40 U.S.C. § 11101 — Definitions

Page 214 TITLE 40—PUBLIC BUILDINGS, PROPERTY, AND WORKS § 9506 § 9506. Civil penalty A person that, without the consent of the Chief of Engineers, taps or opens the mains or pipes laid by the Federal Government is liable to the Government for a civil penalty of at least $50 and not more than $500. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1234.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 9506 ............ 40:56. R.S. § 1803. The words ‘‘in charge of public buildings and works’’ in section 1803 of the Revised Statutes are omitted be- cause the Office of Public Buildings and Grounds under the Chief of Engineers was abolished and the functions of the Chief of Engineers with respect to public build- ings and works were transferred to the Director of Pub- lic Buildings and Public Parks of the National Capital by section 3 of the Act of February 26, 1925 (ch. 339, 43 Stat. 983). Those functions subsequently were trans- ferred to the National Park Service by section 2 of Ex- ecutive Order No. 6166 (eff. June 10, 1933) and the Act of March 2, 1934 (ch. 38, 48 Stat. 389), the Public Buildings Administrator in the Federal Works Agency by sec- tions 301 and 303 of Reorganization Plan No. I of 1939 (eff. July 1, 1939, 53 Stat. 1426, 1427), and the Adminis- trator of General Services by section 103(a) of the Fed- eral Property and Administrative Services Act of 1949 (ch. 288, 63 Stat. 380), which is restated as section 303(c) [303(b)] of the revised title. The words ‘‘or hereafter to be laid’’ are omitted as unnecessary. The words ‘‘is lia- ble to the government for a civil penalty’’ are sub- stituted for ‘‘under a penalty’’ for consistency in the revised title and with other titles of the United States Code. § 9507. Control of expenditures Unless expressly provided for by law, the Sec- retary of the Army shall direct the expenditure of amounts appropriated for the Washington Aq- ueduct and for other public works in the District of Columbia. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1235.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 9507 ............ 40:54. R.S. § 1802. The words ‘‘Secretary of the Army’’ are substituted for ‘‘Department of War’’ [subsequently changed to ‘‘Department of the Army’’ because of section 205(a) of the National Security Act of 1947 (ch. 343, 61 Stat. 501)] because of 10:3013(a)(1). SUBTITLE III—INFORMATION TECHNOLOGY MANAGEMENT Chapter Sec. 111. GENERAL .............................................. 11101 113. RESPONSIBILITY FOR ACQUISI- TIONS OF INFORMATION TECHNOLOGY ................................. 11301 115. INFORMATION TECHNOLOGY ACQUISITION PILOT PROGRAM 11501 117. ADDITIONAL INFORMATION RE- SOURCES MANAGEMENT MAT- TERS ................................................... 11701 Editorial Notes AMENDMENTS 2002—Pub. L. 107–314, div. A, title VIII, § 825(b)(3)(G), Dec. 2, 2002, 116 Stat. 2616, and Pub. L. 107–347, title II, § 210(h)(3)(H), Dec. 17, 2002, 116 Stat. 2939, amended item for chapter 115 identically, substituting ‘‘PROGRAM’’ for ‘‘PROGRAMS’’. CHAPTER 111—GENERAL Sec. 11101. Definitions. 11102. Sense of Congress. 11103. Applicability to national security systems. § 11101. Definitions In this subtitle, the following definitions apply: (1) COMMERCIAL PRODUCT.—The term ‘‘com- mercial product’’ has the meaning given that term in section 103 of title 41. (2) EXECUTIVE AGENCY.—The term ‘‘executive agency’’ has the meaning given that term in section 133 of title 41. (3) INFORMATION RESOURCES.—The term ‘‘in- formation resources’’ has the meaning given that term in section 3502 of title 44. (4) INFORMATION RESOURCES MANAGEMENT.— The term ‘‘information resources manage- ment’’ has the meaning given that term in section 3502 of title 44. (5) INFORMATION SYSTEM.—The term ‘‘infor- mation system’’ has the meaning given that term in section 3502 of title 44. (6) INFORMATION TECHNOLOGY.