10 U.S.C. § 119 — Special access programs: congressional

Page 132 TITLE 10—ARMED FORCES § 119 (9) identify mechanisms to provide informa- tion on defense technology priorities to indus- try to enable industry to invest deliberately in emerging technologies to build and broaden the capabilities of the industrial base. (c) COORDINATION.—The Secretary of Defense shall develop the strategy under subsection (a) in coordination with relevant entities within the Office of the Secretary of Defense, the mili- tary departments, the research organizations of Defense Agencies and Department of Defense Field Activities, the intelligence community, defense and technology industry partners, re- search and development partners, other Federal research agencies, allies and partners of the United States, and other appropriate organiza- tions. (d) CONSIDERATIONS.—In developing the strat- egy under subsection (a), the Secretary of De- fense shall consider— (1) the operational challenges identified in the National Defense Strategy and the techno- logical threats and opportunities identified through the global technology review and as- sessment activities of the Department of De- fense, the intelligence community, and other technology partners; (2) current military requirements and emerging technologies in the defense and com- mercial sectors; (3) the capabilities of foreign near-peer and peer nations; (4) the need to support the development of a robust trusted and assured industrial base to manufacture and sustain the technologies and capabilities to meet defense requirements; and (5) near-term, mid-term, and long-term tech- nology and capability development goals. (e) REPORTS.— (1) SUBSEQUENT REPORTS AND UPDATES.—Not later than February 1 of the year following each fiscal year in which the National Defense Strategy is submitted under section 113(g) of this title, the Secretary of Defense shall sub- mit to the congressional defense committees a report that includes an updated version of the strategy under subsection (a). Each update to such strategy shall be prepared for purposes of such report based on emerging requirements, technological developments in the United States, and technical intelligence derived from global technology reviews conducted by the Secretary of Defense. (2) FORM OF REPORTS.—The reports sub- mitted under paragraph (1) may be submitted in a form determined appropriate by the Sec- retary of Defense, which may include classi- fied, unclassified, and publicly releasable for- mats, as appropriate. (f) BRIEFING.—Not later than 90 days after the date on which the strategy under subsection (a) is completed, the Secretary of Defense shall pro- vide to the Committees on Armed Services of the Senate and the House of Representatives a briefing on the implementation plan for the strategy. (g) DESIGNATION.—The strategy developed under subsection (a) shall be known as the ‘‘Na- tional Defense Science and Technology Strat- egy’’. (Added Pub. L. 117–81, div. A, title II, § 211(a), Dec. 27, 2021, 135 Stat. 1585.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in Pub. L. 115–232, div. A, title II, § 218, Aug. 13, 2018, 132 Stat. 1679, which was not classified to the Code and was repealed by Pub. L. 117–81, div. A, title II, § 211(c), Dec. 27, 2021, 135 Stat. 1587. § 119. Special access programs: congressional oversight (a)(1) Not later than March 1 of each year, the Secretary of Defense shall submit to the defense committees a report on special access programs. (2) Each such report shall set forth— (A) the total amount requested for special access programs of the Department of Defense in the President’s budget for the next fiscal year submitted under section 1105 of title 31; and (B) for each program in that budget that is a special access program— (i) a brief description of the program; (ii) a brief discussion of the major mile- stones 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 pro- gram 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. (3) In the case of a report under paragraph (1) submitted in a year during which the Presi- dent’s budget for the next fiscal year, because of multiyear budgeting for the Department of De- fense, does not include a full budget request for the Department of Defense, the report required by paragraph (1) shall set forth— (A) the total amount already appropriated for the next fiscal year for special access pro- grams of the Department of Defense and any additional amount requested in that budget for such programs for such fiscal year; and (B) for each program of the Department of Defense that is a special access program, the information specified in paragraph (2)(B). (b)(1) Not later than February 1 of each year, the Secretary of Defense shall submit to the de- fense committees a report that, with respect to each new special access program, 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 pro- gram cost for the program; and (B) an identification of existing programs or technologies that are similar to the tech- nology, or that have a mission similar to the mission, of the program that is the subject of the notice. Page 133 TITLE 10—ARMED FORCES § 119 (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)(1) Whenever a change in the classification of a special access program of the Department of Defense is planned to be made or whenever clas- sified information concerning a special access program of the Department of Defense is to be declassified and made public, the Secretary of Defense shall submit to the defense committees a report containing a description of the proposed change, the reasons for the proposed change, and notice of any public announcement planned to be made with respect to the proposed change. (2) Except as provided in paragraph (3), any re- port referred to in paragraph (1) shall be sub- mitted not less than 14 days before the date on which the proposed change or public announce- ment is to occur. (3) If the Secretary determines that because of exceptional circumstances the requirement of paragraph (2) cannot be met with respect to a proposed change or public announcement con- cerning a special access