secretary shall submit to the President and Congress an interim report containing—

(A) a compilation of the information contained in the reports received by the Secretary from each institution of higher

education under paragraph (1); and
93Act INDUSTRIAL BASE AND DEFENSE WORKFORCE 1098

(B) an evaluation of the effectiveness of the demonstration

grant program authorized by this section.

(3) Not later than January 1, 1997, the Secretary shall submit

to the President and Congress a final report containing—

(A) a compilation of the information described in the interim report; and

(B) a final evaluation of the effectiveness of the demonstration grant program authorized by this section, including a recommendation as to the feasibility of continuing the program.

(i) DEFINITIONS.—For purposes of this section:

(1) BASE CLOSURE LAW.—The term ‘‘base closure law’’

means the following:

(A) The Defense Base Closure and Realignment Act of

1990 (part A of title XXIX of Public Law 101–510; 10

U.S.C. 2687 note).

(B) Title II of the Defense Authorization Amendments

and Base Closure and Realignment Act (Public Law 100–

526; 10 U.S.C. 2687 note).

(C) Section 2687 of title 10, United States Code.

(D) Any other similar law enacted after the date of the

enactment of this Act.

(2) ENVIRONMENTAL RESTORATION.—The term ‘‘environmental restoration’’ means actions taken consistent with a permanent remedy to prevent or minimize the release of hazardous substances into the environment so that such substances do not migrate to cause substantial danger to present

or future public health or welfare or the environment.

(3) INSTITUTION OF HIGHER EDUCATION.—The term ‘‘institution of higher education’’ has the meaning given such term in

section 101 of the Higher Education Act of 1965.

(4) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of Defense.

(j) CONFORMING REPEAL.—[Omitted—Amendment]

SEC. 1334. ø10 U.S.C. 2701 note¿ ENVIRONMENTAL EDUCATION OPPORTUNITIES PROGRAM.

(a) AUTHORITY.—The Secretary of Defense, in consultation with

the Secretary of Energy and the Administrator of the Environmental Protection Agency, may establish a scholarship program in

order to enable eligible individuals described in subsection (d) to

undertake the educational training or activities relating to environmental engineering, environmental sciences, or environmental

project management in fields related to hazardous waste management and cleanup described in subsection (b) at the institutions of

higher education described in subsection (c).

(b) EDUCATIONAL TRAINING OR ACTIVITIES.—(1) The program

established under subsection (a) shall be limited to educational

training or activities related to—

(A) site remediation;

(B) site characterization;

(C) hazardous waste management;

(D) hazardous waste reduction;

(E) recycling;

(F) process and materials engineering;

(G) training for positions related to environmental engineering, environmental sciences, or environmental project
1099 93Act INDUSTRIAL BASE AND DEFENSE WORKFORCE

management (including training for management positions);

and

(H) environmental engineering with respect to the construction of facilities to address the items described in subparagraphs (A) through (G).

(2) The program established under subsection (a) shall be limited to educational training or activities designed to enable individuals to achieve specialization in the following fields:

(A) Earth sciences.

(B) Chemistry.

(C) Chemical Engineering.

(D) Environmental engineering.

(E) Statistics.

(F) Toxicology.

(G) Industrial hygiene.

(H) Health physics.

(I) Environmental project management.

(c) ELIGIBLE INSTITUTIONS OF HIGHER EDUCATION.—Scholarship funds awarded under this section shall be used by individuals

awarded scholarships to enable such individuals to attend institutions of higher education associated with hazardous substance research centers to enable such individuals to undertake a program

of educational training or activities described in subsection (b) that

leads to an undergraduate degree, a graduate degree, or a degree

or certificate that is supplemental to an academic degree.

(d) ELIGIBLE INDIVIDUALS.—Individuals eligible for scholarships under the program established under subsection (a) are the

following:

(1) Any member of the Armed Forces who—

(A) was on active duty or full-time National Guard

duty on September 30, 1990;

(B) during the 5-year period beginning on that date—

(i) is involuntarily separated (as defined in section

1141 of title 10, United States Code) from active duty

or full-time National Guard duty; or

(ii) is separated from active duty or full-time National Guard duty pursuant to a special separation

benefits program under section 1174a of title 10,

United States Code, or the voluntary separation incentive program under section 1175 of that title; and

(C) is not entitled to retired or retainer pay incident

to that separation.

(2) Any civilian employee of the Department of Energy or

the Department of Defense (other than an employee referred to

in paragraph (3)) who—

(A) is terminated or laid off from such employment

during the five-year period beginning on September 30,

1990, as a result of reductions in defense-related spending

(as determined by the appropriate Secretary); and

(B) is not entitled to retired or retainer pay incident

to that termination or lay off.

(3) Any civilian employee of the Department of Defense

whose employment at a military installation approved for closure or realignment under a base closure law is terminated as

a result of such closure or realignment.
93Act INDUSTRIAL BASE AND DEFENSE WORKFORCE 1100

(e) AWARD OF SCHOLARSHIP.—(1)(A) The Secretary of Defense

shall award scholarships under this section to such eligible individuals as the Secretary determines appropriate pursuant to regulations or policies promulgated by the Secretary.

(B) In awarding a scholarship under this section, the Secretary

shall—

(i) take into consideration the extent to which the qualifications and experience of the individual applying for the

scholarship prepared such individual for the educational training or activities to be undertaken; and

(ii) award a scholarship only to an eligible individual who

has been accepted for enrollment in the institution of higher

education described in subsection (c) and providing the educational training or activities for which the scholarship assistance is sought.

(2) The Secretary of Defense shall determine the amount of the

scholarships awarded under this section, except that the amount of

scholarship assistance awarded to any individual under this section

may not exceed— (A) $10,000 in any 12-month period; and

(B) a total of $20,000.

(f) APPLICATION; PERIOD FOR SUBMISSION.—(1) Each individual

desiring a scholarship under this section shall submit an application to the Secretary of Defense in such manner and containing or

accompanied by such information as the Secretary may reasonably

require.

(2) A member of the Armed Forces described in subsection

(d)(1) who desires to apply for a scholarship under this section

shall submit an application under this subsection not later than

180 days after the date of the separation of the member. In the

case of members described in subsection (d)(1) who were separated

before the date of the enactment of this Act, the Secretary shall accept applications from these members submitted during the 180-

day period beginning on the date of the enactment of this Act.

(3) A civilian employee described in paragraph (2) or (3) of subsection (d) who desires to apply for a scholarship under this section, but who receives no prior notice of such termination or lay off,

may submit an application under this subsection at any time after

such termination or lay off. A civilian employee described in paragraph (1) or (2) of subsection (d) who receives a notice of termination or lay off shall submit an application not later than 180

days before the effective date of the termination or lay off. In the

case of employees described in such paragraphs who were terminated or laid off before the date of the enactment of this Act, the

Secretary shall accept applications from these employees submitted

during the 180-day period beginning on the date of the enactment

of this Act.

(g) REPAYMENT.—(1) Any individual receiving scholarship assistance from the Secretary of Defense under this section shall

enter into an agreement with the Secretary under which the individual agrees to pay to the United States the total amount of the

scholarship assistance provided to the individual by the Secretary

under this section, plus interest at the rate prescribed in paragraph (4), if the individual does not complete the educational training or activities for which such assistance is provided.
1101 93Act INDUSTRIAL BASE AND DEFENSE WORKFORCE

(2) If an individual fails to pay to the United States the total

amount required pursuant to paragraph (1), including the interest,

at the rate prescribed in paragraph (4), the unpaid amount shall

be recoverable by the United States from the individual or such individual’s estate by—

(A) in the case of an individual who is an employee of the

United States, set off against accrued pay, compensation,

amount of retirement credit, or other amount due the employee

from the United States; and

(B) such other method as is provided by law for the recovery of amounts owing to the United States.

(3) The Secretary of Defense may waive in whole or in part a

required repayment under this subsection if the Secretary determines that the recovery would be against equity and good conscience or would be contrary to the best interests of the United

States.

(4) The total amount of scholarship assistance provided to an

individual under this section, for purposes of repayment under this

subsection, shall bear interest at the applicable rate of interest

under section 427A(c) of the Higher Education Act of 1965 (20

U.S.C. 1077a(c)).

(h) COORDINATION OF BENEFITS.—Any scholarship assistance

provided to an individual under this section shall be taken into account in determining the eligibility of the individual for Federal

student financial assistance provided under title IV of the Higher

Education Act of 1965 (20 U.S.C. 1070 et seq.).

(i) REPORT TO CONGRESS.—Not later than January 1, 1995, the

Secretary of Defense, in consultation with the Secretary of Energy

and the Administrator of the Environmental Protection Agency,

shall submit to the Congress a report describing the activities undertaken under the program authorized by subsection (a) and containing recommendations for future activities under the program.

(j) FUNDING.—(1) To carry out the scholarship program authorized by subsection (a), the Secretary of Defense may use the unobligated balance of funds made available pursuant to section 4451(k)

of the National Defense Authorization Act for Fiscal Year 1993

(Public Law 102–484; 10 U.S.C. 2701 note) for fiscal year 1993 for

environmental scholarship and fellowship programs for the Department of Defense.

(2) The cost of carrying out the program authorized by subsection (a) may not exceed $8,000,000 in any fiscal year.

(k) DEFINITIONS.—For purposes of this section:

(1) The term ‘‘base closure law’’ means the following:

(A) Title II of the Defense Authorization Amendments

and Base Closure and Realignment Act (Public Law 100–

526; 10 U.S.C. 2687 note).

(B) The Defense Base Closure and Realignment Act of

1990 (part A of title XXIX of Public Law 101–510; 10

U.S.C. 2687 note).

(2) The term ‘‘hazardous substance research centers’’

means the hazardous substance research centers described in

section 311(d) of the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (42 U.S.C. 9660(d)).

Such term includes the Great Plains and Rocky Mountain Hazardous Substance Research Center, the Northeast Hazardous
93Act INDUSTRIAL BASE AND DEFENSE WORKFORCE 1102

Substance Research Center, the Great Lakes and Mid-Atlantic

Hazardous Substance Research Center, the South and Southwest Hazardous Substance Research Center, and the Western

Region Hazardous Substance Research Center.

(3) The term ‘‘institution of higher education’’ has the

same meaning given such term in section 101 of the Higher

Education Act of 1965.

SEC. 1335. ø10 U.S.C. 2701 note¿ TRAINING AND EMPLOYMENT OF DEPARTMENT OF DEFENSE EMPLOYEES TO CARRY OUT ENVIRONMENTAL RESTORATION AT MILITARY INSTALLATIONS TO BE CLOSED.

(a) TRAINING PROGRAM.—The Secretary of Defense may establish a program to provide such training to eligible civilian employees of the Department of Defense as the Secretary considers to be

necessary to qualify such employees to carry out environmental assessment, remediation, and restoration activities (including asbestos abatement) at military installations closed or to be closed.

(b) EMPLOYMENT OF GRADUATES.—In the case of eligible civilian employees of the Department of Defense who successfully complete the training program established pursuant to subsection (a),

the Secretary may—

(1) employ such employees to carry out environmental assessment, remediation, and restoration activities at military installations referred to in subsection (a); or

(2) require, as a condition of a contract for the private performance of such activities at such an installation, the contractor to be engaged in carrying out such activities to employ

such employees.

(c) ELIGIBLE EMPLOYEES.—Eligibility for selection to participate in the training program under subsection (a) shall be limited

to those civilian employees of the Department of Defense whose

employment would be terminated by reason of the closure of a military installation if not for the selection of the employees to participate in the training program.

(d) PRIORITY IN TRAINING AND EMPLOYMENT.—The Secretary

shall give priority in providing training and employment under this

section to eligible civilian employees employed at a military installation the closure of which will directly result in the termination

of the employment of at least 1,000 civilian employees of the Department of Defense.

(e) EFFECT ON OTHER ENVIRONMENTAL REQUIREMENTS.—Nothing in this section shall be construed to revise or modify any requirement established under Federal or State law relating to environmental assessment, remediation, or restoration activities at

military installations closed or to be closed.

* * * * * * *

SEC. 1337. ø10 U.S.C. 1143 note¿ DEMONSTRATION PROGRAM FOR THE

TRAINING OF RECENTLY DISCHARGED VETERANS FOR

EMPLOYMENT IN CONSTRUCTION AND IN HAZARDOUS

WASTE REMEDIATION.

(a) ESTABLISHMENT.—The Secretary of Defense may establish

a demonstration program to promote the training and employment

of veterans in the construction and hazardous waste remediation

industries. Using funds made available to carry out this section the

Secretary shall make grants under the demonstration program to
1103 93Act INDUSTRIAL BASE AND DEFENSE WORKFORCE

organizations that meet the eligibility criteria specified in subsection (b).

(b) GRANT ELIGIBILITY CRITERIA.—An organization is eligible to

receive a grant from the Secretary under subsection (a) if it—

(1) demonstrates, to the satisfaction of the Secretary, an

ability to recruit and counsel veterans for participation in the

demonstration program under this section;

(2) has entered into an agreement with a joint labor-management training fund established consistent with section 8(f)

of the National Labor Relations Act (29 U.S.C. 158(f)) to implement and operate a training and employment program for veterans;

(3) agrees under the agreement referred to in paragraph

(2) to use grant funds to carry out a program that will provide

eligible veterans with training for employment in the construction and hazardous waste remediation industries;

(4) provides such training for an eligible veteran for not

more than 18 months;

(5) demonstrates actual experience in providing training

for veterans under an agreement referred to in paragraph (2);

(6) agrees to make, along with all subgrantees, a substantial in-kind contribution (as determined by the Secretary of Defense) from non-Federal sources to the demonstration program

under this section; and

(7) gives its assurances, to the satisfaction of the Secretary, that full time, permanent jobs will be available for individuals successfully completing the training program, with a

special emphasis on jobs with employers in construction and

hazardous waste remediation on Department of Defense facilities.

(c) ELIGIBLE VETERANS.—An individual is an eligible veteran

for the purposes of this section if the individual—

(1)(A) served in the active military, naval, or air service for

a period of at least two years;

(B) was discharged or released from active duty because of

a service-connected disability; or

(C) is entitled to compensation (or who but for the receipt

of military retired pay would be entitled to compensation)

under the laws administered by the Secretary of Veterans Affairs for a disability rated at 30 percent or more; and

(2) was discharged or released on or after August 2, 1990,

under conditions other than dishonorable.

(d) PREFERENCE.—In carrying out the demonstration program

under this section, the Secretary shall ensure that a preference is

given to eligible veterans who had a primary or secondary occupational specialty in the Armed Forces that (as determined under regulations prescribed by the Secretary and in effect before the date

of such separation) is not readily transferable to the civilian work

force.

(e) HAZARDOUS WASTE OPERATIONS TRAINING GOAL.—It is the

sense of Congress that at least 20 percent of the total number of

veterans completing training under the demonstration program

under this section should complete the training required—
93Act INDUSTRIAL BASE AND DEFENSE WORKFORCE 1104

(1) for certification under section 126 of the Superfund

Amendments and Reauthorization Act of 1986 (29 U.S.C. 655

note); and

(2) under any other Federal law which requires certification for employees engaged in hazardous waste remediation

operations.

(f) USE OF FUNDS.—Funds made available to carry out this section may only be used for tuition and stipends to cover the living

and travel expenses of participants, except that the Secretary may

provide that not more than a total of four percent of all the funds

made available under this section may be used for administrative

expenses of grantees and subgrantees.

(g) LIMITATION ON TUITION CHARGED.—The amount of tuition

charged eligible veterans participating in a training program funded under the demonstration program may not exceed the amount

of tuition charged to nonveterans participating in programs substantially similar to that training program.

(h) LIMITATION ON EXPENDITURES PER PARTICIPANT.—Of the

funds made available to carry out this section—

(1) not more than $1,000 may be expended with respect to

each veteran participating in the construction phase of the

demonstration program; and

(2) not more than an additional $1,000 may be expended

with respect to each veteran participating in the hazardous

waste remediation phase of the demonstration program, except

that the Secretary may authorize an additional $300 for the

training of a veteran participating in such phase if the Secretary determines that such additional amount is necessary because of the type of training needed for the particular kind of

hazardous waste remediation involved.

(i) REPORTS.—(1) Not later than November 1, 1994, the Secretary shall submit to Congress an interim report describing the

manner in which the demonstration program under this section is

being carried out, including a detailed description of the number of

grants made, the number of veterans involved, the kinds of training received, and any job placements that have occurred or that are

anticipated.

(2) Not later than December 31, 1995, the Secretary shall submit to Congress a final report containing a description of the results of the demonstration program with a detailed description of

the number of grants made, the number of veterans involved, the

number of veterans who completed the program, the number of veterans who were placed in jobs, the number of veterans who failed

to complete the program along with the reasons for such failure,

and any recommendations the Secretary considers to be appropriate.

(j) DEFINITIONS.—For purposes of this section, the terms ‘‘veteran’’, ‘‘service-connected’’, ‘‘active duty’’, and ‘‘active military,

naval, or air service’’ have the meanings given such terms in paragraphs (2), (16), (21), and (24), respectively, of section 101 of title

38, United States Code.

(k) TERMINATION.—Not later than October 1, 1994, the Secretary shall obligate, in accordance with the provisions of this sec-
1105 93Act INDUSTRIAL BASE AND DEFENSE WORKFORCE

tion, the funds made available to carry out the demonstration program under this section.

* * * * * * *

Subtitle E—Other Matters

* * * * * * *

SEC. 1373. ø29 U.S.C. 1662d–1 note¿ REGIONAL RETRAINING SERVICES

CLEARINGHOUSES.

(a) ESTABLISHMENT REQUIRED.—The Secretary of Labor, in

consultation with the Secretary of Defense, may carry out a demonstration project to establish one or more regional retraining services clearinghouses to serve eligible persons described in subsection

(b).

(b) PERSONS ELIGIBLE FOR CLEARINGHOUSE SERVICES.—The following persons shall be eligible to receive services through the

clearinghouses:

(1) Members of the Armed Forces who are discharged or

released from active duty.

(2) Civilian employees of the Department of Defense who

are terminated from such employment as a result of reductions

in defense spending or the closure or realignment of a military

installation, as determined by the Secretary of Defense.

(3) Employees of defense contractors who are terminated

or laid off (or receive a notice of termination or lay off) as a

result of the completion or termination of a defense contract or

program or reductions in defense spending, as determined by

the Secretary of Defense.

(c) INFORMATIONAL ACTIVITIES OF CLEARINGHOUSES.—The

clearinghouses shall—

(1) collect educational materials that have been prepared

for the purpose of providing information regarding available retraining programs, in particular those programs dealing with

critical skills needed in advanced manufacturing and skill

areas in which shortages of skilled employees exist;

(2) establish and maintain a data base for the purpose of

storing and categorizing such materials based on the different

needs of eligible persons; and

(3) furnish such materials, upon request, to educational institutions and other interested persons.

(d) FUNDING.—From the unobligated balance of funds made

available pursuant to section 4465(c) of the National Defense Authorization Act for Fiscal Year 1993 (Public Law 102–484; 29

U.S.C. 1662d–1 note) to carry out section 325A of the Job Training

Partnership Act (29 U.S.C. 1662d–1), not more than $10,000,000

shall be available to the Secretary of Labor to carry out this section

during fiscal year 1994. Funds made available under section 1302

for defense conversion, reinvestment, and transition assistance programs shall not be used to carry out this section.
92Act INDUSTRIAL BASE AND DEFENSE WORKFORCE 1106

b. Defense Conversion, Reinvestment, and Transition

Assistance Act of 1992

(Division D of the National Defense Authorization Act for Fiscal Year 1993; Public

Law 102–484, approved Oct. 23, 1992)

DIVISION D—DEFENSE CONVERSION, REINVESTMENT,

AND TRANSITION ASSISTANCE

SEC. 4001. ø10 U.S.C. 2491 note¿ SHORT TITLE.

This division may be cited as the ‘‘Defense Conversion, Reinvestment, and Transition Assistance Act of 1992’’.

* * * * * * *

TITLE XLIV—PERSONNEL ADJUSTMENT, EDUCATION,

AND TRAINING PROGRAMS

* * * * * * *

Subtitle E—Environmental Education and Retraining

Provisions

SEC. 4451. ø10 U.S.C. 2701 note¿ ENVIRONMENTAL SCHOLARSHIP AND

FELLOWSHIP PROGRAMS FOR THE DEPARTMENT OF DEFENSE.

(a) ESTABLISHMENT.—The Secretary of Defense (hereinafter in

this section referred to as the ‘‘Secretary’’) may conduct scholarship

and fellowship programs for the purpose of enabling individuals to

qualify for employment in the field of environmental restoration or

other environmental programs in the Department of Defense.

(b) ELIGIBILITY.—To be eligible to participate in the scholarship

or fellowship program, an individual must—

(1) be accepted for enrollment or be currently enrolled as

a full-time student at an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965);

(2) be pursuing a program of education that leads to an appropriate higher education degree in engineering, biology,

chemistry, or another qualifying field related to environmental

activities, as determined by the Secretary;

(3) sign an agreement described in subsection (c);

(4) be a citizen or national of the United States or be an

alien lawfully admitted to the United States for permanent

residence; and

(5) meet any other requirements prescribed by the Secretary.

(c) AGREEMENT.—An agreement between the Secretary and an

individual participating in a scholarship or fellowship established

in subsection (a) shall be in writing, shall be signed by the individual, and shall include the following provisions:

(1) The agreement of the Secretary to provide the individual with educational assistance for a specified number of

school years (not to exceed 5 years) during which the individual is pursuing a course of education in a qualifying field.

The assistance may include payment of tuition, fees, books,

laboratory expenses, and (in the case of a fellowship) a stipend.

(2) The agreement of the individual to perform the

following:
1107 92Act INDUSTRIAL BASE AND DEFENSE WORKFORCE

(A) Accept such educational assistance.

(B) Maintain enrollment and attendance in the educational program until completed.

(C) Maintain, while enrolled in the educational program, satisfactory academic progress as prescribed by the

institution of higher education in which the individual is

enrolled.

(D) Serve, upon completion of the educational program

and selection by the Secretary under subsection (e), as a

full-time employee in an environmental restoration or

other environmental position in the Department of Defense

for the applicable period of service specified in subsection

(d).

(d) PERIOD OF SERVICE.—The period of service required under

subsection (c)(2)(D) is as follows:

(1) For an individual who completes a bachelor’s degree

under a scholarship program established under subsection (a),

a period of 12 months for each school year or part thereof for

which the individual is provided a scholarship under the program.

(2) For an individual who completes a master’s degree or

other post-graduate degree under a fellowship program established under subsection (a), a period of 24 months for each

school year or part thereof for which the individual is provided

a fellowship under the program.

(e) SELECTION FOR SERVICE.—The Secretary shall annually review the number and performance under the agreement of individuals who complete educational programs during the preceding year

under any scholarship and fellowship programs conducted pursuant to subsection (a). From among such individuals, the Secretary

shall select individuals for environmental positions in the Department of Defense, based on the type and availability of such positions.

