10 U.S.C. § 4657 — Prohibition on criminal history inquiries

Page 2818 TITLE 10—ARMED FORCES § 4657 that a single point of contact is established to enable a defense contractor or subcontractor to promptly obtain information regarding whether a person that the contractor or subcontractor proposes to use for an activity covered by para- graph (1) of subsection (a) is under a prohibition under that subsection. (2) The procedure for obtaining such informa- tion shall be specified in regulations prescribed by the Secretary of Defense under subsection (a). (Added Pub. L. 99–500, § 101(c) [title X, § 941(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–161, and Pub. L. 99–591, § 101(c) [title X, § 941(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–161, § 2408; Pub. L. 99–661, div. A, title IX, formerly title IV, § 941(a)(1), Nov. 14, 1986, 100 Stat. 3941, renumbered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–456, div. A, title VIII, § 831(a), Sept. 29, 1988, 102 Stat. 2023; Pub. L. 101–510, div. A, title VIII, § 812, Nov. 5, 1990, 104 Stat. 1596; Pub. L. 102–484, div. A, title VIII, § 815(a), Oct. 23, 1992, 106 Stat. 2454; Pub. L. 103–355, title IV, § 4102(g), title VIII, § 8105(h), Oct. 13, 1994, 108 Stat. 3340, 3393; Pub. L. 104–106, div. A, title X, § 1062(e), Feb. 10, 1996, 110 Stat. 444; Pub. L. 111–350, § 5(b)(26), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 115–232, div. A, title VIII, § 836(e)(5), Aug. 13, 2018, 132 Stat. 1870; renum- bered § 4656, Pub. L. 116–283, div. A, title XVIII, § 1862(b), Jan. 1, 2021, 134 Stat. 4277.) Editorial Notes CODIFICATION Pub. L. 99–591 is a corrected version of Pub. L. 99–500. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections. PRIOR PROVISIONS A prior section 4656 was renumbered section 7656 of this title. AMENDMENTS 2021—Pub. L. 116–283 renumbered section 2408 of this title as this section. 2018—Subsec. (a)(4)(B). Pub. L. 115–232 substituted ‘‘commercial products or commercial services (as de- fined in sections 103 and 103a, respectively, of title 41)’’ for ‘‘commercial items (as defined in section 103 of title 41)’’. 2011—Subsec. (a)(4)(A). Pub. L. 111–350, § 5(b)(26)(A), substituted ‘‘section 134 of title 41)’’ for ‘‘section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))’’. Subsec. (a)(4)(B). Pub. L. 111–350, § 5(b)(26)(B), sub- stituted ‘‘section 103 of title 41)’’ for ‘‘section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))’’. 1996—Subsec. (a)(3). Pub. L. 104–106 struck out at end ‘‘If the five-year period is waived, the Secretary shall submit to Congress a report stating the reasons for the waiver.’’ 1994—Subsec. (a)(4). Pub. L. 103–355, § 4102(g), added in- troductory provisions and subpar. (A). Subsec. (a)(4)(B). Pub. L. 103–355, § 8105(h)(1), added subpar. (B). Subsec. (a)(4)(C). Pub. L. 103–355, § 8105(h)(2), inserted ‘‘or (B)’’ before period at end. Pub. L. 103–355, § 4102(g), added subpar. (C). 1992—Subsec. (c). Pub. L. 102–484 added subsec. (c). 1990—Subsec. (a)(1)(A). Pub. L. 101–510, § 812(a)(1), in- serted before period at end ‘‘or any first tier sub- contract of a defense contract’’. Subsec. (a)(1)(B). Pub. L. 101–510, § 812(a)(2), inserted before period at end ‘‘or any subcontractor awarded a contract directly by a defense contractor’’. Subsec. (a)(1)(C). Pub. L. 101–510, § 812(a)(3), inserted before period at end ‘‘or any subcontractor awarded a contract directly by a defense contractor’’. Subsec. (a)(1)(D). Pub. L. 101–510, § 812(a)(4), inserted before period at end ‘‘or first tier subcontract of a de- fense contract’’. Subsec. (b). Pub. L. 101–510, § 812(b), inserted ‘‘or sub- contractor’’ after ‘‘contractor’’ wherever appearing. 1988—Subsec. (a). Pub. L. 100–456 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as fol- lows: ‘‘A person who is convicted of fraud or any other felony arising out of a contract with the Department of Defense shall be prohibited from working in a manage- ment or supervisory capacity on any defense contract, or serving on the board of directors of any defense con- tractor, for a period, as determined by the Secretary of Defense, of not less than one year from the date of the conviction.