—The term ‘‘in- formation technology’’— (A) with respect to an executive agency means any equipment or interconnected sys- tem or subsystem of equipment, used in the automatic acquisition, storage, analysis, evaluation, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by the executive agen- cy, if the equipment is used by the executive agency directly or is used by a contractor under a contract with the executive agency that requires the use— (i) of that equipment; or (ii) of that equipment to a significant ex- tent in the performance of a service or the furnishing of a product; (B) includes computers, ancillary equip- ment (including imaging peripherals, input, output, and storage devices necessary for se- curity and surveillance), peripheral equip- ment designed to be controlled by the cen- tral processing unit of a computer, software, firmware and similar procedures, services (including support services), and related re- sources; but (C) does not include any equipment ac- quired by a federal contractor incidental to a federal contract. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1235; Pub. L. 108–199, div. F, title V, § 535(b), Jan. 23, 2004, 118 Stat. 345; Pub. L. 111–350, § 5(l)(24), Jan. 4, 2011, 124 Stat. 3852; Pub. L. 115–232, div. A, title VIII, § 836(g)(7)(A), Aug. 13, 2018, 132 Stat. 1874.) Page 215 TITLE 40—PUBLIC BUILDINGS, PROPERTY, AND WORKS § 11101 HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 11101 .......... 40:1401. Pub. L. 104–106, div. E, § 5002, Feb. 10, 1996, 110 Stat. 679. The text of 40:1401(1) is omitted as unnecessary be- cause the complete name of the Director of the Office of Management and Budget is used the first time the term appears in a section. Editorial Notes AMENDMENTS 2018—Par. (1). Pub. L. 115–232, in heading, substituted ‘‘Commercial product’’ for ‘‘Commercial item’’ and, in text, substituted ‘‘The term ‘commercial product’ has’’ for ‘‘The term ‘commercial item’ has’’. 2011—Par. (1). Pub. L. 111–350, § 5(l)(24)(A), substituted ‘‘section 103 of title 41’’ for ‘‘section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)’’. Par. (2). Pub. L. 111–350, § 5(l)(24)(B), substituted ‘‘sec- tion 133 of title 41’’ for ‘‘section 4 of the Act (41 U.S.C. 403)’’. 2004—Par. (6)(A). Pub. L. 108–199, § 535(b)(1), inserted ‘‘analysis, evaluation,’’ after ‘‘storage,’’. Par. (6)(B). Pub. L. 108–199, § 535(b)(2), substituted ‘‘an- cillary equipment (including imaging peripherals, input, output, and storage devices necessary for secu- rity and surveillance), peripheral equipment designed to be controlled by the central processing unit of a computer,’’ for ‘‘ancillary equipment,’’. Statutory Notes and Related Subsidiaries 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. Executive Documents EXECUTIVE ORDER NO. 13011 Ex. Ord. No. 13011, July 16, 1996, 61 F.R. 37657, as amended by Ex. Ord. No. 13284, § 16, Jan. 23, 2003, 68 F.R. 4076; Ex. Ord. No. 13286, § 18, Feb. 28, 2003, 68 F.R. 10623, which related to information technology policies and reforms for Federal agencies, was revoked by Ex. Ord. No. 13403, § 6, May 12, 2006, 71 F.R. 28543. EX. ORD. NO. 13103. COMPUTER SOFTWARE PIRACY Ex. Ord. No. 13103, Sept. 30, 1998, 63 F.R. 53273, pro- vided: The United States Government is the world’s largest purchaser of computer-related services and equipment, purchasing more than $20 billion annually. At a time when a critical component in discussions with our international trading partners concerns their efforts to combat piracy of computer software and other intellec- tual property, it is incumbent on the United States to ensure that its own practices as a purchaser and user of computer software are beyond reproach. Accordingly, by the authority vested in me as President by the Con- stitution and the laws of the United States of America, it is hereby ordered as follows: SECTION 1. Policy. It shall be the policy of the United States Government that each executive agency shall work diligently to prevent and combat computer soft- ware piracy in order to give effect to copyrights associ- ated with computer software by observing the relevant provisions of international agreements in effect in the United States, including applicable provisions of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights, the Berne Con- vention for the Protection of Literary and Artistic Works, and relevant provisions of Federal law, includ- ing the Copyright Act. (a) Each agency shall adopt procedures to ensure that the agency does not acquire, reproduce, distribute, or transmit computer software in violation of applicable copyright laws. (b) Each agency shall establish procedures to ensure that the agency has present on its computers and uses only computer software not in violation of applicable copyright laws. These procedures may include: (1) preparing agency inventories of the software present on its