(f) REPAYMENT.—(1) Any individual participating in a scholarship or fellowship program under this section shall agree to pay to

the United States the total amount of educational assistance provided to the individual under the program, plus interest at the rate

prescribed in paragraph (4), if—

(A) the individual does not complete the educational program as agreed to pursuant to subsection (c)(2)(B), or is selected by the Secretary under subsection (e) but declines to

serve, or fails to complete the service, in a position in the Department of Defense as agreed to pursuant to subsection

(c)(2)(D); or

(B) the individual is involuntarily separated for cause from

the Department of Defense before the end of the period for

which the individual has agreed to continue in the service of

the Department of Defense.

(2) If an individual fails to fulfill the agreement of the individual to pay to the United States the total amount of educational

assistance provided under a program established under subsection

(a), plus interest at the rate prescribed in paragraph (4), a sum

equal to the amount of the educational assistance (plus such interest, if applicable) shall be recoverable by the United States from

the individual or his estate by—
92Act INDUSTRIAL BASE AND DEFENSE WORKFORCE 1108

(A) in the case of an individual who is an employee of the

Department of Defense or other Federal agency, set off against

accrued pay, compensation, amount of retirement credit, or

other amount due the employee from the United States; and

(B) such other method provided by law for the recovery of

amounts owing to the United States.

(3) The Secretary may waive in whole or in part a required repayment under this subsection if the Secretary determines the recovery would be against equity and good conscience or would be

contrary to the best interests of the United States.

(4) The total amount of educational assistance provided to an

individual under a program established under subsection (a) shall,

for purposes of repayment under this section, bear interest at the

applicable rate of interest under section 427A(c) of the Higher Education Act of 1965 (20 U.S.C. 1077a(c)).

(g) PREFERENCE.—In evaluating applicants for the award of a

scholarship or fellowship under a program established under subsection (a), the Secretary shall give a preference to—

(1) individuals who are, or have been, employed by the Department of Defense or its contractors and subcontractors who

have been engaged in defense-related activities; and

(2) individuals who are or have been members of the

Armed Forces.

(h) COORDINATION OF BENEFITS.—A scholarship or fellowship

awarded under this section shall be taken into account in determining the eligibility of the individual for Federal student financial

assistance provided under title IV of the Higher Education Act of

1965 (20 U.S.C. 1070 et seq.).

(i) AWARD OF SCHOLARSHIPS AND FELLOWSHIPS.—The Secretary

may award to qualified applicants not more than 100 scholarships

(for undergraduate students) and not more than 30 fellowships (for

graduate students) in fiscal year 1993.

(j) REPORT TO CONGRESS.—Not later than January 1, 1994, the

Secretary shall submit to the Congress a report on activities undertaken under the programs established under subsection (a) and recommendations for future activities under the programs.

(k) FUNDING FOR FISCAL YEAR 1993.—Of the amount authorized to be appropriated in section 301(5)—

(1) $7,000,000 shall be available to carry out the scholarship and fellowship programs established in subsection (a); and

(2) $3,000,000 shall be available to provide training to Department of Defense personnel to obtain the skills required to

comply with existing environmental statutory and regulatory

requirements.

* * * * * * *

Subtitle F—Job Training and Employment and Educational

Opportunities

SEC. 4461. ø10 U.S.C. 1143 note¿ IMPROVED COORDINATION OF JOB

TRAINING AND PLACEMENT PROGRAMS FOR MEMBERS

OF THE ARMED FORCES.

The Secretary of Defense shall consult with the Secretary of

Labor, the Secretary of Education, the Secretary of Veterans Affairs, and the Economic Adjustment Committee to improve the co-
1109 92Act INDUSTRIAL BASE AND DEFENSE WORKFORCE

ordination of, and eliminate duplication between, the following job

training and placement programs available to members of the

Armed Forces who are discharged or released from active duty:

(1) Title I of the Workforce Investment Act of 1998.

(2) Sections 1143 and 1144 of title 10, United States Code.

(3) Chapter 41 of title 38, United States Code.

(4) The Act of August 16, 1937 (Chapter 663; 50 Stat 664;

29 U.S.C. 50 et seq.), commonly known as the National Apprenticeship Act.

(5) The Wagner-Peyser Act (29 U.S.C. 49 et seq.).

* * * * * * *

SEC. 4463. ø10 U.S.C. 1143a note¿ PROGRAM OF EDUCATIONAL LEAVE

RELATING TO CONTINUING PUBLIC AND COMMUNITY

SERVICE.

(a) PROGRAM.—Under regulations prescribed by the Secretary

of Defense and subject to subsections (b) and (c), the Secretary concerned may grant to an eligible member of the Armed Forces a

leave of absence for a period not to exceed one year for the purpose

of permitting the member to pursue a program of education or

training (including an internship) for the development of skills that

are relevant to the performance of public and community service.

A program of education or training referred to in the preceding

sentence includes any such program that is offered by the Department of Defense or by any civilian educational or training institution.

(b) ELIGIBILITY REQUIREMENT.—(1) A member may not be

granted a leave of absence under this section unless the member

agrees in writing—

(A) diligently to pursue employment in public service and

community service organizations upon the separation of the

member from active duty in the Armed Forces; and

(B) to serve in the Ready Reserve of an armed force, upon

such separation, for a period of 4 months for each month of the

period of the leave of absence.

(2)(A) A member may not be granted a leave of absence under

this section until the member has completed any period of extension of enlistment or reenlistment, or any period of obligated active

duty service, that the member has incurred under section 708 of

title 10, United States Code.

(B) The Secretary concerned may waive the limitation in subparagraph (A) for a member who enters into an agreement with the

Secretary for the member to serve in the Ready Reserve of a reserve component for a period equal to the uncompleted portion of

the member’s period of service referred to in that subparagraph.

Any such period of agreed service in the Ready Reserve shall be in

addition to any other period that the member is obligated to serve

in a reserve component.

(c) TREATMENT OF LEAVE OF ABSENCE.—A leave of absence

under this section shall be subject to the provisions of subsections

(c) and (d) of section 708 of title 10, United States Code.

(d) EXCLUSION FROM END STRENGTH LIMITATION.—A member

of the Armed Forces, while on leave granted pursuant to this section, may not be counted for purposes of any provision of law that

limits the active duty strength of the member’s armed force.
92Act INDUSTRIAL BASE AND DEFENSE WORKFORCE 1110

(e) DEFINITIONS.—In this section:

(1) The term ‘‘Secretary concerned’’ has the meaning given

such term in section 101 of title 10, United States Code.

(2) The term ‘‘eligible member of the Armed Forces’’ means

a member of the Armed Forces who is eligible for an educational leave of absence under section 708(e) of such title.

(3) The term ‘‘public service and community service organization’’ has the meaning given such term in section 1143a of

such title (as added by section 531(a)).

(f) EXPIRATION.—The authority to grant a leave of absence

under subsection (a) shall expire on December 31, 2001.

SEC. 4464. ø10 U.S.C. 1143a note¿ INCREASED EARLY RETIREMENT RETIRED PAY FOR PUBLIC OR COMMUNITY SERVICE.

(a) RECOMPUTATION OF RETIRED PAY.—(1) If a member or

former member of the Armed Forces retired under section 4403(a)

or any other provision of law authorizing retirement from the

Armed Forces (other than for disability) before the completion of at

least 20 years of active duty service (as computed under the applicable provision of law) is employed by a public service or community service organization listed on the registry maintained under

section 1143a(c) of title 10, United States Code (as added by section

4462(a)), within the period of the member’s enhanced retirement

qualification period, the member’s or former member’s retired or retainer pay shall be recomputed effective on the first day of the first

month beginning after the date on which the member or former

member attains 62 years of age.

(2) For purposes of recomputing a member’s or former member’s retired pay—

(A) the years of the member’s or former member’s employment by a public service or community service organization referred to in paragraph (1) during the member’s or former member’s enhanced retirement qualification period shall be treated

as years of active duty service in the Armed Forces; and

(B) in applying section 1401a of title 10, United States

Code, the member’s or former member’s years of active duty

service shall be deemed as of the date of retirement to have included the years of employment referred to in subparagraph

(A).

(3) Section 1405(b) of title 10, United States Code, shall apply

in determining years of service under this subsection.

(4) In this subsection, the term ‘‘enhanced retirement qualification period’’, with respect to a member or former member retired

under a provision of law referred to in paragraph (1), means the

period beginning on the date of the retirement of the member or

former member and ending the number of years (including any

fraction of a year) after that date which when added to the number

of years (including any fraction of a year) of service credited for

purposes of computing the retired pay of the member or former

member upon retirement equals 20 years.

(b) SBP ANNUITIES.—(1) Effective on the first day of the first

month after a member or former member of the Armed Forces retired under a provision of law referred to in subsection (a)(1) attains 62 years of age or, in the event of death before attaining that

age, would have attained that age, the base amount applicable

under section 1447(2) of title 10, United States Code, to any Sur-
1111 92Act INDUSTRIAL BASE AND DEFENSE WORKFORCE

vivor Benefit Plan annuity provided by that member or former

member shall be recomputed. For the recomputation the total years

(including any fraction of a year) of the member’s or former member’s active service shall be treated as having included the member’s or former member’s years (including any fraction of a year)

of employment referred to in subsection (a)(1) as of the date when

the member or former member became eligible for retired pay

under this section.

(2) In this subsection, the term ‘‘Survivor Benefit Plan’’ means

the plan established under subchapter II of chapter 73 of title 10,

United States Code.

* * * * * * *

SEC. 4466. ø10 U.S.C. 1143 note¿ PARTICIPATION OF DISCHARGED MILITARY PERSONNEL IN UPWARD BOUND PROJECTS TO PREPARE FOR COLLEGE.

(a) PROGRAM.—The Secretary of Defense may carry out a program to assist a member of the Armed Forces described in subsection (b) who is accepted to participate in an upward bound

project assisted under section 402C of the Higher Education Act of

1965 (20 U.S.C. 1070a–13) to cover the cost of providing services

through the project to the member to assist the member to prepare

for and pursue a program of higher education upon separation from

active duty. Assistance provided under the program may include a

stipend provided under subsection (d) of such section.

(b) ELIGIBLE MEMBERS.—A member of the Armed Forces shall

be eligible for assistance under subsection (a) if the member—

(1) was on active duty or full-time National Guard duty on

September 30, 1990;

(2) during the five-year period beginning on that date, was

or is discharged or released from such duty (under other than

adverse circumstances); and

(3) submits an application to the Secretary of Defense

within such time, in such form, and containing such information as the Secretary of Defense may require.

(c) NOTIFICATION OF MEMBERS PREVIOUSLY SEPARATED.—To

the extent feasible, the Secretary of Defense shall notify members

of the Armed Forces who, between September 30, 1990, and the

date of the enactment of this Act, were discharged or released from

active duty or full-time National Guard duty regarding the availability of the program under subsection (a). The Secretary may establish a time limit within which such members may apply to participate in the program.

(d) PROVISION OF ASSISTANCE.—

(1) DETERMINATION OF AMOUNT.—The amount of assistance provided under subsection (a) to a member of the Armed

Forces shall be equal to the anticipated cost of providing services to the member through an upward bound project, subject

to the limitation that such amount may not exceed the monthly

basic pay to which the member is entitled at the time of the

separation of the member. The Secretary of Defense may provide assistance in excess of that limitation if the Secretary determines, on a case by case basis, that such assistance is warranted by the special training needs of the member.
92Act INDUSTRIAL BASE AND DEFENSE WORKFORCE 1112

(2) CONSULTATION.—The Secretary of Education may assist the Secretary of Defense in determining the amount to be

provided under paragraph (1).

(e) USE OF ASSISTANCE.—A member of the Armed Forces who

is selected to participate in the program may receive services

through any upward bound project assisted under section 402C of

the Higher Education Act of 1965 (20 U.S.C. 1070a–13) to the same

extent as other individuals eligible to receive such services. A member may not participate after the end of the two-year period beginning on the date on which the member is discharged or released

from active duty, except that, in the case of a member described

in subsection (b) who was discharged or released from active duty

before the date of the enactment of this Act, the period for participation in the program shall be two years from the date of the enactment of this Act.

(f) REIMBURSEMENT.—Upon submission to the Secretary of Defense of a request for reimbursement of the costs to provide services to a participant, the Secretary shall reimburse the upward

bound project submitting the request for the actual cost of providing services (including a stipend) to the member, not to exceed

the amount provided under subsection (d)(1). Funds provided under

this subsection shall be in addition to the funds otherwise provided

to the project under the Higher Education Act of 1965 (20 U.S.C.

1001 et seq.). Not more than 10 percent of the funds provided

under this subsection may be used for administrative costs.

(g) FUNDING FOR FISCAL YEAR 1993.—Of the amount authorized to be appropriated in section 301 for Defense Agencies,

$5,000,000 shall be available to provide assistance under this section.

(h) APPLICATION TO COAST GUARD.—The Secretary of Homeland Security may implement the provisions of this section for the

Coast Guard in the same manner and to the same extent as such

section applies to the Department of Defense.

* * * * * * *

SEC. 4471. ø10 U.S.C. 2501 note¿ NOTICE TO CONTRACTORS AND EMPLOYEES UPON PROPOSED AND ACTUAL TERMINATION

OR SUBSTANTIAL REDUCTION IN MAJOR DEFENSE PROGRAMS.

(a) NOTICE REQUIREMENT AFTER ENACTMENT OF APPROPRIA- TIONS ACT.—Each year, not later than 60 days after the date of the

enactment of an Act appropriating funds for the military functions

of the Department of Defense, the Secretary of Defense, in accordance with regulations prescribed by the Secretary—

(1) shall identify each contract (if any) under major defense programs of the Department of Defense that will be terminated or substantially reduced as a result of the funding levels provided in that Act; and

(2) shall ensure that notice of the termination of, or substantial reduction in, the funding of the contract is provided—

(A) directly to the prime contractor under the contract;

and

(B) directly to the Secretary of Labor.

(b) NOTICE TO SUBCONTRACTORS.—Not later than 60 days after

the date on which the prime contractor for a contract under a
1113 92Act INDUSTRIAL BASE AND DEFENSE WORKFORCE

major defense program receives notice under subsection (a), the

prime contractor shall—

(1) provide notice of that termination or substantial reduction to each person that is a first-tier subcontractor under that

prime contract for subcontracts in an amount not less than

$500,000; and

(2) require that each such subcontractor—

(A) provide such notice to each of its subcontractors for

subcontracts in an amount in excess of $100,000; and

(B) impose a similar notice and pass through requirement to subcontractors in an amount in excess of $100,000

at all tiers.

(c) CONTRACTOR NOTICE TO EMPLOYEES AND STATE DISLOCATED

WORKER UNIT.—Not later than two weeks after a defense contractor receives notice under subsection (a), the contractor shall

provide notice of such termination or substantial reduction to—

(1)(A) each representative of employees whose work is directly related to the defense contract under such program and

who are employed by the defense contractor; or

(B) if there is no such representative at that time, each

such employee; and

(2) the State or entity designated by the State to carry out

rapid response activities under section 134(a)(2)(A) of the

Workforce Investment Act of 1998, and the chief elected official

of the unit of general local government within which the adverse effect may occur.

(d) CONSTRUCTIVE NOTICE.—The notice of termination of, or

substantial reduction in, a defense contract provided under subsection (c)(1) to an employee of a contractor shall have the same

effect as a notice of termination to such employee for the purposes

of determining whether such employee is eligible to participate in

employment and training activities carried out under title I of the

Workforce Investment Act of 1998, except in a case in which the

employer has specified that the termination of, or substantial reduction in, the contract is not likely to result in plant closure or

mass layoff.

(e) LOSS OF ELIGIBILITY.—An employee who receives a notice of

withdrawal or cancellation of the termination of, or substantial reduction in, contract funding shall not be eligible, on the basis of

any related reduction in funding under the contract, for training,

adjustment assistance, and employment services under section 325

or 325A of the Job Training Partnership Act or to participate in

employment and training activities under title I of the Workforce

Investment Act of 1998, beginning on the date on which the employee receives the notice.

(f) DEFINITIONS.—For purposes of this section:

(1) The term ‘‘major defense program’’ means a program

that is carried out to produce or acquire a major system (as defined in section 2302(5) of title 10, United States Code).

(2) The terms ‘‘substantial reduction’’ and ‘‘substantially

reduced’’, with respect to a defense contract under a major de-
90Act INDUSTRIAL BASE AND DEFENSE WORKFORCE 1114

fense program, mean a reduction of 25 percent or more in the

total dollar value of the funds obligated by the contract.

* * * * * * *

c. Defense Economic Adjustment, Diversification,

Conversion, and Stabilization Act of 1990

(Division D of the National Defense Authorization Act for Fiscal Year 1991; Public

Law 101–510, approved Nov. 5, 1990)

DIVISION D—ECONOMIC ADJUSTMENT,

DIVERSIFICATION, CONVERSION, AND STABILIZATION

SEC. 4001. ø10 U.S.C. 2391 note¿ SHORT TITLE

This division may be cited as the ‘‘Defense Economic Adjustment,

Diversification, Conversion, and Stabilization Act of 1990’’.

SEC. 4002. ø10 U.S.C. 2391 note¿ FINDINGS AND POLICY

(a) FINDINGS.—Congress makes the following findings:

(1) There are likely to be significant reductions in the programs, projects, and activities of the Department of Defense

during the first several fiscal years following fiscal year 1990.

(2) Such reductions will adversely affect the economies of

many communities in the United States and small businesses

and civilian workers throughout the United States.

(b) POLICY.—In view of the findings expressed in subsection (a),

it is the policy of the United States that—

(1) assistance be provided under existing planning assistance

programs and economic adjustment assistance programs of the

Federal Government to substantially and seriously affected

communities, businesses, and workers to the extent necessary

to facilitate an orderly transition for such communities, small

businesses, and workers from economic reliance on Department

of Defense spending to economic reliance on other sources of

business, employment, and revenue; and

(2) funding for such programs be increased by amounts necessary to meet the needs of such communities, small businesses, and workers without reducing the funding that would

otherwise be available under those programs by reason of

causes unrelated to the reductions referred to in subsection

(a)(1).

SEC. 4003. ø10 U.S.C. 2391 note¿ DEFINITIONS

For purposes of this division:

(1) The term ‘‘major defense contract or subcontract’’

means—

(A) any defense contract in an amount not less than

$5,000,000 (without regard to the date on which the contract was awarded); and

(B) any subcontract which—

(i) is entered into in connection with a contract

(without regard to the effective date of the subcontract); and

(ii) involves not less than $500,000.
1115 90Act INDUSTRIAL BASE AND DEFENSE WORKFORCE

(2) The term ‘‘Economic Adjustment Committee’’ or ‘‘Committee’’ means the Economic Adjustment Committee established in Executive Order 12049 (10 U.S.C. 111 note).

(3) The term ‘‘defense facility’’ means any private or government facility producing goods or services pursuant to a defense

contract.

(4) The term ‘‘military installation’’ means a base, camp,

post, station, yard, center, or homeport facility for any ship in

the United States, or any other facility under the jurisdiction

of a military department located in the United States.

(5) The term ‘‘substantially and seriously affected’’ means—

(A) when such term is used in conjunction with the term

‘‘community’’, a community—

(i) which has within its administrative and political

jurisdiction one or more military installations or defense facilities or which is economically affected by

proximity to a military installation or defense facility;

(ii) in which the actual or threatened curtailment,

completion, elimination, or realignment of a defense

contract results in a workforce reduction of—

(I) 2,500 or more employee positions, in the case

of a Metropolitan Statistical Area or similar area

(as defined by the Director of the Office of Management and Budget);

(II) 1,000 or more employee positions, in the

case of a labor market area outside of a Metropolitan Statistical Area; or

(III) one percent of the total number of civilian

jobs in that area; and

(iii) which establishes, by evidence, that any workforce reduction referred to in clause (ii) occurred as a

direct result of changes in Department of Defense requirements or programs;

(B) when such term is used in conjunction with the term

‘‘businesses’’ any business which—

(i) holds a major defense contract or subcontract (or

held such contract or subcontract before a reduction in

the defense budget);

(ii) experiences a reduction, or the threat of a reduction, of—

(I) 25 percent or more in sales or production; or

(II) 80 percent or more of the workforce of such

business in any division of such business or at any

plant or other facility of such business; and

(iii) establishes, by evidence, that the reductions referred to in clause (ii) occurred as a direct result of a

reduction in the defense budget; and

(C) when such term is used in conjunction with the term

‘‘group of workers’’, any group of 100 or more workers at

a defense facility who are (or who are threatened to be),

eligible to participate in the defense conversion adjustment

program under section 325 of the Job Training Partnership

Act (as added by section 4202 of this division), as in effect

on the day before the date of enactment of the Workforce

Investment Act of 1998.
90Act INDUSTRIAL BASE AND DEFENSE WORKFORCE 1116

SEC. 4004. ø10 U.S.C. 2391 note¿ CONTINUATION OF ECONOMIC ADJUSTMENT COMMITTEE

(a) TERMINATION OR ALTERATION PROHIBITED.—The Economic

Adjustment Committee established in Executive Order 12049 (10

U.S.C. 111 note) may not be terminated and the duties of the Committee may not be significantly altered unless specifically authorized by a law.

(b) CHAIRMAN.—The Secretary of Defense shall be the chairman of the Committee.

(c) EXECUTIVE COUNCIL.—Until October 1, 1997, the National

Defense Technology and Industrial Base Council shall function as

an Executive Council of the Committee. Under the direction of the

chairman of the Committee, the Executive Council shall develop

policies and procedures to ensure that communities, businesses,

and workers substantially and seriously affected by reductions in

defense expenditures are advised of the assistance available to such

communities, businesses, and workers under programs administered by the departments and agency comprising the Council.

(d) DUTIES OF COMMITTEE.—The Economic Adjustment Committee shall—

(1) coordinate and facilitate cooperative efforts among Federal agencies represented on the Committee to implement defense economic adjustment programs;

(2) serve as an information clearinghouse for and between

Federal, State, and local entities regarding their defense economic adjustment efforts; and

(3) submit to the President and Congress, not later than December 1, 1991, and each December 1 thereafter, a report

that—

(A) describes Federal economic adjustment programs

available to communities, businesses, and groups of

workers;

(B) describes the implementation of defense economic adjustment assistance during the preceding fiscal year; and

(C) specifies the number of communities, businesses, and

workers affected by defense budget reductions during the

preceding fiscal year and such number assisted by Federal

economic adjustment programs during that fiscal year.

TITLE XLI—ECONOMIC ADJUSTMENT PLANNING

SEC. 4101. NOTIFICATION

[Repealed by section 825 of the National Defense Authorization

Act for Fiscal Year 1997 (Public Law 104–201)]

SEC. 4102. ø10 U.S.C. 2391 note¿ ECONOMIC ADJUSTMENT PLANNING ASSISTANCE THROUGH THE DEPARTMENT OF DEFENSE

(a) IN GENERAL.—Any substantially and seriously affected community shall be eligible for economic adjustment planning assistance through the Office of Economic Adjustment in the Department

of Defense under subsection (b) of section 2391 of title 10, United

States Code, subject to subsection (e) of such section. Such assistance shall be provided in accordance with the standards, procedures, and priorities established by the Committee under this division.

