10 U.S.C. § 129 — Civilian personnel management

Page 157 TITLE 10—ARMED FORCES § 129 likelihood of an illegal production, theft, diver- sion, or sabotage referred to in such paragraph would be if the information proposed to be pro- hibited from dissemination under this section were at no time available for dissemination. (4) The Secretary shall exercise his authority under this subsection to prohibit the dissemina- tion of any information described in paragraph (1)— (A) so as to apply the minimum restrictions needed to protect the health and safety of the public or the common defense and security; and (B) upon a determination that the unauthor- ized dissemination of such information could reasonably be expected to result in a signifi- cant adverse effect on the health and safety of the public or the common defense and security by significantly increasing the likelihood of— (i) illegal production of nuclear weapons, or (ii) theft, diversion, or sabotage of nuclear materials, equipment, or facilities. (b) Nothing in this section shall be construed to authorize the Secretary to withhold, or to au- thorize the withholding of, information from the appropriate committees of the Congress. (c) Any determination by the Secretary con- cerning the applicability of this section shall be subject to judicial review pursuant to section 552(a)(4)(B) of title 5. (d) Information that the Secretary prohibits to be disseminated pursuant to subsection (a) that is provided to a State or local government shall remain under the control of the Depart- ment of Defense, and a State or local law au- thorizing or requiring a State or local govern- ment to disclose such information shall not apply to such information. (Added Pub. L. 100–180, div. A, title XI, § 1123(a), Dec. 4, 1987, 101 Stat. 1149; amended Pub. L. 101–510, div. A, title XIII, § 1311(1), Nov. 5, 1990, 104 Stat. 1669; Pub. L. 108–136, div. A, title X, § 1031(a)(4), Nov. 24, 2003, 117 Stat. 1596; Pub. L. 114–328, div. A, title XVI, § 1662(a)(1), (2), Dec. 23, 2016, 130 Stat. 2614.) Editorial Notes PRIOR PROVISIONS A prior section 128 was renumbered section 421 of this title. AMENDMENTS 2016—Pub. L. 114–328, § 1662(a)(2), substituted ‘‘Control and physical protection’’ for ‘‘Physical protection’’ in section catchline. Subsec. (d). Pub. L. 114–328, § 1662(a)(1), added subsec. (d). 2003—Subsec. (d). Pub. L. 108–136 struck out subsec. (d) which required the Secretary to prepare an annual report detailing the Secretary’s application during the year of each regulation or order prescribed or issued under this section. 1990—Subsec. (d). Pub. L. 101–510 substituted ‘‘on an annual basis’’ for ‘‘on a quarterly basis’’. § 129. Civilian personnel management (a) The civilian personnel of the Department of Defense shall be managed each fiscal year solely on the basis of and consistent with (1) the total force management policies and procedures established under section 129a of this title, (2) the workload required to carry out the functions and activities of the department, and (3) the funds made available to the department for such fiscal year. The management of such personnel in any fiscal year shall not be subject to any constraint or limitation in terms of man years, end strength, full-time equivalent positions, or maximum number of employees. The Secretary of Defense and the Secretaries of the military departments may not be required to make a re- duction in the number of full-time equivalent positions in the Department of Defense except in accordance with the requirements of this sec- tion and section 129a of this title. (b) With respect to each budget activity with- in an appropriation for a fiscal year for oper- ations and maintenance, the Secretary of De- fense shall ensure that there are employed dur- ing that fiscal year employees in the number and with the combination of skills and qualifica- tions that are necessary to carry out the func- tions within that budget activity as determined under the total force management policies and procedures established under section 129a of this title. (c)(1) Not later than February 1 of each year— (A) the Secretary of Defense shall submit to the congressional defense committees a report on the management of the civilian workforce of the Office of the Secretary of Defense and the Defense Agencies and Field Activities; and (B) the Secretary of each military depart- ment shall submit to the congressional de- fense committees a report on the management of