computers; (2) determining what computer software the agency has the authorization to use; and (3) developing and maintaining adequate record- keeping systems. (c) Contractors and recipients of Federal financial as- sistance, including recipients of grants and loan guar- antee assistance, should have appropriate systems and controls in place to ensure that Federal funds are not used to acquire, operate, or maintain computer soft- ware in violation of applicable copyright laws. If agen- cies become aware that contractors or recipients are using Federal funds to acquire, operate, or maintain computer software in violation of copyright laws and determine that such actions of the contractors or re- cipients may affect the integrity of the agency’s con- tracting and Federal financial assistance processes, agencies shall take such measures, including the use of certifications or written assurances, as the agency head deems appropriate and consistent with the require- ments of law. (d) Executive agencies shall cooperate fully in imple- menting this order and shall share information as ap- propriate that may be useful in combating the use of computer software in violation of applicable copyright laws. SEC. 2. Responsibilities of Agency Heads. In connection with the acquisition and use of computer software, the head of each executive agency shall: (a) ensure agency compliance with copyright laws protecting computer software and with the provisions of this order to ensure that only authorized computer software is acquired for and used on the agency’s com- puters; (b) utilize performance measures as recommended by the Chief Information Officers Council pursuant to sec- tion 3 of this order to assess the agency’s compliance with this order; (c) educate appropriate agency personnel regarding copyrights protecting computer software and the poli- cies and procedures adopted by the agency to honor them; and (d) ensure that the policies, procedures, and practices of the agency related to copyrights protecting com- puter software are adequate and fully implement the policies set forth in this order. SEC. 3. Chief Information Officers Council. The Chief In- formation Officers Council (‘‘Council’’) established by section 3 of Executive Order No. 13011 of July 16, 1996 [set out above], shall be the principal interagency forum to improve executive agency practices regarding the acquisition and use of computer software, and mon- itoring and combating the use of unauthorized com- puter software. The Council shall provide advice and make recommendations to executive agencies and to the Office of Management and Budget regarding appro- priate government-wide measures to carry out this order. The Council shall issue its initial recommenda- tions within 6 months of the date of this order. SEC. 4. Office of Management and Budget. The Director of the Office of Management and Budget, in carrying out responsibilities under the Clinger-Cohen Act [prob- ably means the Clinger-Cohen Act of 1996, div. D (§§ 4001–4402) and div. E (§§ 5001–5703) of Pub. L. 104–106, see Tables for classification], shall utilize appropriate oversight mechanisms to foster agency compliance with the policies set forth in this order. In carrying out these responsibilities, the Director shall consider any recommendations made by the Council under section 3 Page 216 TITLE 40—PUBLIC BUILDINGS, PROPERTY, AND WORKS § 11102 of this order regarding practices and policies to be in- stituted on a government-wide basis to carry out this order. SEC. 5. Definition. ‘‘Executive agency’’ and ‘‘agency’’ have the meaning given to that term in section 4(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(1)). SEC. 6. National Security. In the interest of national security, nothing in this order shall be construed to re- quire the disclosure of intelligence sources or methods or to otherwise impair the authority of those agencies listed at [former] 50 U.S.