(b) [Omitted—Amendment]
1117 90Act INDUSTRIAL BASE AND DEFENSE WORKFORCE

SEC. 4103. ø10 U.S.C. 2391 note¿ COMMUNITY ECONOMIC ADJUSTMENT

ASSISTANCE THROUGH THE ECONOMIC DEVELOPMENT

ADMINISTRATION

(a) IN GENERAL.—A community that has been determined by the

Economic Development Administration of the Department of Commerce or the Office of Economic Adjustment of the Department of

Defense, in accordance with the standards and procedures established by the Economic Adjustment Committee, to be a substantially and seriously affected community shall be eligible for economic adjustment assistance authorized under title IX of the Public

Works and Economic Development Act of 1965, subject to the availability of appropriations for such purpose and subject to meeting

the eligibility requirements of such title.

(b) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to

be appropriated to the Secretary of Defense for fiscal year 1991

$50,000,000 for purposes of carrying out subsection (a). Any

amount appropriated pursuant to this subsection shall remain

available until expended.

TITLE XLII—ADJUSTMENT ASSISTANCE FOR

EMPLOYEES

* * * * * * *

TITLE XLIII—EXPANSION OF BUSINESS CAPITAL

ASSISTANCE PROGRAMS

SEC. 4301. ø10 U.S.C. 2391 note¿ EXPANSION OF SMALL BUSINESS LOAN

PROGRAM

Not later than 180 days after the date of the enactment of this

Act, the President, acting with the assistance of the Committee and

after consulting experts in government and the private sector, shall

transmit to the Congress recommendations regarding ways that assistance provided pursuant to the business loan program under section 7(a) of the Small Business Act of 1958 may be used to respond

to the consequences of defense budget reductions.

SEC. 4302. ø10 U.S.C. 2391 note¿ ECONOMIC PLANNING ASSISTANCE FOR

EXCEPTIONAL PROJECTS

(a) ASSISTANCE AUTHORIZED.—The Economic Development Administration, in the case of assistance under title IX of the Public

Works and Economic Development Act of 1965, and the Office of

Economic Adjustment, in the case of planning assistance under section 2391(b) of title 10, United States Code, may award planning

assistance under those programs to any substantially and seriously

affected community, on behalf of a business, group of businesses,

or group of workers, if such planning funds are determined by the

agency concerned to be necessary and appropriate as a catalyst for

projects which the agency determines, on a case-by-case basis, have

exceptional promise for achieving the objectives of this division.

(b) CONDITIONS ON ASSISTANCE.—Awards under this section shall

be subject to the availability of appropriations for such purpose and

shall be made in accordance with any other applicable provisions

of law.
90Act INDUSTRIAL BASE AND DEFENSE WORKFORCE 1118

SEC. 4303. ø10 U.S.C. 2391 note¿ EXPANSION OF EXPORT FINANCING

FOR GOODS AND SERVICES PRODUCED BY FIRMS AND

EMPLOYEES FORMERLY ENGAGED IN DEFENSE

PRODUCTION

(a) EXPORT-IMPORT BANK.—

(1) SENSE OF CONGRESS ON PLAN FOR EXPANSION.—It is the

sense of Congress that the United States businesses undergoing transition from defense production to nondefense production will need assistance in seizing export markets overseas.

Therefore, in order to provide financial support for such businesses, as well as meeting other normal demands on its resources, the annual direct lending authority of the Export-Import Bank of the United States should be increased by at least

150 percent from the fiscal year 1990 level over the five-year

period beginning October 1, 1990.

(2) REPORT OF FEASIBILITY.—Before September 30, 1990, the

President, acting with the assistance of the Committee and

after consulting the Board of Directors of the Export-Import

Bank of the United States and other experts in government

and the private sector, shall transmit to the Congress a report

assessing the feasibility and desirability of a program for increasing the amount of direct loan authority in the manner described in paragraph (1) and the factors considered in making

such assessment.

(3) TRANSITION TO NONDEFENSE PRODUCTION REQUIRED TO BE

CONSIDERED.—In determining whether to provide financial

support for an export transaction, the Export-Import Bank of

the United States shall take into account, to the extent feasible

and in accordance with applicable standards and procedures

established by the bank in consultation with the Committee,

the fact that the product or service is produced or provided by

any business or group of workers which—

(A) was substantially and seriously affected by defense

budget reductions; and

(B) is in transition from defense to nondefense production.

(b) SBA USE OF AUTHORITY FOR EXPORT FINANCING ASSISTANCE.—In determining whether to provide financial or other assistance under the Small Business Act, title VIII of the Omnibus

Trade and Competitiveness Act of 1988, or any program referred

to in section 4301 to any small business involved in, or attempting

to become involved in, the export of any product or service, the Administrator of the Small Business Administration shall take into

account the fact that such product or service is produced or provided by any business or group of workers which—

(1) has been substantially and seriously affected by defense

budget reductions; and

(2) is in transition from defense to nondefense production.

(c) COORDINATION AND INTEGRATION OF ACTIVITIES AND ASSISTANCE WITH OTHER AGENCIES.—In providing additional financial assistance pursuant to any increase in loan authority under this

division—

(1) Federal agencies concerned with international trade shall

participate in the process of coordination conducted by the

Committee pursuant to section 4004(c)(1); and
1119 90Act INDUSTRIAL BASE AND DEFENSE WORKFORCE

(2) such Federal agencies shall attempt, to the maximum extent practicable, to coordinate and integrate the activities and

assistance of the agencies in support of exports, including financial assistance in the form of direct loans, loan guarantees,

and insurance, general trade promotion, marketing assistance,

and marketing and commercial information, in a manner consistent with the purposes of this division (and the amendments

made by this division to other provisions of law).

(d) REPORTING.—The annual reports made by the Export-Import

Bank of the United States and the Administrator of the Small

Business Administration and the annual economic stabilization and

adjustment report under section 4004(c)(3) of this division shall include a description of the extent to which the bank and the Administrator are—

(1) providing financing described in subsections (a)(2) and

(b), respectively, to businesses or groups of workers which were

substantially and seriously affected by defense budget reductions; and

(2) coordinating and integrating export support and financing activities with other Federal agencies.

SEC. 4304. ø10 U.S.C. 2391 note¿ BENEFIT INFORMATION FOR BUSINESSES

(a) INFORMATION REQUIRED TO BE PROVIDED.—The Secretary of

Commerce and the Administrator of the Small Business Administration shall provide any business affected by defense budget reductions with a complete description of available programs which

provide any business, whether on an industrywide or an individual

basis, with any planning assistance, financial, technical, or managerial assistance, worker retraining assistance, or other assistance

authorized under this division.

(b) EFFECTIVE NOTIFICATION SYSTEM.—The Secretary of Commerce and the Administrator of the Small Business Administration

shall take such action as may be appropriate to ensure, to the maximum extent practicable, that each business affected by defense

budget reductions receives the information required to be provided

under subsection (a) on a timely basis.
1120

2. DEFENSE EXPERIMENTAL PROGRAM TO STIMULATE

COMPETITIVE RESEARCH

Section 257 of the National Defense Authorization Act for

Fiscal Year 1995

(Public Law 103–337; approved Oct. 5, 1994)

SEC. 257. ø10 U.S.C. 2358 note¿ DEFENSE EXPERIMENTAL PROGRAM TO

STIMULATE COMPETITIVE RESEARCH.

(a) PROGRAM REQUIRED.—The Secretary of Defense, acting

through the Director of Defense Research and Engineering, shall

carry out a Defense Experimental Program to Stimulate Competitive Research (DEPSCoR) as part of the university research programs of the Department of Defense.

(b) PROGRAM OBJECTIVES.—The objectives of the program are

as follows:

(1) To enhance the capabilities of institutions of higher

education in eligible States to develop, plan, and execute

science and engineering research that is competitive under the

peer-review systems used for awarding Federal research assistance.

(2) To increase the probability of long-term growth in the

competitively awarded financial assistance that institutions of

higher education in eligible States receive from the Federal

Government for science and engineering research.

(c) PROGRAM ACTIVITIES.—In order to achieve the program objectives, the following activities are authorized under the program:

(1) Competitive award of grants for research and instrumentation to support such research.

(2) Competitive award of financial assistance for graduate

students.

(3) Any other activities that are determined necessary to

further the achievement of the objectives of the program.

(d) ELIGIBLE STATES.—(1) The Under Secretary of Defense for

Acquisition and Technology shall designate which States are eligible States for the purposes of this section.

(2) The Under Secretary of Defense for Acquisition and Technology shall designate a State as an eligible State if, as determined

by the Under Secretary—

(A) the average annual amount of all Department of Defense obligations for science and engineering research and development that were in effect with institutions of higher education in the State for the three fiscal years preceding the fiscal year for which the designation is effective or for the last

three fiscal years for which statistics are available is less than

the amount determined by multiplying 60 percent times the
1121 Sec. 257 PROGRAM TO STIMULATE COMPETITIVE RESEARCH

amount equal to 1⁄50 of the total average annual amount of all

Department of Defense obligations for science and engineering

research and development that were in effect with institutions

of higher education in the United States for such three preceding or last fiscal years, as the case may be; and

(B) the State has demonstrated a commitment to developing research bases in the State and to improving science and

engineering research and education programs at institutions of

higher education in the State.

(e) COORDINATION WITH SIMILAR FEDERAL PROGRAMS.—(1) The

Secretary shall consult with the Director of the National Science

Foundation and the Director of the Office of Science and Technology Policy in the planning, development, and execution of the

program and shall coordinate the program with the Experimental

Program to Stimulate Competitive Research conducted by the National Science Foundation and with similar programs sponsored by

other departments and agencies of the Federal Government.

(2) All solicitations under the Defense Experimental Program

to Stimulate Competitive Research shall be made to, and all

awards shall be made through, the State committees established

for purposes of the Experimental Program to Stimulate Competitive Research conducted by the National Science Foundation.

(3) A State committee referred to in paragraph (2) shall ensure

that activities carried out in the State of that committee under the

Defense Experimental Program to Stimulate Competitive Research

are coordinated with the activities carried out in the State under

other similar initiatives of the Federal Government to stimulate

competitive research.

(f) STATE DEFINED.—In this section, the term ‘‘State’’ means a

State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa,

and the Commonwealth of the Northern Mariana Islands.
1122

3. POLICY REGARDING PERFORMANCE OF DEPOTLEVEL MAINTENANCE AND REPAIR FOR THE DEPARTMENT OF DEFENSE

Section 311 of the National Defense Authorization Act for

Fiscal Year 1996

(Public Law 104–106; approved Feb, 10, 1996)

SEC. 311. ø10 U.S.C. 2464 note¿ POLICY REGARDING PERFORMANCE OF

DEPOT-LEVEL MAINTENANCE AND REPAIR FOR THE DEPARTMENT OF DEFENSE.

(a) FINDINGS.—Congress makes the following findings:

(1) The Department of Defense does not have a comprehensive policy regarding the performance of depot-level

maintenance and repair of military equipment.

(2) The absence of such a policy has caused the Congress

to establish guidelines for the performance of such functions.

(3) It is essential to the national security of the United

States that the Department of Defense maintain an organic capability within the department, including skilled personnel,

technical competencies, equipment, and facilities, to perform

depot-level maintenance and repair of military equipment in

order to ensure that the Armed Forces of the United States are

able to meet training, operational, mobilization, and emergency

requirements without impediment.

(4) The organic capability of the Department of Defense to

perform depot-level maintenance and repair of military equipment must satisfy known and anticipated core maintenance

and repair requirements across the full range of peacetime and

wartime scenarios.

(5) Although it is possible that savings can be achieved by

contracting with private-sector sources for the performance of

some work currently performed by Department of Defense depots, the Department of Defense has not determined the type

or amount of work that should be performed under contract

with private-sector sources nor the relative costs and benefits

of contracting for the performance of such work by those

sources.

(b) SENSE OF CONGRESS.—It is the sense of Congress that there

is a compelling need for the Department of Defense to articulate

known and anticipated core maintenance and repair requirements,

to organize the resources of the Department of Defense to meet

those requirements economically and efficiently, and to determine

what work should be performed by the private sector and how such

work should be managed.

(c) REQUIREMENT FOR POLICY.—Not later than March 31, 1996,

the Secretary of Defense shall develop and report to the Committee
1123 Sec. 311 DEPOT-LEVEL MAINTENANCE AND REPAIR POLICY

on Armed Services of the Senate and the Committee on National

Security of the House of Representatives a comprehensive policy on

the performance of depot-level maintenance and repair for the Department of Defense that maintains the capability described in section 2464 of title 10, United States Code.

(d) CONTENT OF POLICY.—In developing the policy, the Secretary of Defense shall do each of the following:

(1) Identify for each military department, with the concurrence of the Secretary of that military department, those

depot-level maintenance and repair activities that are necessary to ensure the depot-level maintenance and repair capability as required by section 2464 of title 10, United States

Code.

(2) Provide for performance of core depot-level maintenance and repair capabilities in facilities owned and operated

by the United States.

(3) Provide for the core capabilities to include sufficient

skilled personnel, equipment, and facilities that—

(A) is of the proper size (i) to ensure a ready and controlled source of technical competence and repair and

maintenance capability necessary to meet the requirements of the National Military Strategy and other requirements for responding to mobilizations and military contingencies, and (ii) to provide for rapid augmentation in time

of emergency; and

(B) is assigned sufficient workload to ensure cost efficiency and technical proficiency in time of peace.

(4) Address environmental liability.

(5) In the case of depot-level maintenance and repair workloads in excess of the workload required to be performed by

Department of Defense depots, provide for competition for

those workloads between public and private entities when

there is sufficient potential for realizing cost savings based on

adequate private-sector competition and technical capabilities.

(6) Address issues concerning exchange of technical data

between the Federal Government and the private sector.

(7) Provide for, in the Secretary’s discretion and after consultation with the Secretaries of the military departments, the

transfer from one military department to another, in accordance with merit-based selection processes, workload that supports the core depot-level maintenance and repair capabilities

in facilities owned and operated by the United States.

(8) Require that, in any competition for a workload (whether among private-sector sources or between depot-level activities of the Department of Defense and private-sector sources),

bids are evaluated under a methodology that ensures that appropriate costs to the Government and the private sector are

identified.

(9) Provide for the performance of maintenance and repair

for any new weapons systems defined as core, under section

2464 of title 10, United States Code, in facilities owned and operated by the United States.

(e) CONSIDERATIONS.—In developing the policy, the Secretary

shall take into consideration the following matters:
Sec. 311 DEPOT-LEVEL MAINTENANCE AND REPAIR POLICY 1124

(1) The national security interests of the United States.

(2) The capabilities of the public depots and the capabilities of businesses in the private sector to perform the maintenance and repair work required by the Department of Defense.

(3) Any applicable recommendations of the Defense Base

Closure and Realignment Commission that are required to be

implemented under the Defense Base Closure and Realignment

Act of 1990.

(4) The extent to which the readiness of the Armed Forces

would be affected by a necessity to construct new facilities to

accommodate any redistribution of depot-level maintenance

and repair workloads that is made in accordance with the recommendation of the Defense Base Closure and Realignment

Commission, under the Defense Base Closure and Realignment

Act of 1990, that such workloads be consolidated at Department of Defense depots or private-sector facilities.

(5) Analyses of costs and benefits of alternatives, including

a comparative analysis of—

(A) the costs and benefits, including any readiness implications, of any proposed policy to convert to contractor

performance of depot-level maintenance and repair workloads where the workload is being performed by Department of Defense personnel; and

(B) the costs and benefits, including any readiness implications, of a policy to transfer depot-level maintenance

and repair workloads among depots.

(f) REPEAL OF 60/40 REQUIREMENT AND REQUIREMENT RELATING TO COMPETITION.—(1) Sections 2466 and 2469 of title 10,

United States Code, are repealed.

(2) The table of sections at the beginning of chapter 146 of

such title is amended by striking out the items relating to sections

2466 and 2469.

(3) The amendments made by paragraphs (1) and (2) shall take

effect on the date (after the date of the enactment of this Act) on

which legislation is enacted that contains a provision that specifically states one of the following:

(A) ‘‘The policy on the performance of depot-level maintenance and repair for the Department of Defense that was submitted by the Secretary of Defense to the Committee on Armed

Services of the Senate and the Committee on National Security

of the House of Representatives pursuant to section 311 of the

National Defense Authorization Act for Fiscal Year 1996 is approved.’’; or

(B) ‘‘The policy on the performance of depot-level maintenance and repair for the Department of Defense that was submitted by the Secretary of Defense to the Committee on Armed

Services of the Senate and the Committee on National Security

of the House of Representatives pursuant to section 311 of the

National Defense Authorization Act for Fiscal Year 1996 is approved with the following modifications:’’ (with the modifications being stated in matter appearing after the colon).

(g) ANNUAL REPORT.—If legislation referred to in subsection

(f)(3) is enacted, the Secretary of Defense shall, not later than

March 1 of each year (beginning with the year after the year in
1125 Sec. 311 DEPOT-LEVEL MAINTENANCE AND REPAIR POLICY

which such legislation is enacted), submit to Congress a report

that—

(1) specifies depot maintenance core capability requirements determined in accordance with the procedures established to comply with the policy prescribed pursuant to

subsections (d)(2) and (d)(3);

(2) specifies the planned amount of workload to be accomplished by the depot-level activities of each military department in support of those requirements for the following fiscal

year; and

(3) identifies the planned amount of workload, which—

(A) shall be measured by direct labor hours and by

amounts to be expended; and

(B) shall be shown separately for each commodity

group.

(h) REVIEW BY GENERAL ACCOUNTING OFFICE.—(1) The Secretary shall make available to the Comptroller General of the

United States all information used by the Department of Defense

in developing the policy under subsections (c) through (e) of this

section.

(2) Not later than 45 days after the date on which the Secretary submits to Congress the report required by subsection (c),

the Comptroller General shall transmit to Congress a report containing a detailed analysis of the Secretary’s proposed policy as reported under such subsection.

(i) REPORT ON DEPOT-LEVEL MAINTENANCE AND REPAIR WORKLOAD.—Not later than March 31, 1996, the Secretary of Defense

shall submit to Congress a report on the depot-level maintenance

and repair workload of the Department of Defense. The report

shall, to the maximum extent practicable, include the following:

(1) An analysis of the need for and effect of the requirement under section 2466 of title 10, United States Code, that

no more than 40 percent of the depot-level maintenance and

repair work of the Department of Defense be contracted for

performance by non-Government personnel, including a description of the effect on military readiness and the national

security resulting from that requirement and a description of

any specific difficulties experienced by the Department of Defense as a result of that requirement.

(2) An analysis of the distribution during the five fiscal

years ending with fiscal year 1995 of the depot-level maintenance and repair workload of the Department of Defense between depot-level activities of the Department of Defense and

non-Government personnel, measured by direct labor hours

and by amounts expended, and displayed, for that five-year period and for each year of that period, so as to show (for each

military department (and separately for the Navy and Marine

Corps)) such distribution.

(3) A projection of the distribution during the five fiscal

years beginning with fiscal year 1997 of the depot-level maintenance and repair workload of the Department of Defense between depot-level activities of the Department of Defense and

non-Government personnel, measured by direct labor hours

and by amounts expended, and displayed, for that five-year pe-
Sec. 311 DEPOT-LEVEL MAINTENANCE AND REPAIR POLICY 1126

riod and for each year of that period, so as to show (for each

military department (and separately for the Navy and Marine

Corps)) such distribution that would be accomplished under a

new policy as required under subsection (c).

(j) OTHER REVIEW BY GENERAL ACCOUNTING OFFICE.—(1) The

Comptroller General of the United States shall conduct an independent audit of the findings of the Secretary of Defense in the report under subsection (i). The Secretary of Defense shall provide to

the Comptroller General for such purpose all information used by

the Secretary in preparing such report.

(2) Not later than 45 days after the date on which the Secretary of Defense submits to Congress the report required under

subsection (i), the Comptroller General shall transmit to Congress

a report containing a detailed analysis of the report submitted

under that subsection.
1127

4. PILOT PROGRAMS FOR CONVERTED DEFENSE

EMPLOYEES

Section 1616 of the National Defense Authorization Act for

Fiscal Year 1997

(Public Law 104–201, approved Sept. 23, 1996)

SEC. 1616. ø5 U.S.C. 8331 note¿ PILOT PROGRAMS FOR DEFENSE EMPLOYEES CONVERTED TO CONTRACTOR EMPLOYEES DUE

TO PRIVATIZATION AT CLOSED MILITARY INSTALLATIONS.

(a) PILOT PROGRAMS AUTHORIZED.—(1) The Secretary of Defense, after consultation with the Director of the Office of Personnel

Management, may establish one or more pilot programs under

which Federal retirement benefits are provided in accordance with

this section to persons who convert from Federal employment to

employment by a Department of Defense contractor in connection

with the privatization of the performance of functions at selected

military installations being closed under the base closure and realignment process.

(2) The Secretary of Defense shall select the military installations to be covered by a pilot program under this section.

(b) ELIGIBLE CONVERTED EMPLOYEES.—(1) A person is a converted employee eligible for Federal retirement benefits under this

section if the person is a former employee of the Department of Defense (other than a temporary employee) who—

(A) while employed by the Department of Defense at a

military installation selected to participate in a pilot program,

performed a function that was recommended, in a report of the

Defense Base Closure and Realignment Commission submitted

to the President under the Defense Base Closure and Realignment Act of 1990 (title XXIX of Public Law 101–510; 10 U.S.C.

2687 note), to be privatized for performance by a defense contractor at the same installation or in the vicinity of the installation;

(B) while so employed, separated from Federal service

after being notified that the employee would be separated in a

reduction in force resulting from such privatization;

(C) at the time separated from Federal service, was covered under the Civil Service Retirement System, but was not

eligible for an immediate annuity under the Civil Service Retirement System;

(D) does not withdraw retirement contributions under section 8342 of title 5, United States Code;

(E) within 60 days following such separation, is employed

by the defense contractor selected to privatize the function to
Sec. 1616 PILOT PROGRAMS FOR CONVERTED DEFENSE EMPLOYEES 1128

perform substantially the same function performed by the person before the separation; and

(F) remains employed by the defense contractor (or a successor defense contractor) or subcontractor of the defense contractor (or successor defense contractor) until attaining early

deferred retirement age (unless the employment is sooner involuntarily terminated for reasons other than performance or

conduct of the employee).

(2) A person who, under paragraph (1), would otherwise be eligible for an early deferred annuity under this section shall not be

eligible for such benefits if the person received separation pay or

severance pay due to a separation described in subparagraph (B)

of that paragraph unless the person repays the full amount of such

pay with interest (computed at a rate determined appropriate by

the Director of the Office of Personnel Management) to the Department of Defense before attaining early deferred retirement age.

(c) RETIREMENT BENEFITS OF CONVERTED EMPLOYEES.—In the

case of a converted employee covered by a pilot program, payment

of a deferred annuity for which the converted employee is eligible

under section 8338(a) of title 5, United States Code, shall commence on the first day of the first month that begins after the date

on which the converted employee attains early deferred retirement

age, notwithstanding the age requirement under that section. If the

employment of a converted employee is involuntarily terminated by

the defense contractor or subcontractor as described in subsection

(b)(1)(F) and the converted employee resumes Federal service before the converted employee attains early deferred retirement age,

the converted employee shall once again be covered under the Civil

Service Retirement System instead of the pilot program.