the civilian workforces under the jurisdic- tion of such Secretary. (2) Each report under paragraph (1) shall con- tain, with respect to the civilian workforce under the jurisdiction of the official submitting the report, the following: (A) An assessment of the projected size and associated cost of such civilian workforce in the current year and for each year in the fu- ture-years defense program. (B) If the projected size and associated cost of such civilian workforce has changed from the previous year’s projected size and associ- ated cost, an explanation of the reasons for the increase or decrease from the previous pro- jection, including an explanation of any ef- forts to reduce the overall costs of the total force of military, civilian, and contract workforces. (C) In the case of a transfer of functions be- tween military, civilian, and contractor workforces, an explanation of the reasons for the transfer and the steps that have been taken to control the overall cost of the func- tion to the Department. (Added Pub. L. 97–86, title IX, § 904(a), Dec. 1, 1981, 95 Stat. 1114, § 140b; renumbered § 129, Pub. L. 99–433, title I, § 101(a)(3), Oct. 1, 1986, 100 Stat. 994; amended Pub. L. 99–661, div. A, title V, § 533, Nov. 14, 1986, 100 Stat. 3873; Pub. L. 102–190, div. A, title III, § 312(b), Dec. 5, 1991, 105 Stat. 1335; Pub. L. 104–106, div. A, title X, § 1031, Feb. 10, 1996, 110 Stat. 428; Pub. L. 104–201, div. A, title X, § 1074(a)(1), title XVI, § 1603, Sept. 23, 1996, 110 Page 158 TITLE 10—ARMED FORCES § 129a Stat. 2658, 2735; Pub. L. 105–85, div. A, title XI, § 1101, Nov. 18, 1997, 111 Stat. 1922; Pub. L. 106–65, div. A, title X, § 1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 112–81, div. A, title IX, § 932, Dec. 31, 2011, 125 Stat. 1543; Pub. L. 114–328, div. A, title XI, § 1101(a), (b)(1), Dec. 23, 2016, 130 Stat. 2443; Pub. L. 116–92, div. A, title XI, § 1103, Dec. 20, 2019, 133 Stat. 1596; Pub. L. 117–81, div. A, title XI, § 1102, Dec. 27, 2021, 135 Stat. 1949.) Editorial Notes AMENDMENTS 2021—Subsec. (a). Pub. L. 117–81, in first sentence, substituted ‘‘solely’’ for ‘‘primarily’’ and, in second sentence, struck out ‘‘solely’’ after ‘‘shall not be sub- ject’’. 2019—Subsec. (a). Pub. L. 116–92, § 1103(1), in first sen- tence, substituted ‘‘each fiscal year primarily’’ for ‘‘each fiscal year’’, and in second sentence, substituted ‘‘The management of such personnel in any fiscal year shall not be subject solely to any’’ for ‘‘Any’’ and struck out ‘‘shall be developed on the basis of those fac- tors and shall be subject to adjustment solely for rea- sons of changed circumstances’’ after ‘‘number of em- ployees’’. Subsec. (c)(2)(A). Pub. L. 116–92, § 1103(2)(A), inserted ‘‘and associated cost’’ after ‘‘projected size’’. Subsec. (c)(2)(B). Pub. L. 116–92, § 1103(2), inserted ‘‘and associated cost’’ after ‘‘projected size’’ in two places and substituted ‘‘to reduce the overall costs of the total force of military, civilian, and contract workforces.’’ for ‘‘that have been taken to identify off- setting reductions and avoid unnecessary overall growth in the size of the civilian workforce.’’ 2016—Pub. L. 114–328, § 1101(b)(1), amended section catchline generally, substituting ‘‘Civilian personnel management’’ for ‘‘Prohibition of certain civilian per- sonnel management constraints’’. Subsec. (a). Pub. L. 114–328, § 1101(a)(1), in first sen- tence, struck out ‘‘solely’’ before ‘‘on the basis’’, in sec- ond sentence, substituted ‘‘Any’’ for ‘‘The management of such personnel in any fiscal year shall not be subject to any’’ and inserted ‘‘shall be developed on the basis of those factors and shall be subject to adjustment sole- ly for reasons of changed circumstances’’ after ‘‘em- ployees’’, and in third sentence, substituted ‘‘except in accordance with the requirements of this section and section 129a of this title.’’ for ‘‘unless such reduction is necessary due to a reduction in funds available to the Department or is required under a law that is enacted after February 10, 1996, and that refers specifically to this subsection.’’ Subsec. (b). Pub. L. 114–328, § 1101(a)(2), (3), redesig- nated subsec. (d) as (b) and struck out former subsec. (b) which related to the number of, and the amount of funds available to be paid to, indirectly funded Govern- ment employees of the Department of Defense. Subsec. (c). Pub. L. 114–328, § 1101(a)(2), (4), added sub- sec. (c) and struck out former subsec. (c) which defined the term ‘‘indirectly funded Government employees’’. Subsecs. (d) to (f). Pub. L. 114–328, § 1101(a)(2), (3), re- designated subsec. (d) as (b) and struck out subsecs. (e) and (f) which read as follows: ‘‘(e) Subsections (a), (b), and (c) apply to the Major Range and Test Facility Base (MRTFB) at the installa- tion level. ‘‘(f)(1) Not later than February 1 of each year, the Secretary of each military department and the head of each Defense Agency shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a re- port on the management of the civilian workforce under the jurisdiction of that official. ‘‘(2) Each report of an official under paragraph (1) shall contain the following: ‘‘(A) The official’s certification (i) that the civilian workforce under the jurisdiction of the official is not subject to any constraint or limitation in terms of man years, end strength, full-time equivalent posi- tions, or maximum number of employees, and (ii) that, during the 12 months preceding the date on which the report is due, such workforce has not been subject to any such constraint or limitation. ‘‘(B) A description of how the civilian workforce is managed. ‘‘(C) A detailed description of the analytical tools used to determine civilian workforce requirements during the 12-month period referred to in subpara- graph (A).’’ 2011—Subsec. (a). Pub. L. 112–81, § 932(1), inserted ‘‘the total force management policies and procedures estab- lished under section 129a of this title, (2)’’ after ‘‘(1)’’ and substituted ‘‘department, and (3)’’ for ‘‘department and (2)’’. Subsec. (d). Pub. L. 112–81, § 932(2), substituted ‘‘with- in that budget activity as determined under the total force management policies and procedures established under section 129a of this title.’’ for ‘‘within that budg- et activity for which funds are provided for that fiscal year.’’ Subsec. (e). Pub. L. 112–81, § 932(3), struck out at end ‘‘With respect to the MRTFB structure, the term ‘funds made available’ includes both direct appropriated funds and funds provided by MRTFB customers.’’ 1999—Subsec. (f)(1). Pub. L. 106–65 substituted ‘‘and the Committee on Armed Services’’ for ‘‘and the Com- mittee on National Security’’. 1997—Subsec. (f). Pub. L. 105–85 added subsec. (f). 1996—Subsec. (a). Pub. L. 104–201, § 1074(a)(1), sub- stituted ‘‘February 10, 1996,’’ for ‘‘the date of the enact- ment of the National Defense Authorization Act for Fiscal Year 1996’’. Pub. L. 104–106, § 1031(1), substituted ‘‘constraint or limitation in terms of man years, end strength, full- time equivalent positions, or maximum number of em- ployees. The Secretary of Defense and the Secretaries of the military departments may not be required to make a reduction in the number of full-time equivalent positions in the Department of Defense unless such re- duction is necessary due to a reduction in funds avail- able to the Department or is required under a law that is enacted after the date of the enactment of the Na- tional Defense Authorization Act for Fiscal Year 1996 and that refers specifically to this subsection.’’ for ‘‘man-year constraint or limitation.’’ Subsec. (b)(2). Pub. L. 104–106, § 1031(2), substituted ‘‘any constraint or limitation in terms of man years, end strength, full-time equivalent positions, or max- imum number of employees’’ for ‘‘any end-strength’’. Subsec. (c)(1). Pub. L. 104–201, § 1603(1), inserted ‘‘, the Major Range and Test Facility Base,’’ after ‘‘indus- trial-type activities’’. Subsec. (d). Pub. L. 104–106, § 1031(3), added subsec. (d). Subsec. (e). Pub. L. 104–201, § 1603(2), added subsec. (e). 1991—Subsec. (a). Pub. L. 102–190 substituted ‘‘depart- ment and (2)’’ for ‘‘department, (2)’’ and struck out ‘‘, and (3) the authorized end strength for the civilian personnel of the department for such fiscal year’’ at end of first sentence. 1986—Pub. L. 99–661 designated existing provisions as subsec. (a) and added subsecs. (b) and (c). Pub. L. 99–433 renumbered section 140b of this title as this section. § 129a. General policy for total force management (a) POLICIES AND PROCEDURES.—The Secretary of Defense shall establish policies and proce- dures for determining the most appropriate and cost efficient mix of military, civilian, and con- tractor personnel to perform the mission of the Department of Defense. (b) RISK MITIGATION OVER COST.—In estab- lishing the policies and procedures under sub- section (a), the Secretary shall clearly provide that attainment of a Department of Defense