[C.] 401a(4) [now 50 U.S.C. 3003(4)] to carry out intelligence activities. SEC. 7. Law Enforcement Activities. Nothing in this order shall be construed to require the disclosure of law enforcement investigative sources or methods or to prohibit or otherwise impair any lawful investigative or protective activity undertaken for or by any officer, agent, or employee of the United States or any person acting pursuant to a contract or other agreement with such entities. SEC. 8. Scope. Nothing in this order shall be construed to limit or otherwise affect the interpretation, applica- tion, or operation of 28 U.S.C. 1498. SEC. 9. Judicial Review. This Executive order is in- tended only to improve the internal management of the executive branch and does not create any right or ben- efit, substantive or procedural, at law or equity by a party against the United States, its agencies or instru- mentalities, its officers or employees, or any other per- son. WILLIAM J. CLINTON. § 11102. Sense of Congress It is the sense of Congress that, during the five-year period beginning with 1996, executive agencies should achieve each year through im- provements in information resources manage- ment by the agency— (1) at least a five percent decrease in the cost (in constant fiscal year 1996 dollars) in- curred by the agency in operating and main- taining information technology; and (2) a five percent increase in the efficiency of the agency operations. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1236.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 11102 .......... 40:1442. Pub. L. 104–106, div. E, title LI, § 5132, Feb. 10, 1996, 110 Stat. 689. § 11103. Applicability to national security sys- tems (a) DEFINITION.— (1) NATIONAL SECURITY SYSTEM.—In this sec- tion, the term ‘‘national security system’’ means a telecommunications or information system operated by the Federal Government, 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 mili- tary forces; (D) involves equipment that is an integral part of a weapon or weapons system; or (E) subject to paragraph (2), is critical to the direct fulfillment of military or intel- ligence missions. (2) LIMITATION.—Paragraph (1)(E) does not include a system to be used for routine admin- istrative and business applications (including payroll, finance, logistics, and personnel man- agement applications). (b) IN GENERAL.—Except as provided in sub- section (c), chapter 113 of this title does not apply to national security systems. (c) EXCEPTIONS.— (1) IN GENERAL.—Sections 11313, 11315, and 11316 of this title apply to national security systems. (2) CAPITAL PLANNING AND INVESTMENT CON- TROL.—The heads of executive agencies shall apply sections 11302 and 11312 of this title to national security systems to the extent prac- ticable. (3) APPLICABILITY OF PERFORMANCE-BASED AND RESULTS-BASED MANAGEMENT TO NATIONAL SECURITY SYSTEMS.— (A) IN GENERAL.—Subject to subparagraph (B), the heads of executive agencies shall apply section 11303 of this title to national security systems to the extent practicable. (B) EXCEPTION.—National security systems are subject to section 11303(b)(5) of this title, except for subparagraph (B)(iv). (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1236.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 11103(a) ...... 40:1452. Pub. L. 104–106, div. E, title LI, §§ 5141, 5142, Feb. 10, 1996, 110 Stat. 689. 11103(b) ...... 40:1451(a). 11103(c) ...... 40:1451(b). Statutory Notes and Related Subsidiaries EXEMPTION FROM REQUIREMENT FOR CAPITAL PLANNING AND INVESTMENT CONTROL FOR INFORMATION TECH- NOLOGY EQUIPMENT INCLUDED AS INTEGRAL PART OF A WEAPON OR WEAPON SYSTEM Pub. L. 114–328, div. A, title VIII, § 895, Dec. 23, 2016, 130 Stat. 2326, as amended by Pub. L. 117–81, div. A, title XVII, § 1702(l)(9), Dec. 27, 2021, 135 Stat. 2161, provided that: ‘‘(a) WAIVER AUTHORITY.—Notwithstanding sub- section (c)(2) of section 11103 of title 40, United States Code, a national security system described in sub- section (a)(1)(D) of such section shall not be subject to the requirements of paragraphs (2) through (5) of sec- tion 11312(b) of such title unless the milestone decision authority determines in writing that application of such requirements is appropriate and in the best inter- ests of the Department of Defense. ‘‘(b) MILESTONE DECISION AUTHORITY DEFINED.—In this section, the term ‘milestone decision authority’ has the meaning given the term in section 4251(d)(5) of title 10, United States Code.’’ CHAPTER 113—RESPONSIBILITY FOR ACQUI- SITIONS OF INFORMATION TECHNOLOGY SUBCHAPTER I—DIRECTOR OF OFFICE OF MANAGEMENT AND BUDGET Sec. 11301. Responsibility of Director. 11302. Capital planning and investment control. 11303. Performance-based and results-based manage- ment. SUBCHAPTER II—EXECUTIVE AGENCIES 11311. Responsibilities. 11312. Capital planning and investment control.