(d) COMPUTATION OF AVERAGE PAY.—(1)(A) This paragraph applies to a converted employee who was employed in a position classified under the General Schedule immediately before the employee’s covered separation from Federal service.

(B) Subject to subparagraph (C), for purposes of computing the

deferred annuity for a converted employee referred to in subparagraph (A), the average pay of the converted employee, computed

under section 8331(4) of title 5, United States Code, as of the date

of the employee’s covered separation from Federal service, shall be

adjusted at the same time and by the same percentage that rates

of basic pay are increased under section 5303 of such title during

the period beginning on that date and ending on the date on which

the converted employee attains early deferred retirement age.

(C) The average pay of a converted employee, as adjusted

under subparagraph (B), may not exceed the amount to which an

annuity of the converted employee could be increased under section

8340 of title 5, United States Code, in accordance with the limitation in subsection (g)(1) of such section (relating to maximum pay,

final pay, or average pay).

(2)(A) This paragraph applies to a converted employee who was

a prevailing rate employee (as defined under section 5342(2) of title

5, United States Code) immediately before the employee’s covered

separation from Federal service.

(B) For purposes of computing the deferred annuity for a converted employee referred to in subparagraph (A), the average pay
1129 Sec. 1616 PILOT PROGRAMS FOR CONVERTED DEFENSE EMPLOYEES

of the converted employee, computed under section 8331(4) of title

5, United States Code, as of the date of the employee’s covered separation from Federal service, shall be adjusted at the same time

and by the same percentage that pay rates for positions that are

in the same area as, and are comparable to, the last position the

converted employee held as a prevailing rate employee, are increased under section 5343(a) of such title during the period beginning on that date and ending on the date on which the converted

employee attains early deferred retirement age.

(e) PAYMENT OF UNFUNDED LIABILITY.—(1) The military department concerned shall be liable for that portion of any estimated increase in the unfunded liability of the Civil Service Retirement and Disability Fund established under section 8348 of title 5,

United States Code, which is attributable to any benefits payable

from such Fund to a converted employee, and any survivor of a

converted employee, when the increase results from—

(A) an increase in the average pay of the converted employee under subsection (d) upon which such benefits are computed; and

(B) the commencement of an early deferred annuity in accordance with this section before the attainment of 62 years of

age by the converted employee.

(2) The estimated increase in the unfunded liability for each

department referred to in paragraph (1) shall be determined by the

Director of the Office of Personnel Management. In making the determination, the Director shall consider any savings to the Fund as

a result of a pilot program established under this section. The Secretary of the military department concerned shall pay the amount

so determined to the Director in 10 equal annual installments with

interest computed at the rate used in the most recent valuation of

the Civil Service Retirement System, with the first payment thereof due at the end of the fiscal year in which an increase in average

pay under subsection (d) becomes effective.

(f) CONTRACTOR SERVICE NOT CREDITABLE.—Service performed

by a converted employee for a defense contractor after the employee’s covered separation from Federal service is not creditable service for purposes of subchapter III of chapter 83 of title 5, United

States Code.

(g) RECEIPT OF BENEFITS WHILE EMPLOYED BY A DEFENSE

CONTRACTOR.—A converted employee may commence receipt of an

early deferred annuity in accordance with this section while continuing to work for a defense contractor.

(h) LUMP-SUM CREDIT PAYMENT.—If a converted employee dies

before attaining early deferred retirement age, such employee shall

be treated as a former employee who dies not retired for purposes

of payment of the lump-sum credit under section 8342(d) of title 5,

United States Code.

(i) CONTINUED FEDERAL HEALTH BENEFITS COVERAGE.—Notwithstanding section 8905a(e)(1)(A) of title 5, United States Code,

the continued coverage of a converted employee for health benefits

under chapter 89 of such title by reason of the application of section 8905a of such title to such employee shall terminate 90 days

after the date of the employee’s covered separation from

Federal employment. For the purposes of the preceding sentence,
Sec. 1616 PILOT PROGRAMS FOR CONVERTED DEFENSE EMPLOYEES 1130

a person who, except for subsection (b)(2), would be a converted

employee shall be considered a converted employee.

(j) REPORT BY GENERAL ACCOUNTING OFFICE.—The Comptroller General shall conduct a study of each pilot program, if any,

established under this section and submit a report on the pilot program to Congress not later than two years after the date on which

the program is established. The report shall contain the following:

(1) A review and evaluation of the program, including—

(A) an evaluation of the success of the privatization

outcomes of the program;

(B) a comparison and evaluation of such privatization

outcomes with the privatization outcomes with respect to

facilities at other military installations closed or realigned

under the base closure laws;

(C) an evaluation of the impact of the program on the

Federal workforce and whether the program results in the

maintenance of a skilled workforce for defense contractors

at an acceptable cost to the military department concerned; and

(D) an assessment of the extent to which the program

is a cost-effective means of facilitating privatization of the

performance of Federal activities.

(2) Recommendations relating to the expansion of the program to other installations and employees.

(3) Any other recommendation relating to the program.

(k) IMPLEMENTING REGULATIONS.—Not later than 30 days after

the Secretary of Defense notifies the Director of the Office of Personnel Management of a decision to establish a pilot program

under this section, the Director shall prescribe regulations to carry

out the provisions of this section with respect to that pilot program.

Before prescribing the regulations, the Director shall consult with

the Secretary.

(l) DEFINITIONS.—In this section:

(1) The term ‘‘converted employee’’ means a person who,

pursuant to subsection (b), is eligible for benefits under this

section.

(2) The term ‘‘covered separation from Federal service’’

means a separation from Federal service as described under

subsection (b)(1)(B).

(3) The term ‘‘Civil Service Retirement System’’ means the

retirement system under subchapter III of chapter 83 of title

5, United States Code.

(4) The term ‘‘defense contractor’’ means any entity that—

(A) contracts with the Department of Defense to perform a function previously performed by Department of

Defense employees;

(B) performs that function at the same installation at

which such function was previously performed by Department of Defense employees or in the vicinity of that installation; and

(C) is the employer of one or more converted employees.

(5) The term ‘‘early deferred retirement age’’ means the

first age at which a converted employee would have been eligi-
1131 Sec. 1616 PILOT PROGRAMS FOR CONVERTED DEFENSE EMPLOYEES

ble for immediate retirement under subsection (a) or (b) of section 8336 of title 5, United States Code, if such converted employee had remained an employee within the meaning of section 8331(1) of such title continuously until attaining such age.

(6) The term ‘‘severance pay’’ means severance pay payable

under section 5595 of title 5, United States Code.

(7) The term ‘‘separation pay’’ means separation pay payable under section 5597 of title 5, United States Code.

(m) APPLICATION OF PILOT PROGRAM.—In the event that a pilot

program is established for a military installation, the pilot program

shall apply to a covered separation from Federal service by an employee of the Department of Defense at the installation occurring

on or after August 1, 1996.
1132

5. PILOT PROGRAM ON SALES OF MANUFACTURED ARTICLES AND SERVICES OF CERTAIN ARMY INDUSTRIAL FACILITIES WITHOUT REGARD TO AVAILABILITY FROM DOMESTIC SOURCES

Section 141 of the National Defense Authorization Act for

Fiscal Year 1998

(Public Law 105–85, approved Nov. 18, 1997)

SEC. 141. ø10 U.S.C. 4543 note¿ PILOT PROGRAM ON SALES OF MANUFACTURED ARTICLES AND SERVICES OF CERTAIN ARMY

INDUSTRIAL FACILITIES WITHOUT REGARD TO AVAILABILITY FROM DOMESTIC SOURCES.

(a) PILOT PROGRAM REQUIRED.—During fiscal years 1998

through 2004, the Secretary of the Army shall carry out a pilot program to test the efficacy and appropriateness of selling manufactured articles and services of Army industrial facilities under section 4543 of title 10, United States Code, without regard to the

availability of the articles and services from United States commercial sources. In carrying out the pilot program, the Secretary may

use articles manufactured at, and services provided by, not more

than three Army industrial facilities, except that during fiscal year

2002 the Secretary may only use articles manufactured at, and

services provided by, not more than one Army industrial facility.

(b) TEMPORARY WAIVER OF REQUIREMENT FOR DETERMINATION

OF UNAVAILABILITY FROM DOMESTIC SOURCE.—Under the pilot program, the Secretary of the Army is not required under section

4543(a)(5) of title 10, United States Code, to determine whether an

article or service is available from a commercial source located in

the United States in the case of any of the following sales for which

a solicitation of offers is issued during the period during which the

pilot program is being conducted:

(1) A sale of articles to be incorporated into a weapon system being procured by the Department of Defense.

(2) A sale of services to be used in the manufacture of a

weapon system being procured by the Department of Defense.

(c) TRANSFER OF CERTAIN SUMS.—For each Army industrial facility participating in the pilot program that sells manufactured articles and services in a total amount in excess of $20,000,000 in

any fiscal year, the amount equal to one-half of one percent of such

total amount shall be transferred from the sums in the Army

Working Capital Fund for unutilized plant capacity to appropriations available for the following fiscal year for the demilitarization

of conventional ammunition by the Army.
1133 Sec. 141 SALES BY ARMY INDUSTRIAL FACILITIES

1Section 111(c) of the Bob Stump National Defense Authorization Act for Fiscal Year 2003

(Public Law 107–314; 116 Stat. 2473; 10 U.S.C. 4543 note) required the Inspector General of

the Department of Defense to review the experience under the pilot program and, not later than

July 1, 2003, to submit to Congress a report on the results of the review. The report shall contain the views, information, and recommendations called for under this subsection (d). In carrying out the review and preparing the report, the Inspector General shall take into consideration the report submitted to Congress under such subsection.

(d) REVIEW BY INSPECTOR GENERAL.— 1The Inspector General

of the Department of Defense shall review the experience under the

pilot program under this section and, not later than July 1, 1999,

submit to Congress a report on the results of the review. The report shall contain the following:

(1) The Inspector General’s views regarding the extent to

which the waiver under subsection (b) enhances the opportunity for United States manufacturers, assemblers, developers, and other concerns to enter into or participate in contracts and teaming arrangements with Army industrial facilities under weapon system programs of the Department of Defense.

(2) The Inspector General’s views regarding the extent to

which the waiver under subsection (b) enhances the opportunity for Army industrial facilities referred to in section

4543(a) of title 10, United States Code, to enter into or participate in contracts and teaming arrangements with United

States manufacturers, assemblers, developers, and other concerns under weapon system programs of the Department of Defense.

(3) The Inspector General’s views regarding the effect of

the waiver under subsection (b) on the ability of small businesses to compete for the sale of manufactured articles or services in the United States in competitions to enter into or participate in contracts and teaming arrangements under weapon

system programs of the Department of Defense.

(4) Specific examples under the pilot program that support

the Inspector General’s views.

(5) Any other information that the Inspector General considers pertinent regarding the effects of the waiver of section

4543(a)(5) of title 10, United States Code, under the pilot program on opportunities for United States manufacturers, assemblers, developers, or other concerns, and for Army industrial

facilities, to enter into or participate in contracts and teaming

arrangements under weapon system programs of the Department of Defense.

(6) Any recommendations that the Inspector General considers appropriate regarding continuation or modification of

the policy set forth in section 4543(a)(5) of title 10, United

States Code.
1134

6. PILOT PROGRAMS FOR REVITALIZING LABORATORIES AND TEST AND EVALUATION CENTERS OF

THE DEPARTMENT OF DEFENSE

a. Section 2892 of the National Defense Authorization Act

for Fiscal Year 1996

(Public Law 104–106; approved Feb. 10, 1996)

SEC. 2892. DEPARTMENT OF DEFENSE LABORATORY REVITALIZATION

DEMONSTRATION PROGRAM.

(a) PROGRAM AUTHORIZED.—The Secretary of Defense may

carry out a program (to be known as the ‘‘Department of Defense

Laboratory Revitalization Demonstration Program’’) for the revitalization of Department of Defense laboratories. Under the program,

the Secretary may carry out minor military construction projects in

accordance with subsection (b) and other applicable law to improve

Department of Defense laboratories covered by the program.

(b) INCREASED MAXIMUM AMOUNTS APPLICABLE TO MINOR CONSTRUCTION PROJECTS.—For purpose of any military construction

project carried out under the program—

(1) the amount provided in the second sentence of subsection (a)(1) of section 2805 of title 10, United States Code,

shall be deemed to be $3,000,000;

(2) the amount provided in subsection (b)(1) of such section

shall be deemed to be $1,500,000; and

(3) the amount provided in subsection (c)(1)(B) of such section shall be deemed to be $1,000,000.

(c) PROGRAM REQUIREMENTS.—(1) Not later than 30 days before commencing the program, the Secretary shall establish procedures for the review and approval of requests from Department of

Defense laboratories for construction under the program.

(2) The laboratories at which construction may be carried out

under the program may not include Department of Defense laboratories that are contractor-owned.

(d) REPORT.—Not later than February 1, 2003, the Secretary

shall submit to Congress a report on the program. The report shall

include the Secretary’s conclusions and recommendation regarding

the desirability of making the authority set forth under subsection

(b) permanent.

(e) EXCLUSIVITY OF PROGRAM.—Nothing in this section may be

construed to limit any other authority provided by law for any military construction project at a Department of Defense laboratory

covered by the program.

(f) DEFINITIONS.—In this section:

(1) The term ‘‘laboratory’’ includes—

(A) a research, engineering, and development center;
1135 Sec. 246 DEFENSE LABORATORIES AND TEST AND EVALUATION CENTERS

(B) a test and evaluation activity owned, funded, and

operated by the Federal Government through the Department of Defense; and

(C) a supporting facility of a laboratory.

(2) The term ‘‘supporting facility’’, with respect to a laboratory, means any building or structure that is used in support

of research, development, test, and evaluation at the laboratory.

(g) EXPIRATION OF AUTHORITY.—The Secretary may not commence a construction project under the program after September

30, 2003.

b. Section 246 of the Strom Thurmond National Defense

Authorization Act for Fiscal Year 1999

(Public Law 105–261, approved Oct. 17, 1998)

SEC. 246. ø10 U.S.C. 2358 note¿ PILOT PROGRAM FOR REVITALIZING

THE LABORATORIES AND TEST AND EVALUATION CENTERS OF THE DEPARTMENT OF DEFENSE.

(a) PILOT PROGRAM.—(1) The Secretary of Defense may carry

out a pilot program to demonstrate improved cooperative relationships with universities and other private sector entities for the performance of research and development functions.

(2) Under the pilot program, the Secretary of Defense shall

provide the director of one science and technology laboratory, and

the director of one test and evaluation center, of each military department with authority for the following:

(A) To explore innovative methods for quickly, efficiently,

and fairly entering into cooperative relationships with universities and other private sector entities with respect to the performance of research and development functions.

(B) To waive any restrictions on the demonstration and

implementation of such methods that are not required by law.

(C) To develop or expand innovative methods of operation

that provide more defense research for each dollar of cost, including to carry out such initiatives as focusing on the performance of core functions and adopting more business-like

practices.

(3) In selecting the laboratories and centers for participation in

the pilot program, the Secretary shall consider laboratories and

centers where innovative management techniques have been demonstrated, particularly as documented under sections 1115 through

1119 of title 31, United States Code, relating to Government agency performance and results.

(4) The Secretary may carry out the pilot program at each selected laboratory and center for up to six years beginning not later

than March 1, 1999.

(b) REPORTS.—(1) Not later than March 1, 1999, the Secretary

of Defense shall submit a report on the implementation of the pilot

program to Congress. The report shall include the following:

(A) Each laboratory and center selected for the pilot program.

(B) To the extent possible, a description of the innovative

concepts that are to be tested at each laboratory or center.
Sec. 245 DEFENSE LABORATORIES AND TEST AND EVALUATION CENTERS 1136

(C) The criteria to be used for measuring the success of

each concept to be tested.

(2) Promptly after the expiration of the period for participation

of a laboratory or center in the pilot program, the Secretary of Defense shall submit to Congress a final report on the participation

of the laboratory or center in the pilot program. The report shall

contain the following:

(A) A description of the concepts tested.

(B) The results of the testing.

(C) The lessons learned.

(D) Any proposal for legislation that the Secretary

recommends on the basis of the experience at the laboratory or

center under the pilot program.

(c) COMMENDATION.—Congress commends the Secretary of Defense for the progress made by the science and technology laboratories and test and evaluation centers of the Department of Defense and encourages the Secretary to take the actions necessary

to ensure continued progress for the laboratories and test and evaluation centers in developing cooperative relationships with universities and other private sector entities for the performance of research and development functions.

c. Section 245 of the National Defense Authorization Act for

Fiscal Year 2000

(Public Law 106–65, approved Oct. 5, 1999)

SEC. 245. ø10 U.S.C. 2358 note¿ ADDITIONAL PILOT PROGRAM FOR REVITALIZING DEPARTMENT OF DEFENSE LABORATORIES.

(a) AUTHORITY.—(1) The Secretary of Defense may carry out a

pilot program to demonstrate improved efficiency in the performance of research, development, test, and evaluation functions of the

Department of Defense. The pilot program under this section is in

addition to, but may be carried out in conjunction with, the pilot

program authorized by section 246 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Public Law

105–261; 112 Stat. 1955; 10 U.S.C. 2358 note).

(2) Under the pilot program, the Secretary of Defense shall

provide the director of one science and technology laboratory, and

the director of one test and evaluation laboratory, of each military

department with authority for the following:

(A) To ensure that the laboratories selected can attract a

workforce appropriately balanced between permanent and temporary personnel and among workers with an appropriate level

of skills and experience and that those laboratories can effectively compete in hiring to obtain the finest scientific talent.

(B) To develop or expand innovative methods of operation

that provide more defense research for each dollar of cost, including carrying out initiatives such as focusing on the performance of core functions and adopting more business-like

practices.

(C) To waive any restrictions not required by law that

apply to the demonstration and implementation of methods for

achieving the objectives set forth in subparagraphs (A) and (B).
1137 Sec. 245 DEFENSE LABORATORIES AND TEST AND EVALUATION CENTERS

(3) In selecting the laboratories for participation in the pilot

program, the Secretary shall consider laboratories where innovative management techniques have been demonstrated, particularly

as documented under sections 1115 through 1119 of title 31,

United States Code, relating to Government agency performance

and results.

(4) The Secretary may carry out the pilot program at each selected laboratory for up to five years beginning not later than

March 1, 2000.

(b) REPORTS.—(1) Not later than March 1, 2000, the Secretary

of Defense shall submit to Congress a report on the implementation

of the pilot program. The report shall include the following:

(A) Each laboratory selected for the pilot program.

(B) To the extent possible, a description of the innovative

concepts that are to be tested at each laboratory.

(C) The criteria to be used for measuring the success of

each concept to be tested.

(2) Promptly after the expiration of the period for participation

of a laboratory in the pilot program, the Secretary of Defense shall

submit to Congress a final report on the participation of that laboratory in the pilot program. The report shall include the following:

(A) A description of the concepts tested.

(B) The results of the testing.

(C) The lessons learned.

(D) Any proposal for legislation that the Secretary recommends on the basis of the experience at that laboratory

under the pilot program.
1138

7. NAVY HIGHER EDUCATION PILOT PROGRAM REGARDING ADMINISTRATION OF BUSINESS RELATIONSHIPS

BETWEEN GOVERNMENT AND PRIVATE SECTOR

Section 1108 of the National Defense Authorization Act for

Fiscal Year 1998

(Public Law 105–85; approved Nov. 18, 1997)

SEC. 1108. ø10 U.S.C. 5013 note¿ NAVY HIGHER EDUCATION PILOT PROGRAM REGARDING ADMINISTRATION OF BUSINESS RELATIONSHIPS BETWEEN GOVERNMENT AND PRIVATE

SECTOR.

(a) PILOT PROJECT AUTHORIZED.—During fiscal years 1998

through 2002, the Secretary of the Navy may establish and conduct

a pilot program of graduate-level higher education regarding the

administration of business relationships between the Government

and the private sector.

(b) PURPOSE.—The purpose of the pilot program is to make

available to employees of the Naval Undersea Warfare Center, employees of the Naval Sea Systems Command, and employees of the

Acquisition Center for Excellence of the Navy (upon establishment

of such Acquisition Center), a curriculum of graduate-level higher

education leading to the award of a graduate degree designed to

prepare participants effectively to meet the challenges of administering Government contracting and other business relationships

between the United States and private sector businesses in the

context of constantly changing or newly emerging industries, technologies, governmental organizations, policies, and procedures (including governmental organizations, policies, and procedures recommended in the National Performance Review).

(c) PARTNERSHIP WITH INSTITUTION OF HIGHER EDUCATION.—

(1) The Secretary of the Navy may enter into an agreement with

an institution of higher education to assist the Naval Undersea

Warfare Center with the development of the curriculum for the

pilot program, to offer courses and provide instruction and materials to participants to the extent provided for in the agreement, to

provide such other assistance in support of the program as may be

provided for in the agreement, and to award a graduate degree

under the program.

(2) To be eligible to enter into an agreement under paragraph

(1), an institution of higher education must have an established

program of graduate-level education that is relevant to the purpose

of the pilot program.

(d) CURRICULUM.—The curriculum offered under the pilot

program shall—

(1) be designed specifically to achieve the purpose of the

pilot program; and
1139 Sec. 1108 NAVY HIGHER EDUCATION PILOT PROGRAM

(2) include courses that are—

(A) typically offered under curricula leading to award

of the degree of Master of Business Administration by institutions of higher education; and

(B) necessary for meeting educational qualification requirements for certification as an acquisition program

manager.

(e) DISTANCE LEARNING OPTION.—The Secretary of the Navy

may include as part of the pilot program policies and procedures

for offering distance learning instruction by means of telecommunications, correspondence, or other methods for off-site receipt of instruction.

(f) REPORT.—Not later than 90 days after the termination of

the pilot program, the Secretary of the Navy shall submit to Congress a report containing—

(1) an assessment by the Secretary of the value of the program for meeting the purpose of the program and the desirability of permanently establishing a similar program for other

employees of the Department of Defense; and

(2) such other information and recommendations regarding

the program as the Secretary considers appropriate.

(g) LIMITATION ON FUNDING SOURCE.—Any funds required for

the pilot program for a fiscal year shall be derived only from the

appropriation ‘‘Operation and Maintenance, Navy’’ for that fiscal

year.
1140

8. ARSENAL SUPPORT PROGRAM INITIATIVE

Section 343 of the Floyd D. Spence National Defense

Authorization Act for Fiscal Year 2001

(as enacted by Public Law 106–398; 114 Stat. 1654A–65; approved Oct. 30, 2000)

SEC. 343. ø10 U.S.C. 4551 note¿ ARSENAL SUPPORT PROGRAM INITIATIVE.

(a) DEMONSTRATION PROGRAM REQUIRED.—To help maintain

the viability of the Army manufacturing arsenals and the unique

capabilities of these arsenals to support the national security interests of the United States, the Secretary of the Army shall carry out

a demonstration program under this section during fiscal years

2001 through 2004 at each manufacturing arsenal of the Department of the Army.

(b) PURPOSES OF DEMONSTRATION PROGRAM.—The purposes of

the demonstration program are as follows:

(1) To provide for the utilization of the existing skilled

workforce at the Army manufacturing arsenals by commercial

firms.