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title. EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amend- ment; Savings Provision note under section 453b of Title 6, Domestic Security. EFFECTIVE DATE OF 1994 AMENDMENT For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Pub. L. 100–456, div. A, title VIII, § 831(b), Sept. 29, 1988, 102 Stat. 2023, provided that: ‘‘Section 2408(a) of title 10, United States Code [now 10 U.S.C. 4656(a)], as amended by subsection (a), shall apply with respect to individuals convicted after the date of the enactment of this Act [Sept. 29, 1988].’’ EFFECTIVE DATE Pub. L. 99–500, § 101(c) [title X, § 941(c)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–162, Pub. L. 99–591, § 101(c) [title X, § 941(c)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–162, and Pub. L. 99–661, div. A, title IX, formerly title IV, § 941(c), Nov. 14, 1986, 100 Stat. 3942, renumbered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273, provided that: ‘‘Section 2408 of title 10, United States Code [now 10 U.S.C. 4656] (as added by subsection (a)(1)), shall apply with respect to employment or service on a board of directors after the date of the enactment of this Act [Oct. 18, 1986].’’ § 4657. Prohibition on criminal history inquiries by contractors prior to conditional offer (a) LIMITATION ON CRIMINAL HISTORY INQUIR- IES.— (1) IN GENERAL.—Except as provided in para- graphs (2) and (3), the head of an agency— (A) may not require that an individual or sole proprietor who submits a bid for a con- tract to disclose criminal history record in- formation regarding that individual or sole proprietor before determining the apparent awardee; and Page 2819 TITLE 10—ARMED FORCES § 4657 (B) shall require as a condition of receiv- ing a Federal contract and receiving pay- ments under such contract that the con- tractor may not verbally or through written form request the disclosure of criminal his- tory record information regarding an appli- cant for a position related to work under such contract before such contractor extends a conditional offer to the applicant. (2) OTHERWISE REQUIRED BY LAW.—The prohibi- tion under paragraph (1) does not apply with re- spect to a contract if consideration of criminal history record information prior to a condi- tional offer with respect to the position is other- wise required by law. (3) EXCEPTION FOR CERTAIN POSITIONS.— (A) IN GENERAL.—The prohibition under paragraph (1) does not apply with respect to— (i) a contract that requires an individual hired under the contract to access classified information or to have sensitive law enforce- ment or national security duties; or (ii) a position that the Secretary of De- fense identifies under the regulations issued under subparagraph (B). (B) REGULATIONS.— (i) ISSUANCE.—Not later than 16 months after the date of enactment of the Fair Chance to Compete for Jobs Act of 2019, the Secretary of Defense, in consultation with the Administrator of General Services, shall issue regulations identifying additional posi- tions with respect to which the prohibition under paragraph (1) shall not apply, giving due consideration to positions that involve interaction with minors, access to sensitive information, or managing financial trans- actions. (ii) COMPLIANCE WITH CIVIL RIGHTS LAWS.— The regulations issued under clause (i) shall— (I) be consistent with, and in no way su- persede, restrict, or limit the application of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) or other relevant Federal civil rights laws; and (II) ensure that all hiring activities con- ducted pursuant to the regulations are conducted in a manner consistent with rel- evant Federal civil rights laws. (b) COMPLAINT PROCEDURES.—The Secretary of Defense shall establish and publish procedures under which an applicant for a position with a Department of Defense contractor may submit a complaint, or any other information, relating to compliance by the contractor with subsection (a)(1)(B). (c) ACTION FOR VIOLATIONS OF PROHIBITION ON CRIMINAL HISTORY INQUIRIES.— (1) FIRST VIOLATION.—If the Secretary of De- fense determines that a contractor has vio- lated subsection (a)(1)(B), the Secretary shall— (A) notify the contractor; (B) provide 30 days after such notification for the contractor to appeal the determina- tion; and (C) issue a written warning to the con- tractor that includes a description of the violation and the additional remedies that may apply for subsequent violations. (2) SUBSEQUENT VIOLATIONS.