(2) To provide for the reemployment and retraining of

skilled workers who, as a result of declining workload and reduced Army spending on arsenal production requirements at

these Army arsenals, are idled or underemployed.

(3) To encourage commercial firms, to the maximum extent

practicable, to use these Army arsenals for commercial purposes.

(4) To increase the opportunities for small businesses (including socially and economically disadvantaged small business

concerns and new small businesses) to use these Army arsenals for those purposes.

(5) To maintain in the United States a work force having

the skills in manufacturing processes that are necessary to

meet industrial emergency planned requirements for national

security purposes.

(6) To demonstrate innovative business practices, to support Department of Defense acquisition reform, and to serve as

both a model and a laboratory for future defense conversion

initiatives of the Department of Defense.

(7) To the maximum extent practicable, to allow the operation of these Army arsenals to be rapidly responsive to the

forces of free market competition.

(8) To reduce or eliminate the cost of Government ownership of these Army arsenals, including the costs of operations

and maintenance, the costs of environmental remediation, and

other costs.
1141 Sec. 343 ARSENAL SUPPORT PROGRAM INITIATIVE

(9) To reduce the cost of products of the Department of Defense produced at these Army arsenals.

(10) To leverage private investment at these Army arsenals through long-term facility use contracts, property management contracts, leases, or other agreements that support and

advance the demonstration program for the following activities:

(A) Recapitalization of plant and equipment.

(B) Environmental remediation.

(C) Promotion of commercial business ventures.

(D) Other activities approved by the Secretary of the

Army.

(11) To foster cooperation between the Department of the

Army, property managers, commercial interests, and State and

local agencies in the implementation of sustainable development strategies and investment in these Army arsenals.

(c) CONTRACT AUTHORITY.—(1) In the case of each Army manufacturing arsenal, the Secretary of the Army may enter into contracts with commercial firms to authorize the contractors, consistent with section 4543 of title 10, United States Code—

(A) to use the arsenal, or a portion of the arsenal, and the

skilled workforce at the arsenal to manufacture weapons,

weapon components, or related products consistent with the

purposes of the program; and

(B) to enter into subcontracts for the commercial use of the

arsenal consistent with such purposes.

(2) A contract under paragraph (1) shall require the contractor

to contribute toward the operation and maintenance of the Army

manufacturing arsenal covered by the contract.

(3) In the event an Army manufacturing arsenal is converted

to contractor operation, the Secretary may enter into a contract

with the contractor to authorize the contractor, consistent with section 4543 of title 10, United States Code—

(A) to use the facility during the period of the program in

a manner consistent with the purposes of the program; and

(B) to enter into subcontracts for the commercial use of the

facility consistent with such purposes.

(d) LOAN GUARANTEES.—(1) Subject to paragraph (2), the Secretary of the Army may guarantee the repayment of any loan made

to a commercial firm to fund, in whole or in part, the establishment

of a commercial activity at an Army manufacturing arsenal under

this section.

(2) Loan guarantees under this subsection may not be committed except to the extent that appropriations of budget authority

to cover their costs are made in advance, as required by section 504

of the Federal Credit Reform Act of 1990 (2 U.S.C. 661c).

(3) The Secretary of the Army may enter into agreements with

the Administrator of the Small Business Administration or the Administrator of the Farmers Home Administration, the Administrator of the Rural Development Administration, or the head of

other appropriate agencies of the Department of Agriculture, under

which such Administrators may, under this subsection—

(A) process applications for loan guarantees;

(B) guarantee repayment of loans; and
Sec. 343 ARSENAL SUPPORT PROGRAM INITIATIVE 1142

(C) provide any other services to the Secretary of the Army

to administer this subsection.

(4) An Administrator referred to in paragraph (3) may guarantee loans under this section to commercial firms of any size, notwithstanding any limitations on the size of applicants imposed on

other loan guarantee programs that the Administrator administers.

To the extent practicable, each Administrator shall use the same

procedures for processing loan guarantee applications under this

subsection as the Administrator uses for processing loan guarantee

applications under other loan guarantee programs that the Administrator administers.

(e) LOAN LIMITS.—The maximum amount of loan principal

guaranteed during a fiscal year under subsection (d) may not

exceed—

(1) $20,000,000, with respect to any single borrower; and

(2) $320,000,000 with respect to all borrowers.

(f ) TRANSFER OF FUNDS.—The Secretary of the Army may

transfer to an Administrator providing services under subsection

(d), and the Administrator may accept, such funds as may be necessary to administer loan guarantees under such subsection.

(g) REPORTING REQUIREMENTS.—(1) Not later than July 1 of

each year in which a guarantee issued under subsection (d) is in

effect, the Secretary of the Army shall submit to Congress a report

specifying the amounts of loans guaranteed under such subsection

during the preceding calendar year. No report is required after fiscal year 2004.

(2) Not later than July 1, 2003, the Secretary of the Army shall

submit to the congressional defense committees a report on the results of the demonstration program since its implementation, including the Secretary’s views regarding the benefits of the program

for Army manufacturing arsenals and the Department of the Army

and the success of the program in achieving the purposes specified

in subsection (b). The report shall contain a comprehensive review

of contracting at the Army manufacturing arsenals covered by the

program and such recommendations as the Secretary considers appropriate regarding changes to the program.
1143

9. MISCELLANEOUS WORKPLACE AND DEPOT ISSUES

FROM NATIONAL DEFENSE AUTHORIZATION ACT FOR

FISCAL YEAR 2004

Subtitle C of title III of the National Defense Authorization

Act for Fiscal Year 2004

(Public Law 108–136; approved Nov. 24, 2003)

TITLE III—OPERATION AND MAINTENANCE

* * * * * * *

Subtitle C—Workplace and Depot Issues

* * * * * * *

SEC. 334. ø10 U.S.C. 2304 note¿ RESOURCES-BASED SCHEDULES FOR

COMPLETION OF PUBLIC-PRIVATE COMPETITIONS FOR

PERFORMANCE OF DEPARTMENT OF DEFENSE FUNCTIONS.

(a) APPLICATION OF TIMEFRAMES.—Any interim or final deadline or other schedule-related milestone for the completion of a Department of Defense public-private competition shall be established

solely on the basis of considered research and sound analysis regarding the availability of sufficient personnel, training, and technical resources to the Department of Defense to carry out such

competition in a timely manner.

(b) EXTENSION OF TIMEFRAMES.—(1) The Department of Defense official responsible for managing a Department of Defense

public-private competition shall extend any interim or final deadline or other schedule-related milestone established (consistent

with subsection (a)) for the completion of the competition if the official determines that the personnel, training, or technical resources

available to the Department of Defense to carry out the competition

in a timely manner are insufficient.

(2) A determination under this subsection shall be made pursuant to procedures prescribed by the Secretary of Defense.

SEC. 335. ø10 U.S.C. 2461 note¿ DELAYED IMPLEMENTATION OF REVISED OFFICE OF MANAGEMENT AND BUDGET CIRCULAR

A–76 BY DEPARTMENT OF DEFENSE PENDING REPORT.

(a) LIMITATION PENDING REPORT.—No studies or competitions

may be conducted under the policies and procedures contained in

the revised Office of Management and Budget Circular A–76 dated

May 29, 2003 (68 Fed. Reg. 32134), relating to the possible contracting out of commercial activities being performed, as of such

date, by employees of the Department of Defense, until the end of

the 45-day period beginning on the date on which the Secretary of
Sec. 336 WORKPLACE AND DEPOT ISSUES 1144

Defense submits to Congress a report on the effects of the revisions.

(b) CONTENT OF REPORT.—The report required by subsection

(a) shall contain, at a minimum, specific information regarding the

following:

(1) The extent to which the revised circular will ensure

that employees of the Department of Defense have the opportunity to compete to retain their jobs.

(2) The extent to which the revised circular will provide

appeal and protest rights to employees of the Department of

Defense.

(3) Identify safeguards in the revised circular to ensure

that all public-private competitions are fair, appropriate, and

comply with requirements of full and open competition.

(4) The plans of the Department to ensure an appropriate

phase-in period for the revised circular, as recommended by

the Commercial Activities Panel of the Government Accounting

Office in its April 2002 report to Congress, including recommendations for any legislative changes that may be required to ensure a smooth and efficient phase-in period.

(5) The plans of the Department to provide training to employees of the Department of Defense regarding the revised circular, including how the training will be funded, how employees will be selected to receive the training, and the number of

employees likely to receive the training.

(6) The plans of the Department to collect and analyze

data on the costs and quality of work contracted out or retained in-house as a result of a sourcing process conducted

under the revised circular.

SEC. 336. ø10 U.S.C. 2461 note¿ PILOT PROGRAM FOR BEST-VALUE

SOURCE SELECTION FOR PERFORMANCE OF INFORMATION TECHNOLOGY SERVICES.

(a) AUTHORITY TO USE BEST-VALUE CRITERION.—The Secretary

of Defense may carry out a pilot program for the procurement of

information technology services for the Department of Defense that

uses a best-value criterion in the selection of the source for the performance of the information technology services.

(b) REQUIRED EXAMINATION UNDER PILOT PROJECT.—Under

the pilot program, the Secretary of Defense shall modify the examination otherwise required by section 2461(b)(3)(A) of title 10,

United States Code, to be an examination of the performance of an

information technology services function by Department of Defense

civilian employees and by one or more private contractors to demonstrate whether—

(1) a change to performance by the private sector will result in the best value to the Government over the life of the

contract, as determined in accordance with the competition requirements of Office of Management and Budget Circular A–

76; and

(2) certain benefits exist, in addition to price, that warrant

performance of the function by a private sector source at a cost

higher than that of performance by Department of Defense civilian employees.
1145 Sec. 337 WORKPLACE AND DEPOT ISSUES

(c) EXEMPTION FOR PILOT PROGRAM.—Section 2462(a) of title

10, United States Code, does not apply to the procurement of information technology services under the pilot program.

(d) DURATION OF PILOT PROGRAM.—(1) The authority to carry

out the pilot program begins on the date on which the Secretary

of Defense submits to Congress the report on the effect of the recent revisions to Office of Management and Budget Circular A–76,

as required by section 335 of this Act, and expires on September

30, 2008.

(2) The expiration of the pilot program shall not affect the selection of the source for the performance of an information technology services function for the Department of Defense for which

the analysis required by section 2461(b)(3) of title 10, United

States Code, has been commenced before the expiration date or for

which a solicitation has been issued before the expiration date.

(e) GAO REVIEW.—Not later than February 1, 2008, the Comptroller General shall submit to Congress a report containing—

(1) a review of the pilot program to assess the extent to

which the pilot program is effective and is equitable for the potential public sources and the potential private sources of information technology services for the Department of Defense; and

(2) any other conclusions of the Comptroller General resulting from the review.

(f) INFORMATION TECHNOLOGY SERVICE DEFINED.—In this section, the term ‘‘information technology service’’ means any service

performed in the operation or maintenance of information technology (as defined in section 11101 of title 40, United States Code)

that is necessary for or beneficial to the accomplishment of the authorized functions of the Department of Defense (other than functions which the Secretary of Defense determines must be performed by military or Government personnel).

SEC. 337. ø10 U.S.C. 113 note¿ HIGH-PERFORMING ORGANIZATION BUSINESS PROCESS REENGINEERING PILOT PROGRAM.

(a) PILOT PROGRAM.—The Secretary of Defense shall establish

a pilot program under which the Secretary concerned shall create,

or continue the implementation of, high-performing organizations

through the conduct of a Business Process Reengineering initiative

at selected military installations and facilities under the jurisdiction of the Secretary concerned.

(b) EFFECT OF PARTICIPATION IN PILOT PROGRAM.—(1) During

the period of an organization’s participation in the pilot program,

including the periods referred to in paragraphs (2) and (3) of subsection (f), the Secretary concerned may not require the organization to undergo any Office of Management and Budget Circular A–

76 competition or other public-private competition involving any

function of the organization covered by the Business Process Reengineering initiative. The organization may elect to undergo such

a competition as part of the initiative.

(2) Civilian employee or military personnel positions of the participating organization that are part of the Business Process Reengineering initiative shall be counted toward any numerical goals,

target, or quota that the Secretary concerned is required or requested to meet during the term of the pilot program regarding the

number of positions to be covered by public-private competitions.
Sec. 337 WORKPLACE AND DEPOT ISSUES 1146

(c) ELIGIBLE ORGANIZATIONS.—Subject to subsection (d), the

Secretary concerned may select two types of organizations to participate in the pilot program:

(1) Organizations that underwent a Business Process Reengineering initiative within the preceding five years, achieved

major performance enhancements under the initiative, and will

be able to sustain previous or achieve new performance goals

through the continuation of its existing or completed Business

Process Reengineering plan.

(2) Organizations that have not undergone or have not successfully completed a Business Process Reengineering initiative, but which propose to achieve, and reasonably could reach,

enhanced performance goals through implementation of a Business Process Reengineering initiative.

(d) ADDITIONAL ELIGIBILITY REQUIREMENTS.—(1) To be eligible

for selection to participate in the pilot program under subsection

(c)(1), an organization described in such subsection shall demonstrate, to the satisfaction of the Secretary concerned, the completion of a total organizational assessment that resulted in enhanced

performance measures at least comparable to those performance

measures that might be achieved through competitive sourcing.

(2) To be eligible for selection to participate in the pilot program under subsection (c)(2), an organization described in such

subsection shall identify, to the satisfaction of the Secretary

concerned—

(A) functions, processes, and measures to be studied under

the Business Process Reengineering initiative;

(B) adequate resources to carry out the Business Process

Reengineering initiative; and

(C) labor-management agreements in place to ensure effective implementation of the Business Process Reengineering initiative.

(e) LIMITATION ON NUMBER OF PARTICIPANTS.—Total participants in the pilot program is limited to eight military installations

and facilities, with some participants to be drawn from organizations described in subsection (c)(1) and some participants to be

drawn from organizations described in subsection (c)(2).

(f) IMPLEMENTATION AND DURATION.—(1) The implementation

and management of a Business Process Reengineering initiative

under the pilot program shall be the responsibility of the commander of the military installation or facility at which the Business

Process Reengineering initiative is carried out.

(2) An organization selected to participate in the pilot program

shall be given a reasonable initial period, to be determined by the

Secretary concerned, in which the organization must implement

the Business Process Reengineering initiative. At the end of this

period, the Secretary concerned shall determine whether the organization has achieved initial progress toward designation as a highperforming organization. In the absence of such progress, the Secretary concerned shall terminate the organization’s participation in

the pilot program.

(3) If an organization successfully completes implementation of

the Business Process Reengineering initiative under paragraph (2),

the Secretary concerned shall designate the organization as a highperforming organization and grant the organization an additional
1147 Sec. 338 WORKPLACE AND DEPOT ISSUES

five-year period in which to achieve projected or planned efficiencies and savings under the pilot program.

(g) REVIEWS AND REPORTS.—The Secretary concerned shall conduct annual performance reviews of the participating organizations

or functions under the jurisdiction of the Secretary concerned. Reviews and reports shall evaluate organizational performance measures or functional performance measures and determine whether

organizations are performing satisfactorily for purposes of continuing participation in the pilot program.

(h) PERFORMANCE MEASURES.—Performance measures utilized

in the pilot program should include the following, which shall be

measured against organizational baselines determined before participation in the pilot program:

(1) Costs, savings, and overall financial performance of the

organization.

(2) Organic knowledge, skills or expertise.

(3) Efficiency and effectiveness of key functions or processes.

(4) Efficiency and effectiveness of the overall organization.

(5) General customer satisfaction.

(i) DEFINITIONS.—In this section

(1) The term ‘‘Business Process Reengineering’’ refers to an

organization’s complete and thorough analysis and reengineering of mission and support functions and processes to

achieve improvements in performance, including a fundamental reshaping of the way work is done to better support an

organization’s mission and reduce costs.

(2) The term ‘‘high-performing organization’’ means an organization whose performance exceeds that of comparable providers, whether public or private.

(3) The term ‘‘Secretary concerned’’ means the Secretary of

a military department and the Secretary of Defense, with respect to matters concerning the Defense Agencies.

SEC. 338. ø10 U.S.C. 5013 note¿ NAVAL AVIATION DEPOTS MULTITRADES DEMONSTRATION PROJECT.

(a) DEMONSTRATION PROJECT REQUIRED.—In accordance with

section 4703 of title 5, United States Code, the Secretary of the

Navy shall carry out a demonstration project under which three

Naval Aviation Depots are given the flexibility to promote by one

grade level workers who are certified at the journey level as able

to perform multiple trades.

(b) SELECTION REQUIREMENTS.—As a condition on eligibility for

selection to participate in the demonstration project, the head of a

Naval Aviation Depot shall submit to the Secretary a business case

analysis and concept plan—

(1) that, on the basis of the results of analysis of work

processes, demonstrate that process improvements would result from the trade combinations proposed to be implemented

under the demonstration project; and

(2) that describes the improvements in cost, quality, or

schedule of work that are anticipated to result from the participation in the demonstration project.

(c) PARTICIPATING WORKERS.—(1) Actual worker participation

in the demonstration project shall be determined through competitive selection. Not more than 15 percent of the wage grade journey-
Sec. 338 WORKPLACE AND DEPOT ISSUES 1148

man at a demonstration project location may be selected to participate.

(2) Job descriptions and competency-based training plans must

be developed for each worker while in training under the demonstration project and once certified as a multi-trade worker. A certified multi-trade worker who receives a pay grade promotion

under the demonstration project must use each new skill during at

least 25 percent of the worker’s work year.

(d) FUNDING SOURCE.—Appropriations for operation and maintenance of the Naval Aviation Depots selected to participate in the

demonstration project shall be used as the source of funds to carry

out the demonstration project, including the source of funds for pay

increases made under the project.

(e) DURATION.—The demonstration project shall be conducted

during fiscal years 2004 through 2006.

(f) REPORT.—Not later than January 15, 2007, the Secretary

shall submit a report to Congress describing the results of the demonstration project.

(g) GAO EVALUATION.—The Secretary shall transmit a copy of

the report to the Comptroller General. Within 90 days after receiving the report, the Comptroller General shall submit to Congress

an evaluation of the report.
1149

J. ADDITIONAL MATTERS

[As amended through the end of the first session of the

108th Congress, December 31, 2003]

1151

1This chapter was enacted by section 1 of Public Law 105–255 (112 Stat. 1253) as part of

the codification of title 36, United States Code. This chapter replaced the Corporation for the

Promotion of Rifle Practice and Firearms Safety Act, which was enacted as title XVI of the National Defense Authorization Act for Fiscal Year 1996 (Public Law 104–106; 110 Stat. 515).

1. CORPORATION FOR THE PROMOTION OF RIFLE

PRACTICE AND FIREARMS SAFETY

(Chapter 407 of title 36, United States Code)

CHAPTER 407—CORPORATION FOR THE PROMOTION OF

RIFLE PRACTICE AND FIREARMS SAFETY 1

SUBCHAPTER I—CORPORATION

Sec.

40701. Organization.

40702. Governing body.

40703. Powers.

40704. Restrictions.

40705. Duty to maintain tax-exempt status.

40706. Distribution of assets on dissolution.

40707. Nonapplication of audit requirements.

SUBCHAPTER II—CIVILIAN MARKSMANSHIP PROGRAM

40721. Responsibility of corporation.

40722. Functions.

40723. Eligibility for participation.

40724. Priority of youth participation.

40725. National Matches and small-arms firing school.

40726. Allowances for junior competitors.

40727. Army support.

40728. Transfer of firearms, ammunition, and parts.

40729. Reservation of firearms, ammunition, and parts.

40730. Surplus property.

40731. Issuance or loan of firearms and supplies.

40732. Sale of firearms and supplies.

40733. Applicability of other law.

SUBCHAPTER I—CORPORATION

§ 40701. Organization

(a) FEDERAL CHARTER.—Corporation for the Promotion of Rifle

Practice and Firearms Safety (in this chapter, the ‘‘corporation’’) is

a federally chartered corporation.

(b) NON-GOVERNMENTAL STATUS.—The corporation is a private

corporation, not a department, agency, or instrumentality of the

United States Government. An officer or employee of the corporation is not an officer or employee of the Government.

§ 40702. Governing body

(a) BOARD OF DIRECTORS.—(1) The board of directors is the

governing body of the corporation. The board of directors may

adopt bylaws, policies, and procedures for the corporation and may
§ 40703 PROMOTION OF RIFLE PRACTICE AND FIREARMS SAFETY 1152

take any other action that it considers necessary for the management and operation of the corporation.

(2) The board shall have at least 9 directors.

(3) The term of office of a director is 2 years. A director may

be reappointed.

(4) A vacancy on the board of directors shall be filled by a majority vote of the remaining directors.

(b) DIRECTOR OF CIVILIAN MARKSMANSHIP.—(1) The board of

directors shall appoint the Director of Civilian Marksmanship.

(2) The Director is responsible for—

(A) the daily operation of the corporation; and

(B) the duties of the corporation under subchapter II of

this chapter.

§ 40703. Powers

The corporation may—

(1) adopt, use, and alter a corporate seal, which shall be

judicially noticed;

(2) make contracts;

(3) acquire, own, lease, encumber, and transfer property as

necessary or convenient to carry out the activities of the corporation;

(4) incur and pay obligations;

(5) charge fees to cover the corporation’s costs in carrying

out the Civilian Marksmanship Program; and

(6) do any other act necessary and proper to carry out the

activities of the corporation.

§ 40704. Restrictions

(a) PROFIT.—The corporation may not operate for profit.

(b) USE OF AMOUNTS COLLECTED.—Amounts collected under

section 40703(3) and (5) of this title, including proceeds from the

sale of firearms, ammunition, repair parts, and other supplies, may

be used only to support the Civilian Marksmanship Program.

§ 40705. Duty to maintain tax-exempt status

The corporation shall be operated in a manner and for purposes that qualify the corporation for exemption from taxation

under section 501(a) of the Internal Revenue Code of 1986 (26

U.S.C. 501(a)) as an organization described in section 501(c)(3) of

that Code (26 U.S.C. 501(c)(3)).

§ 40706. Distribution of assets on dissolution

(a) SECRETARY OF THE ARMY.—On dissolution of the corporation, title to the following items, and the right to possess the items,

vest in the Secretary of the Army—

(1) firearms stored at Defense Distribution Depot, Anniston, Anniston, Alabama on the date of dissolution.

(2) M–16 rifles under control of the corporation.

(3) trophies received from the National Board for the Promotion of Rifle Practice through the date of dissolution.

(b) TAX-EXEMPT ORGANIZATIONS.—(1) On dissolution of the corporation, an asset not described in subsection (a) of this section

may be distributed to an organization that—
1153 § 40723 PROMOTION OF RIFLE PRACTICE AND FIREARMS SAFETY

(A) is exempt from taxation under section 501(a) of the Internal Revenue Code of 1986 (26 U.S.C. 501(a)) as an organization described in section 501(c)(3) of that Code (26 U.S.C.

501(c)(3)); and

(B) performs functions similar to the functions described in

section 40722 of this title.

(2) An asset distributed under this subsection may not be distributed to an individual.