—If the Sec- retary of Defense determines that a contractor that was subject to paragraph (1) has com- mitted a subsequent violation of subsection (a)(1)(B), the Secretary shall notify the con- tractor, shall provide 30 days after such notifi- cation for the contractor to appeal the deter- mination, and, in consultation with the rel- evant Federal agencies, may take actions, de- pending on the severity of the infraction and the contractor’s history of violations, includ- ing— (A) providing written guidance to the con- tractor that the contractor’s eligibility for contracts requires compliance with this sec- tion; (B) requiring that the contractor respond within 30 days affirming that the contractor is taking steps to comply with this section; and (C) suspending payment under the contract for which the applicant was being considered until the contractor demonstrates compli- ance with this section. (d) DEFINITIONS.—In this section: (1) CONDITIONAL OFFER.—The term ‘‘condi- tional offer’’ means an offer of employment for a position related to work under a contract that is conditioned upon the results of a crimi- nal history inquiry. (2) CRIMINAL HISTORY RECORD INFORMATION.— The term ‘‘criminal history record informa- tion’’ has the meaning given that term in sec- tion 9201 of title 5. (Added Pub. L. 116–92, div. A, title XI, § 1123(b)(1), Dec. 20, 2019, 133 Stat. 1612, § 2339; renumbered § 4657, Pub. L. 116–283, div. A, title XVIII, § 1862(b), Jan. 1, 2021, 134 Stat. 4277.) Editorial Notes REFERENCES IN TEXT The date of enactment of the Fair Chance to Compete for Jobs Act of 2019, referred to in subsec. (a)(3)(B)(i), is the date of enactment of subtitle B of title XI of div. A of Pub. L. 116–92, which was approved Dec. 20, 2019. The Civil Rights Act of 1964, referred to in subsec. (a)(3)(B)(ii)(I), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241. Title VII of the Act is classified generally to sub- chapter VI (§ 2000e et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables. PRIOR PROVISIONS A prior section 4657 was renumbered section 7657 of this title. AMENDMENTS 2021—Pub. L. 116–283 renumbered section 2339 of this title as this section. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title. EFFECTIVE DATE Pub. L. 116–92, div. A, title XI, § 1123(b)(2), Dec. 20, 2019, 133 Stat. 1614, as amended by Pub. L. 116–283, div. Page 2820 TITLE 10—ARMED FORCES § 4658 1 See References in Text note below. A, title XVIII, § 1862(c)(3)(A), Jan. 1, 2021, 134 Stat. 4278, provided that: ‘‘Section 4657(a) of title 10, United States Code, as added by paragraph (1), shall apply with re- spect to contracts awarded pursuant to solicitations issued after the effective date described in section 1122(b)(2) of this subtitle [2 years after Dec. 20, 2019, see Effective Date note set out under section 9202 of Title 5, Government Organization and Employees].’’ REVISIONS TO FEDERAL ACQUISITION REGULATION Pub. L. 116–92, div. A, title XI, § 1123(c), Dec. 20, 2019, 133 Stat. 1614, as amended by Pub. L. 116–283, div. A, title XVIII, § 1862(c)(3)(B), Jan. 1, 2021, 134 Stat. 4278, provided that: ‘‘(1) IN GENERAL.—Not later than 18 months after the date of enactment of this subtitle [Dec. 20, 2019], the Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation to implement sec- tion 4714 of title 41, United States Code, and section 4657 of title 10, United States Code, as added by this section. ‘‘(2) CONSISTENCY WITH OFFICE OF PERSONNEL MANAGE- MENT REGULATIONS.—The Federal Acquisition Regu- latory Council shall revise the Federal Acquisition Regulation under paragraph (1) to be consistent with the regulations issued by the Director of the Office of Personnel Management under section 1122(b)(1) [5 U.S.C. 9201 note] to the maximum extent practicable. The Council shall include together with such revision an explanation of any substantive modification of the Office of Personnel Management regulations, including an explanation of how such modification will more ef- fectively implement the rights and protections under this section.’’ § 4658. Debarment of persons convicted of fraud- ulent use of ‘‘Made in America’’ labels (a) If the Secretary of Defense determines that a person has been convicted of intentionally affixing a label bearing a ‘‘Made in America’’ in- scription, or another inscription with the same meaning, to any product sold in or shipped to the United States that is not made in America, the Secretary shall determine, not later than 90 days after determining that the person has been so convicted, whether the person should be debarred from contracting with the Department of Defense. (b) In this section, the term ‘‘debar’’ has the meaning given that term by section 4654(c) of this title. (Added Pub. L. 102–484, div. A, title VIII, § 834(a)(1), Oct. 23, 1992, 106 Stat. 2461, § 2410f; amended Pub. L. 104–106, div. A, title X, § 1062(f), title XV, § 1503(a)(22), Feb. 10, 1996, 110 Stat. 444, 512; Pub. L. 107–107, div. A, title X, § 1048(a)(20), Dec. 28, 2001, 115 Stat. 1223; renumbered § 4658 and amended Pub. L. 116–283, div. A, title XVIII, § 1862(b), (c)(2), Jan. 1, 2021, 134 Stat. 4277, 4278; Pub. L. 117–81, div. A, title XVII, § 1701(b)(20), Dec. 27, 2021, 135 Stat. 2135.) Editorial Notes AMENDMENTS 2021—Pub. L. 116–283, § 1862(b), renumbered section 2410f of this title as this section. Subsec. (b). Pub. L. 116–283, § 1862(c)(2), as amended by Pub. L. 117–81, § 1701(b)(20), substituted ‘‘section 4654(c)’’ for ‘‘section 2393(c)’’. 2001—Subsec. (a). Pub. L. 107–107 inserted ‘‘, or an- other inscription with the same meaning,’’ after ‘‘in- scription’’. 1996—Subsec. (a). Pub. L. 104–106, § 1062(f), struck out at end ‘‘If the Secretary determines that the person should not be debarred, the Secretary shall submit to Congress a report on such determination not later than 30 days after the determination is made.’’ Subsec. (b). Pub. L. 104–106, § 1503(a)(22), substituted ‘‘In’’ for ‘‘For purposes of’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 applicable as if in- cluded in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below. Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title. EFFECTIVE DATE Pub. L. 102–484, div. A, title VIII, § 834(b), Oct. 23, 1992, 106 Stat. 2461, provided that: ‘‘Section 2410f of title 10, United States Code [now 10 U.S.C. 4658], as added by subsection (a), shall take effect 90 days after the date of the enactment of this Act [Oct. 23, 1992].’’ PROHIBITION OF CONTRACTS Pub. L. 106–398, § 1 [[div. A], title VIII, § 825(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–220, provided that: ‘‘If the Secretary of Defense determines that a person has been convicted of intentionally affixing a label bearing a ‘Made in America’ inscription, or another inscription with the same meaning, to any product sold in or shipped to the United States that is not made in the United States, the Secretary shall determine, in ac- cordance with section 2410f of title 10, United States Code [now 10 U.S.C. 4658], whether the person should be debarred from contracting with the Department of De- fense.’’ Similar provisions were contained in the following prior authorization acts: Pub. L. 106–65, div. A, title VIII, § 816(b), Oct. 5, 1999, 113 Stat. 712. Pub. L. 103–160, div. A, title VIII, § 849(b), Nov. 30, 1993, 107 Stat. 1725. § 4659. Prohibition on contracting with entities that comply with the secondary Arab boycott of Israel (a) POLICY.—Under section 3(5)(A) 1 of the Ex- port Administration Act of 1979 (50 U.S.C. 4602(5)(A)), it is the policy of the United States to oppose restrictive trade practices or boycotts fostered or imposed by foreign countries against other countries friendly to the United States or against any other United States person. (b) PROHIBITION.—(1) Consistent with the pol- icy referred to in subsection (a), the Department of Defense may not award a contract for an amount in excess of the simplified acquisition threshold (as defined in section 134 of title 41) to a foreign entity unless that entity certifies to the Secretary of Defense that it does not comply with the secondary Arab boycott of Israel. (2) In paragraph (1), the term ‘‘foreign entity’’ means a foreign person, a foreign company, or any other foreign entity. (c) WAIVER AUTHORITY.—The Secretary of De- fense may waive the prohibition in subsection (b) in specific instances when the Secretary de- termines that the waiver is necessary in the na- tional security interests of the United States.