(c) TREASURY.—On dissolution of the corporation, any asset not

distributed under subsection (a) or (b) of this section shall be sold

and the proceeds shall be deposited in the Treasury.

§ 40707. Nonapplication of audit requirements

The audit requirements of section 10101 of this title do not

apply to the corporation.

SUBCHAPTER II—CIVILIAN MARKSMANSHIP PROGRAM

§ 40721. Responsibility of corporation

The corporation shall supervise and control the Civilian

Marksmanship Program.

§ 40722. Functions

The functions of the Civilian Marksmanship Program are—

(1) to instruct citizens of the United States in marksmanship;

(2) to promote practice and safety in the use of firearms;

(3) to conduct competitions in the use of firearms and to

award trophies, prizes, badges, and other insignia to competitors;

(4) to secure and account for firearms, ammunition, and

other equipment for which the corporation is responsible;

(5) to issue, loan, or sell firearms, ammunition, repair

parts, and other supplies under sections 40731 and 40732 of

this title; and

(6) to procure necessary supplies and services to carry out

the Program.

§ 40723. Eligibility for participation

(a) CERTIFICATION.—(1) An individual shall certify by affidavit,

before participating in an activity sponsored or supported by the

corporation, that the individual—

(A) has not been convicted of a felony;

(B) has not been convicted of a violation of section 922 of

title 18; and

(C) is not a member of an organization that advocates the

violent overthrow of the United States Government.

(2) The Director of Civilian Marksmanship may require an individual to provide certification from law enforcement agencies to

verify that the individual has not been convicted of a felony or a

violation of section 922 of title 18.

(b) INELIGIBILITY.—An individual may not participate in an activity sponsored or supported by the corporation if the individual—

(1) has been convicted of a felony; or
§ 40724 PROMOTION OF RIFLE PRACTICE AND FIREARMS SAFETY 1154

(2) has been convicted of a violation of section 922 of title

18.

(c) LIMITING PARTICIPATION.—The Director may limit participation in the program as necessary to ensure—

(1) the safety of participants;

(2) the security of firearms, ammunition, and equipment;

and

(3) the quality of instruction in the use of firearms.

§ 40724. Priority of youth participation

In carrying out the Civilian Marksmanship Program, the corporation shall give priority to activities that benefit firearms safety,

training, and competition for youth and that reach as many youth

participants as possible.

§ 40725. National Matches and small-arms firing school

(a) ANNUAL COMPETITION.—An annual competition called the

‘‘National Matches’’ and consisting of rifle and pistol matches for a

national trophy, medals, and other prizes shall be held as prescribed by the Secretary of the Army.

(b) ELIGIBLE PARTICIPANTS.—The National Matches are open to

members of the Armed Forces, National Guard, Reserve Officers’

Training Corps, Air Force Reserve Officers’ Training Corps, Citizens’ Military Training Camps, Citizens’ Air Training Camps, and

rifle clubs, and to civilians.

(c) SMALL-ARMS FIRING SCHOOL.—A small-arms firing school

shall be held in connection with the National Matches.

(d) OTHER COMPETITIONS.—Competitions for which trophies

and medals are provided by the National Rifle Association of America shall be held in connection with the National Matches.

§ 40726. Allowances for junior competitors

(a) DEFINITION.—In this section, a ‘‘junior competitor’’ is a competitor at the National Matches, a small-arms firing school, a competition in connection with the National Matches, or a special clinic

under section 40725 of this title who is—

(1) less than 18 years of age; or

(2) a member of a gun club organized for the students of

a college or university.

(b) SUBSISTENCE ALLOWANCE.—A junior competitor may be

paid a subsistence allowance in an amount prescribed by the Secretary of the Army.

(c) TRAVEL ALLOWANCE.—A junior competitor may be paid a

travel allowance in an amount prescribed by the Secretary instead

of travel expenses and subsistence while traveling. The travel allowance for the return trip may be paid in advance.

§ 40727. Army support

(a) LOGISTICAL SUPPORT.—The Secretary of the Army shall provide logistical support to the Civilian Marksmanship Program for

competitions and other activities. The corporation shall reimburse

the Secretary for incremental direct costs incurred in providing

logistical support. The reimbursements shall be credited to the appropriations account of the Department of the Army that is

charged to provide the logistical support.
1155 § 40728 PROMOTION OF RIFLE PRACTICE AND FIREARMS SAFETY

(b) NATIONAL MATCHES.—(1) The National Matches may be

held at Department of Defense facilities where the National

Matches were held before February 10, 1996.

(2) The Secretary shall provide, without cost to the corporation,

members of the National Guard and Army Reserve to support the

National Matches as part of the annual training under title 10 and

title 32.

(c) REGULATIONS.—The Secretary shall prescribe regulations to

carry out this section.

§ 40728. Transfer of firearms, ammunition, and parts

(a) REQUIRED TRANSFERS.—In accordance with subsection (b) of

this section, the Secretary of the Army shall transfer to the corporation all firearms and ammunition that, on February 9, 1996,

were under the control of the director of civilian marksmanship (as

that position existed under section 4307 of title 10 on February 9,

1996), including—

(1) all firearms on loan to affiliated clubs and State associations;

(2) all firearms in the possession of the Civilian Marksmanship Support Detachment; and

(3) all M–1 Garand and caliber .22 rimfire rifles stored at

Defense Distribution Depot, Anniston, Anniston, Alabama.

(b) TIME FOR TRANSFERS.—The Secretary shall transfer firearms and ammunition under subsection (a) of this section as and

when necessary to enable the corporation—

(1) to issue or loan firearms or ammunition under section

40731 of this title; or

(2) to sell firearms or ammunition under section 40732 of

this title.

(c) VESTING OF TITLE IN TRANSFERRED ITEMS.—Title to an item

transferred to the corporation under this section shall vest in the

corporation—

(1) on the issuance of the item to an eligible recipient

under section 40731 of this title; or

(2) immediately before the corporation delivers the item to

a purchaser in accordance with a contract for sale of the item

that is authorized under section 40732 of this title.

(d) STORAGE OF FIREARMS.—Firearms stored at Defense Distribution Depot, Anniston, Anniston, Alabama, before February 10,

1996, and used for the Civilian Marksmanship Program (as that

program existed under section 4308(e) of title 10 before February

10, 1996), shall remain at that facility or another storage facility

designated by the Secretary, without cost to the corporation, until

the firearms are issued, loaned, or sold by the corporation, or otherwise transferred to the corporation.

(e) DISCRETIONARY TRANSFER OF PARTS.—The Secretary may

transfer from the inventory of the Department of the Army to the

corporation any part from a rifle designated to be demilitarized.

(f ) LIMITATION ON DEMILITARIZATION OF M–1 RIFLES.—After

February 10, 1996, the Secretary may not demilitarize an M–1 Garand rifle in the inventory of the Army unless the Defense Logistics

Agency decides the rifle is unserviceable.

(g) COST OF TRANSFERS.—A transfer of firearms, ammunition,

or parts to the corporation under this section shall be made with-
§ 40729 PROMOTION OF RIFLE PRACTICE AND FIREARMS SAFETY 1156

out cost to the corporation, except that the corporation shall assume the cost of preparation and transportation of firearms and

ammunition transferred under this section.

§ 40729. Reservation of firearms, ammunition, and parts

(a) RESERVATION.—The Secretary of the Army shall reserve for

the corporation—

(1) firearms described in section 40728(a) of this title;

(2) ammunition for firearms described in 40728(a) of this

title;

(3) M–16 rifles held by the Department of the Army on

February 10, 1996, and used to support the small-arms firing

school; and

(4) parts from, and other supplies for, surplus caliber .30

and caliber .22 rimfire rifles.

(b) EXCEPTION.—This section does not supersede the authority

provided in section 1208 of the National Defense Authorization Act

for Fiscal Years 1990 and 1991 (Public Law 101–189; 10 U.S.C. 372

note).

§ 40730. Surplus property

The corporation may obtain surplus property from the Defense

Reutilization Marketing Service to carry out the Civilian Marksmanship Program. A transfer of property to the corporation under

this section shall be made without cost to the corporation.

§ 40731. Issuance or loan of firearms and supplies

(a) ISSUANCE OR LOAN.—For purposes of training and competition, the corporation may issue or loan, with or without charges to

recover administrative costs, caliber .22 rimfire and caliber .30 surplus rifles, air rifles, caliber .22 and .30 ammunition, repair parts,

and other supplies necessary for activities related to the Civilian

Marksmanship Program to—

(1) organizations affiliated with the corporation that provide firearms training to youth;

(2) the Boy Scouts of America;

(3) 4–H Clubs;

(4) the Future Farmers of America; and

(5) other youth oriented organizations.

(b) SECURITY OF FIREARMS.—The corporation shall ensure adequate oversight and accountability for firearms issued or loaned

under this section. The corporation shall prescribe procedures for

the security of issued or loaned firearms in accordance with United

States, State, and local laws.

§ 40732. Sale of firearms and supplies

(a) AFFILIATED ORGANIZATIONS.—The corporation may sell, at

fair market value, caliber .22 rimfire and caliber .30 surplus rifles,

air rifles, caliber .22 and .30 ammunition, repair parts, and other

supplies to organizations affiliated with the corporation that provide training in the use of firearms.

(b) GUN CLUB MEMBERS.—(1) The corporation may sell, at fair

market value, caliber .22 rimfire and caliber .30 surplus rifles, ammunition, repair parts and other supplies necessary for target prac-
1157 § 40733 PROMOTION OF RIFLE PRACTICE AND FIREARMS SAFETY

tice to a citizen of the United States who is over 18 years of age

and who is a member of a gun club affiliated with the corporation.

(2) Except as provided in section 40733 of this title, sales

under this subsection are subject to applicable United States,

State, and local law. In addition to any other requirement, the corporation shall establish procedures to obtain a criminal records

check of the individual with United States Government and State

law enforcement agencies.

(c) LIMITATION ON SALES.—(1) The corporation may not sell a

repair part designed to convert a firearm to fire in a fully automatic mode.

(2) The corporation may not sell any item to an individual who

has been convicted of—

(A) a felony; or

(B) a violation of section 922 of title 18.

§ 40733. Applicability of other law

Section 922(a)(1)–(3) and (5) of title 18 does not apply to the

shipment, transportation, receipt, transfer, sale, issuance, loan, or

delivery by the corporation, of an item that the corporation is authorized to issue, loan, sell, or receive under this chapter.
1158

2. MISCELLANEOUS AUTHORITIES TO TRANSFER

EXCESS DEFENSE PERSONAL PROPERTY

a. Wildfire Suppression Aircraft Transfer Act of 1996

(Public Law 104–307; approved Oct. 14, 1996)

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Wildfire Suppression Aircraft

Transfer Act of 1996’’.

SEC. 2. ø10 U.S.C. 2576 note¿ AUTHORITY TO SELL AIRCRAFT AND

PARTS FOR WILDFIRE SUPPRESSION PURPOSES.

(a) AUTHORITY.—(1) Notwithstanding subchapter II of chapter

5 of title 40, United States Code, and subject to subsections (b) and

(c), the Secretary of Defense may, during the period beginning on

October 1, 1996, and ending on September 30, 2005, sell the aircraft and aircraft parts referred to in paragraph (2) to persons or

entities that contract with the Federal Government for the delivery

of fire retardant by air in order to suppress wildfire.

(2) Paragraph (1) applies to aircraft and aircraft parts of the

Department of Defense that are determined by the Secretary to

be—

(A) excess to the needs of the Department; and

(B) acceptable for commercial sale.

(b) CONDITIONS OF SALE.—Aircraft and aircraft parts sold

under subsection (a)—

(1) may be used only for the provision of airtanker services

for wildfire suppression purposes; and

(2) may not be flown or otherwise removed from the

United States unless dispatched by the National Interagency

Fire Center in support of an international agreement to assist

in wildfire suppression efforts or for other purposes jointly approved by the Secretary of Defense and the Secretary of Agriculture in writing in advance.

(c) CERTIFICATION OF PERSONS AND ENTITIES.—The Secretary

of Defense may sell aircraft and aircraft parts to a person or entity

under subsection (a) only if the Secretary of Agriculture certifies to

the Secretary of Defense, in writing, before the sale that the person

or entity is capable of meeting the terms and conditions of a contract to deliver fire retardant by air.

(d) REGULATIONS.—(1) As soon as practicable after October 14,

1996, the Secretary of Defense shall, in consultation with the Secretary of Agriculture and the Administrator of General Services,

prescribe regulations relating to the sale of aircraft and aircraft

parts under this section. The regulations prescribed under this

paragraph shall be effective until the end of the period specified in

subsection (a)(1).
1159 Sec. 740 TRANSFER OF EXCESS DEFENSE PROPERTY

(2) The regulations shall—

(A) ensure that the sale of the aircraft and aircraft parts

is made at fair market value (as determined by the Secretary

of Defense) and, to the extent practicable, on a competitive

basis;

(B) require a certification by the purchaser that the aircraft and aircraft parts will be used only in accordance with

the conditions set forth in subsection (b);

(C) establish appropriate means of verifying and enforcing

the use of the aircraft and aircraft parts by the purchaser and

other end users in accordance with the conditions set forth in

subsections (b) and (e); and

(D) ensure, to the maximum extent practicable, that the

Secretary consults with the Administrator of General Services

and with the heads of appropriate departments and agencies

of the Federal Government regarding alternative requirements

for such aircraft and aircraft parts before the sale of such aircraft and aircraft parts under this section.

(e) ADDITIONAL TERMS AND CONDITIONS.—The Secretary of Defense may require such other terms and conditions in connection

with each sale of aircraft and aircraft parts under this section as

the Secretary considers appropriate for such sale. Such terms and

conditions shall meet the requirements of the regulations prescribed under subsection (d).

(f) REPORT.—Not later than March 31, 2005, the Secretary of

Defense shall submit to the Committee on Armed Services of the

Senate and the Committee on Armed Services of the House of Representatives a report on the Secretary’s exercise of authority under

this section. The report shall set forth—

(1) the number and type of aircraft sold under the authority, and the terms and conditions under which the aircraft

were sold;

(2) the persons or entities to which the aircraft were sold;

and

(3) an accounting of the current use of the aircraft sold.

(g) CONSTRUCTION.—Nothing in this section may be construed

as affecting the authority of the Administrator of the Federal Aviation Administration under any other provision of law.

b. Authority to Sell Aircraft and Aircraft Parts for Use in

Responding to Oil Spills

(Section 740 of the Wendell H. Ford Aviation Investment and Reform Act for the

21st Century (Public Law 106–181; approved Apr. 5, 2000))

SEC. 740. ø10 U.S.C. 2576 note¿ AUTHORITY TO SELL AIRCRAFT AND

AIRCRAFT PARTS FOR USE IN RESPONDING TO OIL

SPILLS.

(a) AUTHORITY.—

(1) SALE OF AIRCRAFT AND AIRCRAFT PARTS.—Notwithstanding subchapter II of chapter 5 of title 40, United States

Code, and subject to subsections (b) and (c), the Secretary of

Defense may sell aircraft and aircraft parts referred to in paragraph (2) to a person or entity that provides oil spill response

services (including the application of oil dispersants by air)
Sec. 740 TRANSFER OF EXCESS DEFENSE PROPERTY 1160

pursuant to an oil spill response plan that has been approved

by the Secretary of the Department in which the Coast Guard

is operating.

(2) AIRCRAFT AND AIRCRAFT PARTS THAT MAY BE SOLD.— The aircraft and aircraft parts that may be sold under paragraph (1) are aircraft and aircraft parts of the Department of

Defense that are determined by the Secretary of Defense to

be—

(A) excess to the needs of the Department; and

(B) acceptable for commercial sale.

(b) CONDITIONS OF SALE.—Aircraft and aircraft parts sold

under subsection (a)—

(1) shall have as their primary purpose usage for oil spill

spotting, observation, and dispersant delivery and may not

have any secondary purpose that would interfere with oil spill

response efforts under an oil spill response plan; and

(2) may not be flown outside of or removed from the

United States except for the purpose of fulfilling an international agreement to assist in oil spill dispersing efforts, for

immediate response efforts for an oil spill outside United

States waters that has the potential to threaten United States

waters, or for other purposes that are jointly approved by the

Secretary of Defense and the Secretary of Homeland Security.

(c) CERTIFICATION OF PERSONS AND ENTITIES.—The Secretary

of Defense may sell aircraft and aircraft parts to a person or entity

under subsection (a) only if the Secretary of Homeland Security

certifies to the Secretary of Defense, in writing, before the sale,

that the person or entity is capable of meeting the terms and conditions of a contract to deliver oil spill dispersants by air, and that

the overall system to be employed by that person or entity for the

delivery and application of oil spill dispersants has been sufficiently tested to ensure that the person or entity is capable of being

included in an oil spill response plan that has been approved by

the Secretary of the Department in which the Coast Guard is operating.

(d) REGULATIONS.—

(1) ISSUANCE.—As soon as practicable after the date of the

enactment of this Act, the Secretary of Defense, in consultation

with the Secretary of Homeland Security and the Administrator of General Services, shall prescribe regulations relating

to the sale of aircraft and aircraft parts under this section.

(2) CONTENTS.—The regulations shall—

(A) ensure that the sale of the aircraft and aircraft

parts is made at a fair market value, as determined by the

Secretary of Defense, and, to the extent practicable, on a

competitive basis;

(B) require a certification by the purchaser that the

aircraft and aircraft parts will be used only in accordance

with the conditions set forth in subsection (b);

(C) establish appropriate means of verifying and enforcing the use of the aircraft and aircraft parts by the

purchaser and other operators in accordance with the conditions set forth in subsection (b) or pursuant to subsection

(e); and
1161 Sec. 740 TRANSFER OF EXCESS DEFENSE PROPERTY

(D) ensure, to the maximum extent practicable, that

the Secretary of Defense consults with the Administrator

of General Services and with the heads of appropriate departments and agencies of the Federal Government regarding alternative requirements for such aircraft and aircraft parts before the sale of such aircraft and aircraft

parts under this section.

(e) ADDITIONAL TERMS AND CONDITIONS.—The Secretary of Defense may require such other terms and conditions in connection

with each sale of aircraft and aircraft parts under this section as

the Secretary considers appropriate for such sale. Such terms and

conditions shall meet the requirements of regulations prescribed

under subsection (d).

(f) REPORT.—Not later than March 31, 2006, the Secretary of

Defense shall transmit to the Committees on Armed Services and

Commerce, Science, and Transportation of the Senate and the

Committees on National Security and Transportation and Infrastructure of the House of Representatives a report on the Secretary’s exercise of authority under this section. The report shall

set forth—

(1) the number and types of aircraft sold under the authority, and the terms and conditions under which the aircraft

were sold;

(2) the persons or entities to which the aircraft were sold;

and

(3) an accounting of the current use of the aircraft sold.

(g) STATUTORY CONSTRUCTION.—

(1) AUTHORITY OF ADMINISTRATOR.—Nothing in this section

may be construed as affecting the authority of the Administrator under any other provision of law.

(2) CERTIFICATION REQUIREMENTS.—Nothing in this section

may be construed to waive, with respect to an aircraft sold

under the authority of this section, any requirement to obtain

a certificate from the Administrator to operate the aircraft for

any purpose (other than oil spill spotting, observation, and dispersant delivery) for which such a certificate is required.

(h) PROCEEDS FROM SALE.—The net proceeds of any amounts

received by the Secretary of Defense from the sale of aircraft and

aircraft parts under this section shall be covered into the general

fund of the Treasury as miscellaneous receipts.

(i) EXPIRATION OF AUTHORITY.—The authority to sell aircraft

and aircraft parts under this section expires on September 30,

2006.
1162

3. WARRANTY CLAIMS RECOVERY PILOT PROGRAM AND

FRAUD, WASTE, AND ABUSE INVESTIGATIONS

Sections 391 and 392 of the National Defense Authorization

Act for Fiscal Year 1998

(Public Law 105–85; approved Nov. 18, 1997)

SEC. 391. ø10 U.S.C. 2304 note¿ WARRANTY CLAIMS RECOVERY PILOT

PROGRAM.

(a) PILOT PROGRAM REQUIRED.—The Secretary of Defense may

carry out a pilot program to use commercial sources of services to

improve the collection of Department of Defense claims under aircraft engine warranties.

(b) CONTRACTS.—Exercising the authority provided in section

3718 of title 31, United States Code, the Secretary of Defense may

enter into contracts under the pilot program to provide for the following services:

(1) Collection services.

(2) Determination of amounts owed the Department of Defense for repair of aircraft engines for conditions covered by

warranties.

(3) Identification and location of the sources of information

that are relevant to collection of Department of Defense claims

under aircraft engine warranties, including electronic data

bases and document filing systems maintained by the Department of Defense or by the manufacturers and suppliers of the

aircraft engines.

(4) Services to define the elements necessary for an effective training program to enhance and improve the performance

of Department of Defense personnel in collecting and organizing documents and other information that are necessary for

efficient filing, processing, and collection of Department of Defense claims under aircraft engine warranties.

(c) CONTRACTOR FEE.—Under the authority provided in section

3718(d) of title 31, United States Code, a contract entered into

under the pilot program shall provide for the contractor to be paid,

out of the amount recovered by the contractor under the program,

such percentages of the amount recovered as the Secretary of Defense determines appropriate.

(d) RETENTION OF RECOVERED FUNDS.—Subject to any obligation to pay a fee under subsection (c), any amount collected for the

Department of Defense under the pilot program for a repair of an

aircraft engine for a condition covered by a warranty shall be credited to an appropriation available for repair of aircraft engines for

the fiscal year in which collected and shall be available for the
1163 Sec. 392 WARRANTY CLAIMS RECOVERY PILOT PROGRAM

same purposes and same period as the appropriation to which credited.

(e) REGULATIONS.—The Secretary of Defense shall prescribe

regulations to carry out this section.

(f) TERMINATION OF AUTHORITY.—The pilot program shall terminate on September 30, 2004, and contracts entered into under

this section shall terminate not later than that date.

SEC. 392. ø10 U.S.C. 113 note¿ PROGRAM TO INVESTIGATE FRAUD,

WASTE, AND ABUSE WITHIN DEPARTMENT OF DEFENSE.

The Secretary of Defense shall maintain a specific coordinated

program for the investigation of evidence of fraud, waste, and

abuse within the Department of Defense, particularly fraud, waste,

and abuse regarding finance and accounting matters and any

fraud, waste, and abuse occurring in connection with overpayments

made to vendors by the Department of Defense, including overpayments identified under section 354 of the National Defense Authorization Act for Fiscal Year 1996 (Public Law 104–106; 10 U.S.C.

2461 note).
1164

1Subchapter II of this chapter expired May 31, 2003, in accordance with section 3536, except

with respect to the Department of Defense. See footnote to section 3536. Pursuant to section

3549, subchapter II does not apply while subchapter III of this chapter is in effect. 2Section 1052(a) of Public Law 107–314 (116 Stat. 2648) amended section 3536 in its entirety

without making a conforming amendment to the item in the table of sections.

4. GOVERNMENT INFORMATION SECURITY REFORM

(Subchapters II and III of chapter 35 of title 44, United States Code)

CHAPTER 35—COORDINATION OF FEDERAL

INFORMATION POLICY 1

SUBCHAPTER II—INFORMATION SECURITY

Sec.

3531. Purposes.

3532. Definitions.

3533. Authority and functions of the Director.

3534. Federal agency responsibilities.

3535. Annual independent evaluation.

3536. National security systems. 2

3537. Authorization of appropriations.

3538. Effect on existing law.

SUBCHAPTER III—INFORMATION SECURITY

Sec.

3541. Purposes.

3542. Definitions.

3543. Authority and functions of the Director.

3544. Federal agency responsibilities.

3545. Annual independent evaluation.

3546. Federal information security incident center.

3547. National security systems.

3548. Authorization of appropriations.

3549. Effect on existing law.

SUBCHAPTER II—INFORMATION SECURITY

§ 3531. Purposes

The purposes of this subchapter are to—

(1) provide a comprehensive framework for ensuring the

effectiveness of information security controls over information

resources that support Federal operations and assets;

(2) recognize the highly networked nature of the current

Federal computing environment and provide effective governmentwide management and oversight of the related information security risks, including coordination of information security efforts throughout the civilian, national security, and law

enforcement communities;

(3) provide for development and maintenance of minimum

controls required to protect Federal information and information systems;

(4) provide a mechanism for improved oversight of Federal

agency information security programs;
1165 Sec. 3532 GOVERNMENT INFORMATION SECURITY REFORM

(5) acknowledge that commercially developed information

security products offer advanced, dynamic, robust, and effective

information security solutions, reflecting market solutions for

the protection of critical information infrastructures important

to the national defense and economic security of the nation

that are designed, built, and operated by the private sector;

and

(6) recognize that the selection of specific technical hardware and software information security solutions should be left

to individual agencies from among commercially developed

products.

§ 3532. Definitions

(a) IN GENERAL.—Except as provided under subsection (b), the

definitions under section 3502 shall apply to this subchapter.

(b) ADDITIONAL DEFINITIONS.—As used in this subchapter—

(1) the term ‘‘information security’’ means protecting information and information systems from unauthorized access,

use, disclosure, disruption, modification, or destruction in order

to provide—

(A) integrity, which means guarding against improper

information modification or destruction, and includes ensuring information nonrepudiation and authenticity;

(B) confidentiality, which means preserving authorized

restrictions on access and disclosure, including means for

protecting personal privacy and proprietary information;

(C) availability, which means ensuring timely and reliable access to and use of information; and

(D) authentication, which means utilizing digital credentials to assure the identity of users and validate their

access;

(2) the term ‘‘national security system’’ means any information system (including any telecommunications system)

used or operated by an agency or by a contractor of an agency,

or other organization on behalf of an agency, the function, operation, or use of which—

(A) involves intelligence activities;

(B) involves cryptologic activities related to national

security;

(C) involves command and control of military forces;

(D) involves equipment that is an integral part of a

weapon or weapons system; or

(E) is critical to the direct fulfillment of military or intelligence missions provided that this definition does not

apply to a system that is used for routine administrative

and business applications (including payroll, finance, logistics, and personnel management applications);

(3) the term ‘‘information technology’’ has the meaning

given that term in section 11101 of title 40; and

(4) the term ‘‘information system’’ means any equipment or

interconnected system or subsystems of equipment that is used

in the automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange,
Sec. 3533 GOVERNMENT INFORMATION SECURITY REFORM 1166

transmission, or reception of data or information, and

includes—

(A) computers and computer networks;

(B) ancillary equipment;

(C) software, firmware, and related procedures;

(D) services, including support services; and

(E) related resources.

§ 3533. Authority and functions of the Director

(a) The Director shall oversee agency information security policies and practices, by—

(1) promulgating information security standards under section 11331 of title 40;

(2) overseeing the implementation of policies, principles,

standards, and guidelines on information security;

(3) requiring agencies, consistent with the standards promulgated under such section 11331 and the requirements of

this subchapter, to identify and provide information security

protections commensurate with the risk and magnitude of the

harm resulting from the unauthorized access, use, disclosure,

disruption, modification, or destruction of—

(A) information collected or maintained by or on behalf

of an agency; or

(B) information systems used or operated by an agency

or by a contractor of an agency or other organization on

behalf of an agency;

(4) coordinating the development of standards and guidelines under section 20 of the National Institute of Standards

and Technology Act (15 U.S.C. 278g–3) with agencies and offices operating or exercising control of national security systems (including the National Security Agency) to assure, to the

maximum extent feasible, that such standards and guidelines

are complementary with standards and guidelines developed

for national security systems;

(5) overseeing agency compliance with the requirements of

this subchapter, including through any authorized action under

section 11303(b)(5) of title 40, to enforce accountability for compliance with such requirements;

(6) reviewing at least annually, and approving or disapproving, agency information security programs required

under section 3534(b);

(7) coordinating information security policies and procedures with related information resources management policies

and procedures; and

(8) reporting to Congress no later than March 1 of each

year on agency compliance with the requirements of this subchapter, including—

(A) a summary of the findings of evaluations required

by section 3535;

(B) significant deficiencies in agency information security practices;

(C) planned remedial action to address such deficiencies; and
1167 Sec. 3534 GOVERNMENT INFORMATION SECURITY REFORM

(D) a summary of, and the views of the Director on,

the report prepared by the National Institute of Standards

and Technology under section 20(d)(9) of the National Institute of Standards and Technology Act (15 U.S.C. 278g–

3).

(b) Except for the authorities described in paragraphs (4) and

(7) of subsection (a), the authorities of the Director under this section shall not apply to national security systems.

§ 3534. Federal agency responsibilities

(a) The head of each agency shall—

(1) be responsible for—

(A) providing information security protections commensurate with the risk and magnitude of the harm resulting from unauthorized access, use, disclosure, disruption, modification, or destruction of—

(i) information collected or maintained by or on

behalf of the agency; and

(ii) information systems used or operated by an

agency or by a contractor of an agency or other organization on behalf of an agency;

(B) complying with the requirements of this subchapter and related policies, procedures, standards, and

guidelines, including—

(i) information security standards promulgated by

the Director under section 11331 of title 40; and

(ii) information security standards and guidelines

for national security systems issued in accordance

with law and as directed by the President; and

(C) ensuring that information security management

processes are integrated with agency strategic and operational planning processes;

(2) ensure that senior agency officials provide information

security for the information and information systems that support the operations and assets under their control, including

through—

(A) assessing the risk and magnitude of the harm that

could result from the unauthorized access, use, disclosure,

disruption, modification, or destruction of such information

or information systems;

(B) determining the levels of information security appropriate to protect such information and information systems in accordance with standards promulgated under section 11331 of title 40 for information security classifications and related requirements;

(C) implementing policies and procedures to cost-effectively reduce risks to an acceptable level; and

(D) periodically testing and evaluating information security controls and techniques to ensure that they are effectively implemented;

(3) delegate to the agency Chief Information Officer established under section 3506 (or comparable official in an agency

not covered by such section) the authority to ensure compliance
Sec. 3534 GOVERNMENT INFORMATION SECURITY REFORM 1168

with the requirements imposed on the agency under this subchapter, including—

(A) designating a senior agency information security

officer who shall—

(i) carry out the Chief Information Officer’s responsibilities under this section;

(ii) possess professional qualifications, including

training and experience, required to administer the

functions described under this section;

(iii) have information security duties as that official’s primary duty; and

(iv) head an office with the mission and resources

to assist in ensuring agency compliance with this section;

(B) developing and maintaining an agencywide information security program as required by subsection (b);

(C) developing and maintaining information security

policies, procedures, and control techniques to address all

applicable requirements, including those issued under section 3533 of this title, and section 11331 of title 40;

(D) training and overseeing personnel with significant

responsibilities for information security with respect to

such responsibilities; and

(E) assisting senior agency officials concerning their

responsibilities under paragraph (2);

(4) ensure that the agency has trained personnel sufficient

to assist the agency in complying with the requirements of this

subchapter and related policies, procedures, standards, and

guidelines; and

(5) ensure that the agency Chief Information Officer, in coordination with other senior agency officials, reports annually

to the agency head on the effectiveness of the agency information security program, including progress of remedial actions.

(b) Each agency shall develop, document, and implement an

agencywide information security program, approved by the Director

under section 3533(a)(5), to provide information security for the information and information systems that support the operations and

assets of the agency, including those provided or managed by another agency, contractor, or other source, that includes—

(1) periodic assessments of the risk and magnitude of the

harm that could result from the unauthorized access, use, disclosure, disruption, modification, or destruction of information

and information systems that support the operations and assets of the agency;

(2) policies and procedures that—

(A) are based on the risk assessments required by

paragraph (1);

(B) cost-effectively reduce information security risks to

an acceptable level;

(C) ensure that information security is addressed

throughout the life cycle of each agency information system; and

(D) ensure compliance with—

(i) the requirements of this subchapter;
1169 Sec. 3534 GOVERNMENT INFORMATION SECURITY REFORM

(ii) policies and procedures as may be prescribed

by the Director, and information security standards

promulgated under section 11331 of title 40;

(iii) minimally acceptable system configuration requirements, as determined by the agency; and

(iv) any other applicable requirements, including

standards and guidelines for national security systems

issued in accordance with law and as directed by the

President;

(3) subordinate plans for providing adequate information

security for networks, facilities, and systems or groups of information systems, as appropriate;

(4) security awareness training to inform personnel, including contractors and other users of information systems

that support the operations and assets of the agency, of—

(A) information security risks associated with their activities; and

(B) their responsibilities in complying with agency

policies and procedures designed to reduce these risks;

(5) periodic testing and evaluation of the effectiveness of

information security policies, procedures, and practices, to be

performed with a frequency depending on risk, but no less

than annually, of which such testing—

(A) shall include testing of management, operational,

and technical controls of every information system identified in the inventory required under section 3505(c); and

(B) may include testing relied on in a evaluation under

section 3535;

(6) a process for planning, implementing, evaluating, and

documenting remedial action to address any deficiencies in the

information security policies, procedures, and practices of the

agency;

(7) procedures for detecting, reporting, and responding to

security incidents, including—

(A) mitigating risks associated with such incidents before substantial damage is done; and

(B) notifying and consulting with, as appropriate—

(i) law enforcement agencies and relevant Offices

of Inspector General;

(ii) an office designated by the President for any

incident involving a national security system; and

(iii) any other agency or office, in accordance with

law or as directed by the President; and

(8) plans and procedures to ensure continuity of operations

for information systems that support the operations and assets

of the agency.

(c) Each agency shall—

(1) report annually to the Director, the Committees on

Government Reform and Science of the House of Representatives, the Committees on Governmental Affairs and Commerce,

Science, and Transportation of the Senate, the appropriate authorization and appropriations committees of Congress, and

the Comptroller General on the adequacy and effectiveness of

information security policies, procedures, and practices, and
Sec. 3535 GOVERNMENT INFORMATION SECURITY REFORM 1170

compliance with the requirements of this subchapter, including

compliance with each requirement of subsection (b);

(2) address the adequacy and effectiveness of information

security policies, procedures, and practices in plans and reports

relating to—

(A) annual agency budgets;

(B) information resources management under subchapter 1 of this chapter;

(C) information technology management under subtitle

III of title 40;

(D) program performance under sections 1105 and

1115 through 1119 of title 31, and sections 2801 and 2805

of title 39;

(E) financial management under chapter 9 of title 31,

and the Chief Financial Officers Act of 1990 (31 U.S.C. 501

note; Public Law 101–576) (and the amendments made by

that Act);

(F) financial management systems under the Federal

Financial Management Improvement Act (31 U.S.C. 3512

note); and

(G) internal accounting and administrative controls

under section 3512 of title 31, United States Code, (known

as the ‘‘Federal Managers Financial Integrity Act’’); and

(3) report any significant deficiency in a policy, procedure,

or practice identified under paragraph (1) or (2)—

(A) as a material weakness in reporting under section

3512 of title 31; and

(B) if relating to financial management systems, as an

instance of a lack of substantial compliance under the Federal Financial Management Improvement Act (31 U.S.C.

3512 note).

(d)(1) In addition to the requirements of subsection (c), each

agency, in consultation with the Director, shall include as part of

the performance plan required under section 1115 of title 31 a description of—

(A) the time periods; and

(B) the resources, including budget, staffing, and training,

that are necessary to implement the program required under subsection (b).

(2) The description under paragraph (1) shall be based on the

risk assessments required under subsection (b)(2)(1).

(e) Each agency shall provide the public with timely notice and

opportunities for comment on proposed information security policies and procedures to the extent that such policies and procedures

affect communication with the public.

§ 3535. Annual independent evaluation

(a)(1) Each year each agency shall have performed an independent evaluation of the information security program and practices of that agency to determine the effectiveness of such program

and practices.

(2) Each evaluation by an agency under this section shall

include—
1171 Sec. 3535 GOVERNMENT INFORMATION SECURITY REFORM

(A) testing of the effectiveness of information security policies, procedures, and practices of a representative subset of the

agency’s information systems;

(B) an assessment (made on the basis of the results of the

testing) of compliance with—

(i) the requirements of this subchapter; and

(ii) related information security policies, procedures,

standards, and guidelines; and

(C) separate presentations, as appropriate, regarding information security relating to national security systems.

(b) Subject to subsection (c)—

(1) for each agency with an Inspector General appointed

under the Inspector General Act of 1978, the annual evaluation

required by this section shall be performed by the Inspector

General or by an independent external auditor, as determined

by the Inspector General of the agency; and

(2) for each agency to which paragraph (1) does not apply,

the head of the agency shall engage an independent external

auditor to perform the evaluation.

(c) For each agency operating or exercising control of a national

security system, that portion of the evaluation required by this section directly relating to a national security system shall be

performed—

(1) only by an entity designated by the agency head; and

(2) in such a manner as to ensure appropriate protection

for information associated with any information security vulnerability in such system commensurate with the risk and in

accordance with all applicable laws.

(d) The evaluation required by this section—

(1) shall be performed in accordance with generally accepted government auditing standards; and

(2) may be based in whole or in part on an audit, evaluation, or report relating to programs or practices of the applicable agency.

(e) Each year, not later than such date established by the Director, the head of each agency shall submit to the Director the results of the evaluation required under this section.

(f) Agencies and evaluators shall take appropriate steps to ensure the protection of information which, if disclosed, may adversely affect information security. Such protections shall be commensurate with the risk and comply with all applicable laws and

regulations.

(g)(1) The Director shall summarize the results of the evaluations conducted under this section in the report to Congress required under section 3533(a)(8).

(2) The Director’s report to Congress under this subsection

shall summarize information regarding information security relating to national security systems in such a manner as to ensure appropriate protection for information associated with any information security vulnerability in such system commensurate with the

risk and in accordance with all applicable laws.

(3) Evaluations and any other descriptions of information systems under the authority and control of the Director of Central Intelligence or of National Foreign Intelligence Programs systems
Sec. 3536 GOVERNMENT INFORMATION SECURITY REFORM 1172

1Section 2224a of title 10, United States Code, provides that, notwithstanding section 3536

of title 44, United States Code, subchapter II of chapter 35 of title 44, United States Code, shall

continue to apply to the Department of Defense through September 30, 2004.

under the authority and control of the Secretary of Defense shall

be made available to Congress only through the appropriate oversight committees of Congress, in accordance with applicable laws.

(h) The Comptroller General shall periodically evaluate and report to Congress on—

(1) the adequacy and effectiveness of agency information

security policies and practices; and

(2) implementation of the requirements of this subchapter.

§ 3536. Expiration

This subchapter shall not be in effect after May 31, 2003. 1

§ 3537. Authorization of appropriations

There are authorized to be appropriated to carry out the provisions of this subchapter such sums as may be necessary for each

of fiscal years 2003 through 2007.

§ 3538. Effect on existing law

Nothing in this subchapter, section 11331 of title 40, or section

20 of the National Standards and Technology Act (15 U.S.C. 278g–

3) may be construed as affecting the authority of the President, the

Office of Management and Budget or the Director thereof, the National Institute of Standards and Technology, or the head of any

agency, with respect to the authorized use or disclosure of information, including with regard to the protection of personal privacy

under section 552a of title 5, the disclosure of information under

section 552 of title 5, the management and disposition of records

under chapters 29, 31, or 33 of title 44, the management of information resources under subchapter I of chapter 35 of this title, or

the disclosure of information to Congress or the Comptroller General of the United States.

SUBCHAPTER III—INFORMATION SECURITY

§ 3541. Purposes

The purposes of this subchapter are to—

(1) provide a comprehensive framework for ensuring the

effectiveness of information security controls over information

resources that support Federal operations and assets;

(2) recognize the highly networked nature of the current

Federal computing environment and provide effective governmentwide management and oversight of the related information security risks, including coordination of information security efforts throughout the civilian, national security, and law

enforcement communities;

(3) provide for development and maintenance of minimum

controls required to protect Federal information and information systems;

(4) provide a mechanism for improved oversight of Federal

agency information security programs;
1173 Sec. 3538 GOVERNMENT INFORMATION SECURITY REFORM

(5) acknowledge that commercially developed information

security products offer advanced, dynamic, robust, and effective

information security solutions, reflecting market solutions for

the protection of critical information infrastructures important

to the national defense and economic security of the nation

that are designed, built, and operated by the private sector;

and

(6) recognize that the selection of specific technical hardware and software information security solutions should be left

to individual agencies from among commercially developed

products.

§ 3542. Definitions

(a) IN GENERAL.—Except as provided under subsection (b), the

definitions under section 3502 shall apply to this subchapter.

(b) ADDITIONAL DEFINITIONS.—As used in this subchapter:

(1) The term ‘‘information security’’ means protecting information and information systems from unauthorized access,

use, disclosure, disruption, modification, or destruction in order

to provide—

(A) integrity, which means guarding against improper

information modification or destruction, and includes ensuring information nonrepudiation and authenticity;

(B) confidentiality, which means preserving authorized

restrictions on access and disclosure, including means for

protecting personal privacy and proprietary information;

and

(C) availability, which means ensuring timely and reliable access to and use of information.

(2)(A) The term ‘‘national security system’’ means any information system (including any telecommunications system)

used or operated by an agency or by a contractor of an agency,

or other organization on behalf of an agency—

(i) the function, operation, or use of which—

(I) involves intelligence activities;

(II) involves cryptologic activities related to national security;

(III) involves command and control of military

forces;

(IV) involves equipment that is an integral part of

a weapon or weapons system; or

(V) subject to subparagraph (B), is critical to the

direct fulfillment of military or intelligence missions;

or

(ii) is protected at all times by procedures established

for information that have been specifically authorized

under criteria established by an Executive order or an Act

of Congress to be kept classified in the interest of national

defense or foreign policy.

(B) Subparagraph (A)(i)(V) does not include a system that

is to be used for routine administrative and business applications (including payroll, finance, logistics, and personnel management applications).
Sec. 3538 GOVERNMENT INFORMATION SECURITY REFORM 1174

(3) The term ‘‘information technology’’ has the meaning

given that term in section 11101 of title 40.

§ 3543. Authority and functions of the Director

(a) IN GENERAL.—The Director shall oversee agency information security policies and practices, including—

(1) developing and overseeing the implementation of policies, principles, standards, and guidelines on information security, including through ensuring timely agency adoption of and

compliance with standards promulgated under section 11331 of

title 40;

(2) requiring agencies, consistent with the standards promulgated under such section 11331 and the requirements of

this subchapter, to identify and provide information security

protections commensurate with the risk and magnitude of the

harm resulting from the unauthorized access, use, disclosure,

disruption, modification, or destruction of—

(A) information collected or maintained by or on behalf

of an agency; or

(B) information systems used or operated by an agency

or by a contractor of an agency or other organization on

behalf of an agency;

(3) coordinating the development of standards and guidelines under section 20 of the National Institute of Standards

and Technology Act (15 U.S.C. 278g–3) with agencies and offices operating or exercising control of national security systems (including the National Security Agency) to assure, to the

maximum extent feasible, that such standards and guidelines

are complementary with standards and guidelines developed

for national security systems;

(4) overseeing agency compliance with the requirements of

this subchapter, including through any authorized action under

section 11303 of title 40, to enforce accountability for compliance with such requirements;

(5) reviewing at least annually, and approving or disapproving, agency information security programs required

under section 3544(b);

(6) coordinating information security policies and procedures with related information resources management policies

and procedures;

(7) overseeing the operation of the Federal information security incident center required under section 3546; and

(8) reporting to Congress no later than March 1 of each

year on agency compliance with the requirements of this subchapter, including—

(A) a summary of the findings of evaluations required

by section 3545;

(B) an assessment of the development, promulgation,

and adoption of, and compliance with, standards developed

under section 20 of the National Institute of Standards

and Technology Act (15 U.S.C. 278g-3) and promulgated

under section 11331 of title 40;

(C) significant deficiencies in agency information security practices;
1175 Sec. 3538 GOVERNMENT INFORMATION SECURITY REFORM

(D) planned remedial action to address such deficiencies; and

(E) a summary of, and the views of the Director on,

the report prepared by the National Institute of Standards

and Technology under section 20(d)(10) of the National Institute of Standards and Technology Act (15 U.S.C. 278g–

3).

(b) NATIONAL SECURITY SYSTEMS.—Except for the authorities

described in paragraphs (4) and (8) of subsection (a), the authorities of the Director under this section shall not apply to national

security systems.

(c) DEPARTMENT OF DEFENSE AND CENTRAL INTELLIGENCE

AGENCY SYSTEMS.—(1) The authorities of the Director described in

paragraphs (1) and (2) of subsection (a) shall be delegated to the

Secretary of Defense in the case of systems described in paragraph

(2) and to the Director of Central Intelligence in the case of systems described in paragraph (3).

(2) The systems described in this paragraph are systems that

are operated by the Department of Defense, a contractor of the Department of Defense, or another entity on behalf of the Department

of Defense that processes any information the unauthorized access,

use, disclosure, disruption, modification, or destruction of which

would have a debilitating impact on the mission of the Department

of Defense.

(3) The systems described in this paragraph are systems that

are operated by the Central Intelligence Agency, a contractor of the

Central Intelligence Agency, or another entity on behalf of the Central Intelligence Agency that processes any information the unauthorized access, use, disclosure, disruption, modification, or destruction of which would have a debilitating impact on the mission

of the Central Intelligence Agency.

§ 3544. Federal agency responsibilities

(a) IN GENERAL.—The head of each agency shall—

(1) be responsible for—

(A) providing information security protections commensurate with the risk and magnitude of the harm resulting from unauthorized access, use, disclosure, disruption, modification, or destruction of—

(i) information collected or maintained by or on

behalf of the agency; and

(ii) information systems used or operated by an

agency or by a contractor of an agency or other organization on behalf of an agency;

(B) complying with the requirements of this subchapter and related policies, procedures, standards, and

guidelines, including—

(i) information security standards promulgated

under section 11331 of title 40; and

(ii) information security standards and guidelines

for national security systems issued in accordance

with law and as directed by the President; and
Sec. 3538 GOVERNMENT INFORMATION SECURITY REFORM 1176

(C) ensuring that information security management

processes are integrated with agency strategic and operational planning processes;

(2) ensure that senior agency officials provide information

security for the information and information systems that support the operations and assets under their control, including

through—

(A) assessing the risk and magnitude of the harm that

could result from the unauthorized access, use, disclosure,

disruption, modification, or destruction of such information

or information systems;

(B) determining the levels of information security appropriate to protect such information and information systems in accordance with standards promulgated under section 11331 of title 40, for information security classifications and related requirements;

(C) implementing policies and procedures to cost-effectively reduce risks to an acceptable level; and

(D) periodically testing and evaluating information security controls and techniques to ensure that they are effectively implemented;

(3) delegate to the agency Chief Information Officer established under section 3506 (or comparable official in an agency

not covered by such section) the authority to ensure compliance

with the requirements imposed on the agency under this subchapter, including—

(A) designating a senior agency information security

officer who shall—

(i) carry out the Chief Information Officer’s responsibilities under this section;

(ii) possess professional qualifications, including

training and experience, required to administer the

functions described under this section;

(iii) have information security duties as that official’s primary duty; and

(iv) head an office with the mission and resources

to assist in ensuring agency compliance with this section;

(B) developing and maintaining an agencywide information security program as required by subsection (b);

(C) developing and maintaining information security

policies, procedures, and control techniques to address all

applicable requirements, including those issued under section 3543 of this title, and section 11331 of title 40;

(D) training and overseeing personnel with significant

responsibilities for information security with respect to

such responsibilities; and

(E) assisting senior agency officials concerning their

responsibilities under paragraph (2);

(4) ensure that the agency has trained personnel sufficient

to assist the agency in complying with the requirements of this

subchapter and related policies, procedures, standards, and

guidelines; and
1177 Sec. 3538 GOVERNMENT INFORMATION SECURITY REFORM

(5) ensure that the agency Chief Information Officer, in coordination with other senior agency officials, reports annually

to the agency head on the effectiveness of the agency information security program, including progress of remedial actions.

(b) AGENCY PROGRAM.—Each agency shall develop, document,

and implement an agencywide information security program, approved by the Director under section 3543(a)(5), to provide information security for the information and information systems that support the operations and assets of the agency, including those provided or managed by another agency, contractor, or other source,

that includes—

(1) periodic assessments of the risk and magnitude of the

harm that could result from the unauthorized access, use, disclosure, disruption, modification, or destruction of information

and information systems that support the operations and assets of the agency;

(2) policies and procedures that—

(A) are based on the risk assessments required by

paragraph (1);

(B) cost-effectively reduce information security risks to

an acceptable level;

(C) ensure that information security is addressed

throughout the life cycle of each agency information system; and

(D) ensure compliance with—

(i) the requirements of this subchapter;

(ii) policies and procedures as may be prescribed

by the Director, and information security standards

promulgated under section 11331 of title 40;

(iii) minimally acceptable system configuration requirements, as determined by the agency; and

(iv) any other applicable requirements, including

standards and guidelines for national security systems

issued in accordance with law and as directed by the

President;

(3) subordinate plans for providing adequate information

security for networks, facilities, and systems or groups of information systems, as appropriate;

(4) security awareness training to inform personnel, including contractors and other users of information systems

that support the operations and assets of the agency, of—

(A) information security risks associated with their activities; and

(B) their responsibilities in complying with agency

policies and procedures designed to reduce these risks;

(5) periodic testing and evaluation of the effectiveness of

information security policies, procedures, and practices, to be

performed with a frequency depending on risk, but no less

than annually, of which such testing—

(A) shall include testing of management, operational,

and technical controls of every information system identified in the inventory required under section 3505(c); and

(B) may include testing relied on in a evaluation under

section 3545;
Sec. 3538 GOVERNMENT INFORMATION SECURITY REFORM 1178

(6) a process for planning, implementing, evaluating, and

documenting remedial action to address any deficiencies in the

information security policies, procedures, and practices of the

agency;

(7) procedures for detecting, reporting, and responding to

security incidents, consistent with standards and guidelines

issued pursuant to section 3546(b), including—

(A) mitigating risks associated with such incidents before substantial damage is done;

(B) notifying and consulting with the Federal information security incident center referred to in section 3546;

and

(C) notifying and consulting with, as appropriate—

(i) law enforcement agencies and relevant Offices

of Inspector General;

(ii) an office designated by the President for any

incident involving a national security system; and

(iii) any other agency or office, in accordance with

law or as directed by the President; and

(8) plans and procedures to ensure continuity of operations

for information systems that support the operations and assets

of the agency.

(c) AGENCY REPORTING.—Each agency shall—

(1) report annually to the Director, the Committees on

Government Reform and Science of the House of Representatives, the Committees on Governmental Affairs and Commerce,

Science, and Transportation of the Senate, the appropriate authorization and appropriations committees of Congress, and

the Comptroller General on the adequacy and effectiveness of

information security policies, procedures, and practices, and

compliance with the requirements of this subchapter, including

compliance with each requirement of subsection (b);

(2) address the adequacy and effectiveness of information

security policies, procedures, and practices in plans and reports

relating to—

(A) annual agency budgets;

(B) information resources management under subchapter 1 of this chapter;

(C) information technology management under subtitle

III of title 40;

(D) program performance under sections 1105 and

1115 through 1119 of title 31, and sections 2801 and 2805

of title 39;

(E) financial management under chapter 9 of title 31,

and the Chief Financial Officers Act of 1990 (31 U.S.C. 501

note; Public Law 101–576) (and the amendments made by

that Act);

(F) financial management systems under the Federal

Financial Management Improvement Act (31 U.S.C. 3512

note); and

(G) internal accounting and administrative controls

under section 3512 of title 31, (known as the ‘‘Federal

Managers Financial Integrity Act’’); and
1179 Sec. 3538 GOVERNMENT INFORMATION SECURITY REFORM

(3) report any significant deficiency in a policy, procedure,

or practice identified under paragraph (1) or (2)—

(A) as a material weakness in reporting under section

3512 of title 31; and

(B) if relating to financial management systems, as an

instance of a lack of substantial compliance under the Federal Financial Management Improvement Act (31 U.S.C.

3512 note).

(d) PERFORMANCE PLAN.—(1) In addition to the requirements

of subsection (c), each agency, in consultation with the Director,

shall include as part of the performance plan required under section 1115 of title 31 a description of—

(A) the time periods, and

(B) the resources, including budget, staffing, and training,

that are necessary to implement the program required under subsection (b).

(2) The description under paragraph (1) shall be based on the

risk assessments required under subsection (b)(2)(1).

(e) PUBLIC NOTICE AND COMMENT.—Each agency shall provide

the public with timely notice and opportunities for comment on proposed information security policies and procedures to the extent

that such policies and procedures affect communication with the

public.

§ 3545. Annual independent evaluation

(a) IN GENERAL.—(1) Each year each agency shall have performed an independent evaluation of the information security program and practices of that agency to determine the effectiveness of

such program and practices.

(2) Each evaluation under this section shall include—

(A) testing of the effectiveness of information security policies, procedures, and practices of a representative subset of the

agency’s information systems;

(B) an assessment (made on the basis of the results of the

testing) of compliance with—

(i) the requirements of this subchapter; and

(ii) related information security policies, procedures,

standards, and guidelines; and

(C) separate presentations, as appropriate, regarding information security relating to national security systems.

(b) INDEPENDENT AUDITOR.—Subject to subsection (c)—

(1) for each agency with an Inspector General appointed

under the Inspector General Act of 1978, the annual evaluation

required by this section shall be performed by the Inspector

General or by an independent external auditor, as determined

by the Inspector General of the agency; and

(2) for each agency to which paragraph (1) does not apply,

the head of the agency shall engage an independent external

auditor to perform the evaluation.

(c) NATIONAL SECURITY SYSTEMS.—For each agency operating

or exercising control of a national security system, that portion of

the evaluation required by this section directly relating to a national security system shall be performed—

(1) only by an entity designated by the agency head; and
Sec. 3538 GOVERNMENT INFORMATION SECURITY REFORM 1180

(2) in such a manner as to ensure appropriate protection

for information associated with any information security vulnerability in such system commensurate with the risk and in

accordance with all applicable laws.

(d) EXISTING EVALUATIONS.—The evaluation required by this

section may be based in whole or in part on an audit, evaluation,

or report relating to programs or practices of the applicable agency.

(e) AGENCY REPORTING.—(1) Each year, not later than such

date established by the Director, the head of each agency shall submit to the Director the results of the evaluation required under this

section.

(2) To the extent an evaluation required under this section directly relates to a national security system, the evaluation results

submitted to the Director shall contain only a summary and assessment of that portion of the evaluation directly relating to a national security system.

(f) PROTECTION OF INFORMATION.—Agencies and evaluators

shall take appropriate steps to ensure the protection of information

which, if disclosed, may adversely affect information security. Such

protections shall be commensurate with the risk and comply with

all applicable laws and regulations.

(g) OMB REPORTS TO CONGRESS.—(1) The Director shall summarize the results of the evaluations conducted under this section

in the report to Congress required under section 3543(a)(8).

(2) The Director’s report to Congress under this subsection

shall summarize information regarding information security relating to national security systems in such a manner as to ensure appropriate protection for information associated with any information security vulnerability in such system commensurate with the

risk and in accordance with all applicable laws.

(3) Evaluations and any other descriptions of information systems under the authority and control of the Director of Central Intelligence or of National Foreign Intelligence Programs systems

under the authority and control of the Secretary of Defense shall

be made available to Congress only through the appropriate oversight committees of Congress, in accordance with applicable laws.

(h) COMPTROLLER GENERAL.—The Comptroller General shall

periodically evaluate and report to Congress on—

(1) the adequacy and effectiveness of agency information

security policies and practices; and

(2) implementation of the requirements of this subchapter.

§ 3546. Federal information security incident center

(a) IN GENERAL.—The Director shall ensure the operation of a

central Federal information security incident center to—

(1) provide timely technical assistance to operators of

agency information systems regarding security incidents, including guidance on detecting and handling information security incidents;

(2) compile and analyze information about incidents that

threaten information security;

(3) inform operators of agency information systems about

current and potential information security threats, and

vulnerabilities; and
1181 Sec. 3538 GOVERNMENT INFORMATION SECURITY REFORM

(4) consult with the National Institute of Standards and

Technology, agencies or offices operating or exercising control

of national security systems (including the National Security

Agency), and such other agencies or offices in accordance with

law and as directed by the President regarding information security incidents and related matters.

(b) NATIONAL SECURITY SYSTEMS.—Each agency operating or

exercising control of a national security system shall share information about information security incidents, threats, and

vulnerabilities with the Federal information security incident center to the extent consistent with standards and guidelines for national security systems, issued in accordance with law and as directed by the President.

§ 3547. National security systems

The head of each agency operating or exercising control of a

national security system shall be responsible for ensuring that the

agency—

(1) provides information security protections commensurate with the risk and magnitude of the harm resulting from

the unauthorized access, use, disclosure, disruption, modification, or destruction of the information contained in such system;

(2) implements information security policies and practices

as required by standards and guidelines for national security

systems, issued in accordance with law and as directed by the

President; and

(3) complies with the requirements of this subchapter.

§ 3548. Authorization of appropriations

There are authorized to be appropriated to carry out the provisions of this subchapter such sums as may be necessary for each

of fiscal years 2003 through 2007.

§ 3549. Effect on existing law

Nothing in this subchapter, section 11331 of title 40, or section

20 of the National Standards and Technology Act (15 U.S.C. 278g–

3) may be construed as affecting the authority of the President, the

Office of Management and Budget or the Director thereof, the National Institute of Standards and Technology, or the head of any

agency, with respect to the authorized use or disclosure of information, including with regard to the protection of personal privacy

under section 552a of title 5, the disclosure of information under

section 552 of title 5, the management and disposition of records

under chapters 29, 31, or 33 of title 44, the management of information resources under subchapter I of chapter 35 of this title, or

the disclosure of information to the Congress or the Comptroller

General of the United States. While this subchapter is in effect,

subchapter II of this chapter shall not apply.

1183

1Section 8118 of the Department of Defense Appropriations Act, 2003 (Public Law 107–248;

116 Stat. 1565), provides as follows:

SEC. 8118. (a) LIMITATION ON ADDITIONAL NMCI CONTRACT WORK STATIONS.—Notwithstanding section 814 of the Floyd D. Spence National Defense Authorization Act for Fiscal Year

2001 (as enacted into law by Public Law 106–398; 114 Stat. 1654A–215) or any other provision

of law, the total number of work stations provided under the Navy-Marine Corps Intranet contract (as defined in subsection (j) of such section 814) may not exceed 160,000 work stations

until the Under Secretary of Defense for Acquisition, Technology, and Logistics and the Chief

Information Officer of the Department of Defense certify to the congressional defense committees that all of the conditions specified in subsection (b) have been satisfied.

(b) CONDITIONS.—The conditions referred to in subsection (a) are the following:

(1) The Commander of the Navy Operational Test and Evaluation Force conducts an operational assessment of the work stations that have been fully transitioned to the Navy-Marine Corps Intranet, as defined in the Test and Evaluation Strategy Plan for the Navy-Marine Corps Intranet approved on September 4, 2002.

(2) The results of the assessment are submitted to the Under Secretary of Defense for

Acquisition, Technology, and Logistics and the Chief Information Officer of the Department

of Defense, and they determine that the results of the assessment are acceptable.

5. NAVY-MARINE CORPS INTRANET

Section 814 of the Floyd D. Spence National Defense

Authorization Act for Fiscal Year 2001

(as enacted into law by Public Law 106–398; approved Oct. 30, 2000)

SEC. 814. NAVY-MARINE CORPS INTRANET. 1

(a) LIMITATION.—None of the funds authorized to be appropriated for the Department of the Navy may be obligated or expended to carry out a Navy-Marine Corps Intranet contract

before—

(1) the Comptroller of the Department of Defense and the

Director of the Office of Management and Budget—

(A) have reviewed—

(i) the Report to Congress on the Navy-Marine

Corps Intranet submitted by the Department of the

Navy on June 30, 2000; and

(ii) the Business Case Analysis Supplement for

the Report to Congress on the Navy-Marine Corps

Intranet submitted by the Department of the Navy on

July 15, 2000; and

(B) have provided their written comments to the Secretary of the Navy and the Chief of Naval Operations; and

(2) the Secretary of the Navy and the Chief of Naval Operations have submitted to Congress a joint certification that

they have reviewed the business case for the contract and the

comments provided by the Comptroller of the Department of

Defense and the Director of the Office of Management and

Budget and that they have determined that the implementation of the contract is in the best interest of the Department

of the Navy.
Sec. 814 NAVY-MARINE CORPS INTRANET 1184

(b) PHASED IMPLEMENTATION.—(1) Upon the submission of the

certification under subsection (a)(2), the Secretary of the Navy may

commence a phased implementation of a Navy-Marine Corps

Intranet contract.

(2) Not more than 15 percent of the total number of work stations to be provided under the Navy-Marine Corps Intranet program may be provided in the first increment of implementation of

the Navy-Marine Corps Intranet contract.

(3) No work stations in excess of the number permitted by

paragraph (2) may be provided under the program until—

(A) the Secretary of the Navy has conducted operational

testing and cost review of the increment covered by that paragraph;

(B) the Chief Information Officer of the Department of Defense has certified to the Secretary of the Navy that the results

of the operational testing of the Intranet are acceptable;

(C) the Comptroller of the Department of Defense has certified to the Secretary of the Navy that the cost review provides a reliable basis for forecasting the cost impact of continued implementation; and

(D) the Secretary of the Navy and the Chief of Naval Operations have submitted to Congress a joint certification that

they have reviewed the certifications submitted under subparagraphs (B) and (C) and have determined that the continued implementation of the contract is in the best interest of the Department of the Navy.

(4) No increment of the Navy-Marine Corps Intranet that is

implemented during fiscal year 2001 may include any activities of

the Marine Corps, the naval shipyards, or the naval aviation depots. Funds available for fiscal year 2001 for activities of the Marine Corps, the naval shipyards, or the naval aviation depots may

not be expended for any contract for the Navy-Marine Corps

Intranet.

(c) ADDITIONAL PHASE-IN AUTHORITY PENDING SECOND JOINT

CERTIFICATION.—(1)(A) Notwithstanding subsection (b)(3), the Secretary of the Navy may order additional work stations under the

Navy-Marine Corps Intranet contract in excess of the number provided in the first increment of the contract under subsection (b)(2),

but not to exceed an additional 100,000 work stations. The authority of the Secretary of the Navy to order additional work stations

under this paragraph is subject to approval by both the Under Secretary of Defense for Acquisition, Technology, and Logistics and the

Chief Information Officer of the Department of Defense.

(B) The Under Secretary of Defense for Acquisition, Technology, and Logistics and the Chief Information Officer of the Department of Defense may not grant approval to the Secretary of the

Navy to order additional work stations under subparagraph (A)

until a three-phase customer test and evaluation, observed by the

Department of Defense, is completed for a statistically significant

representative sample of the work stations operating on the NavyMarine Corps Intranet. The test and evaluation shall include end

user testing of day-to-day operations (including e-mail capability

and performance), scenario-driven events, and scenario-based interoperability testing.
1185 Sec. 814 NAVY-MARINE CORPS INTRANET

(2)(A) Notwithstanding subsection (b)(3), the Secretary of the

Navy may order additional work stations under the Navy-Marine

Corps Intranet contract in excess of the number provided in the

first increment of the contract under subsection (b)(2) and the number ordered under the authority of paragraph (1), but not to exceed

an additional 150,000 work stations. The authority of the Secretary

of the Navy to order additional work stations under this paragraph

is also subject to approval by both the Under Secretary of Defense

for Acquisition, Technology, and Logistics and the Chief Information Officer of the Department of Defense.

(B) The Under Secretary of Defense for Acquisition, Technology, and Logistics and the Chief Information Officer of the Department of Defense may not grant approval to the Secretary of the

Navy to order additional work stations under subparagraph (A)

until each of the following occurs:

(i) There has been a full transition of not less than 20,000

work stations to the Navy-Marine Corps Intranet.

(ii) The work stations referred to in clause (i) have met applicable service-level agreements specified in the Navy-Marine

Corps Intranet contract, as determined by contractor performance measurement under oversight by the Department of the

Navy.

(iii) The Chief Information Officer of the Navy certifies to

the Secretary of the Navy and the Chief Information Officer of

the Department of Defense that the results of the performance

evaluation referred to in clause (ii) are acceptable.

(3) Of the work stations ordered under the authority provided

by paragraph (2), not more than 50 percent may reach the major

milestone known as ‘‘assumption of responsibility’’ until each of the

following occurs:

(A) All work stations for the headquarters of the Naval Air

Systems Command have met applicable service-level agreements specified in the Navy-Marine Corps Intranet contract, as

determined by contractor performance measurement under

oversight by the Department of the Navy.

(B) The Chief Information Officer of the Navy certifies to

the Secretary of the Navy and the Chief Information Officer of

the Department of Defense that the results of the performance

evaluation referred to in subparagraph (B) are acceptable.

(4) For the purposes of this section, when the information infrastructure and systems of a user of a work station are transferred

into Navy-Marine Corps Intranet infrastructure and systems under

the Navy-Marine Corps Intranet contract consistent with the applicable service-level agreements specified in the Navy-Marine Corps

Intranet contract, the work station shall be considered as having

been provided for the Navy-Marine Corps Intranet.

(d) REPORTING AND REVIEW REQUIREMENTS.—(1) If work stations are ordered using the authority provided by paragraph (1) or

(2) of subsection (c), the Secretary of the Navy shall submit to Congress a report, current as of the date the determination is made to

order the work stations, on the following:

(A) The number of work stations operating on the NavyMarine Corps Intranet, including the number of work stations

regarding which assumption of responsibility has occurred.
Sec. 814 NAVY-MARINE CORPS INTRANET 1186

(B) The status of testing and implementation of the NavyMarine Corps Intranet program.

(C) The number of work stations to be ordered under paragraph (1) or (2) of subsection (c), whichever applies.

(2) A report containing the information required by paragraph

(1) shall also be submitted to Congress when the requirements of

paragraph (3) of subsection (c) are satisfied and additional work

stations under the Navy-Marine Corps Intranet contract are authorized to reach assumption of responsibility.

(3) The Comptroller General shall conduct a review of the impact that participation in the Navy-Marine Corps Intranet program

has on information technology costs of working capital funded industrial facilities of the Department of the Navy and submit the results of the review to Congress.

(e) ASSIGNMENT OF NAVY-MARINE CORPS INTRANET MAN- AGER.—The Secretary of the Navy shall assign an employee of the

Department of the Navy to the Navy-Marine Corps Intranet program whose sole responsibility will be to oversee and direct the

program. The employee so assigned may not also be the program

executive officer.

(f) PROHIBITION ON INCREASE OF RATES CHARGED.—The Secretary of the Navy shall ensure that rates charged by a working

capital funded industrial facility of the Department of the Navy for

goods or services provided by such facility are not increased during

fiscal year 2001 for the purpose of funding the Navy-Marine Corps

Intranet contract.

(g) APPLICABILITY OF STATUTORY AND REGULATORY REQUIREMENTS.—The acquisition of a Navy-Marine Corps Intranet shall be

managed by the Department of the Navy in accordance with the requirements of—

(1) subtitle III of title 40, United States Code, including

the requirement for utilizing modular contracting in accordance with section 38 of the Office of Federal Procurement Policy Act (41 U.S.C. 434); and

(2) Department of Defense Directives 5000.1 and 5000.2–

R and all other directives, regulations, and management controls that are applicable to major investments in information

technology and related services.

(h) IMPACT ON FEDERAL EMPLOYEES.—The Secretary shall mitigate any adverse impact of the implementation of the Navy-Marine

Corps Intranet on civilian employees of the Department of the

Navy who, as of the date of the enactment of this Act, are performing functions that are included in the scope of the Navy-Marine Corps Intranet program by—

(1) developing a comprehensive plan for the transition of

such employees to the performance of other functions within

the Department of the Navy;

(2) taking full advantage of transition authorities available

for the benefit of employees;

(3) encouraging the retraining of employees who express a

desire to qualify for reassignment to the performance of other

functions within the Department of the Navy; and

(4) including a provision in the Navy-Marine Corps

Intranet contract that requires the contractor to provide a preference for hiring employees of the Department of the Navy
1187 Sec. 814 NAVY-MARINE CORPS INTRANET

who, as of the date of the enactment of this Act, are performing functions that are included in the scope of the contract.

(i) DURATION OF BASE NAVY-MARINE CORPS INTRANET CONTRACT.—Notwithstanding section 2306c of title 10, United States

Code, the base contract of the Navy-Marine Corps Intranet contract

may have a term in excess of five years, but not more than seven

years.

(j) DEFINITIONS.—(1) In this section, the term ‘‘Navy-Marine

Corps Intranet contract’’ means a contract providing for a longterm arrangement of the Department of the Navy with the commercial sector that imposes on the contractor a responsibility for,

and transfers to the contractor the risk of, providing and managing

the significant majority of desktop, server, infrastructure, and communication assets and services of the Department of the Navy.

(2) In this section, the term ‘‘assumption of responsibility’’,

with respect to a work station, means the point at which the

contractor team under the Navy-Marine Corps Intranet contract assumes operational control of, and responsibility for, the

existing information infrastructure and systems of a work station, in order to prepare for ultimate transition of the work

station to the Navy-Marine Corps Intranet.