program of the Depart- ment of Defense, the Secretary may submit the report required by paragraph (1) regarding the proposed change or public announcement at any time before the proposed change or public an- nouncement is made and shall include in the re- port an explanation of the exceptional cir- cumstances. (d) Whenever there is a modification or termi- nation of the policy and criteria used for desig- nating a program of the Department of Defense as a special access program, the Secretary of De- fense shall promptly notify the defense commit- tees 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)(1) The Secretary of Defense may waive any requirement under subsection (a), (b), or (c) that certain information be included in a report under that subsection if the Secretary deter- mines that inclusion of that information in the report would adversely affect the national secu- rity. Any such waiver shall be made on a case- by-case basis. (2) If the Secretary exercises the authority provided under paragraph (1), the Secretary shall provide the information described in that subsection with respect to the special access program concerned, and the justification for the waiver, jointly to the chairman and ranking mi- nority member of each of the defense commit- tees. (f) A special access program may not be initi- ated until— (1) the defense committees are notified of the program; and (2) a period of 30 days elapses after such noti- fication is received. (g) In this section, the term ‘‘defense commit- tees’’ means— (1) the Committee on Armed Services and the Committee on Appropriations, and the De- fense Subcommittee of the Committee on Ap- propriations, of the Senate; and (2) the Committee on Armed Services and the Committee on Appropriations, and the Subcommittee on Defense of the Committee on Appropriations, of the House of Representa- tives. (Added Pub. L. 100–180, div. A, title XI, § 1132(a)(1), Dec. 4, 1987, 101 Stat. 1151; amended Pub. L. 101–510, div. A, title XIV, §§ 1461, 1482(a), Nov. 5, 1990, 104 Stat. 1698, 1709; Pub. L. 104–106, div. A, title X, § 1055, title XV, § 1502(a)(4), Feb. 10, 1996, 110 Stat. 442, 502; Pub. L. 106–65, div. A, title X, § 1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–107, div. A, title X, § 1048(a)(2), Dec. 28, 2001, 115 Stat. 1222.) Editorial Notes AMENDMENTS 2001—Subsec. (g)(2). Pub. L. 107–107 substituted ‘‘Sub- committee on Defense’’ for ‘‘National Security Sub- committee’’. 1999—Subsec. (g)(2). Pub. L. 106–65 substituted ‘‘Com- mittee on Armed Services’’ for ‘‘Committee on Na- tional Security’’. 1996—Subsec. (a)(1). Pub. L. 104–106, § 1055, substituted ‘‘March 1’’ for ‘‘February 1’’. Subsec. (g). Pub. L. 104–106, § 1502(a)(4), added pars. (1) and (2) and struck out former pars. (1) and (2) which read as follows: ‘‘(1) the Committees on Armed Services and Appro- priations of the Senate and House of Representatives; and ‘‘(2) the Defense Subcommittees of the Committees on Appropriations of the Senate and House of Rep- resentatives.’’ 1990—Subsec. (c). Pub. L. 101–510, § 1461(a), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: ‘‘Whenever a change is made in the sta- tus of a program of the Department of Defense as a spe- cial access program, the Secretary of Defense shall sub- mit to the defense committees a report describing the change. Any such report shall be submitted not later than 30 days after the date on which the change takes effect.’’ Subsec. (f). Pub. L. 101–510, § 1482(a)(2), added subsec. (f). Former subsec. (f) redesignated (g). Pub. L. 101–510, § 1461(b), inserted ‘‘and Appropria- tions’’ after ‘‘Armed Services’’ in par. (1). Subsec. (g). Pub. L. 101–510, § 1482(a)(1), redesignated subsec. (f) as (g). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–510, div. A, title XIV, § 1482(d), Nov. 5, 1990, 104 Stat. 1710, provided that: ‘‘The amendments made by this section [enacting section 2214 of this title and amending this section and section 1584 of this title] shall take effect on October 1, 1991.’’ TERMINATION OF REPORTING REQUIREMENTS For termination, effective Dec. 31, 2021, of provisions in subsecs. (a) and (b) of this section requiring sub- mittal of annual report to Congress, see section 1061 of Pub. L. 114–328, set out as a note under section 111 of this title. INITIAL REPORTS ON SPECIAL ACCESS PROGRAMS Pub. L. 100–180, div. A, title XI, § 1132(b), (c), Dec. 4, 1987, 101 Stat. 1152, required that the first report under subsec. (a) of this section set forth the amount that had been requested in the President’s budget for each of the five previous fiscal years for special access programs of the Department of Defense and the amount appro- priated for each such year for such programs, and re- quired that the first report under subsec. (b) of this sec- tion cover existing special access programs. Page 134 TITLE 10—ARMED FORCES § 119a § 119a. Programs managed under alternative compensatory control measures: congres- sional oversight (a) ANNUAL REPORT ON CURRENT PROGRAMS UNDER ACCMS.— (1) IN GENERAL.—Not later than March 1 each year, the Secretary of Defense shall submit to the congressional defense committees a report on the programs being managed under alter- native compensatory control measures in the Department of Defense. (2) ELEMENTS.—Each report under paragraph (1) shall set forth the following: (A) The total amount requested for pro- grams being managed under alternative compensatory control measures in the De- partment in the budget of the President under section 1105 of title 31 for the fiscal year beginning in the fiscal year in which such report is submitted. (B) For each program in that budget that is a program being managed under alter- native compensatory control measures in the Department— (i) a brief description of the program; (ii) a brief discussion of the major mile- stones 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 pro- gram and the estimated cost of the pro- gram for— (I) the current fiscal year; (II) the fiscal year for which that budg- et is submitted; and (III) each of the four succeeding fiscal years during which the program is ex- pected to be conducted. (3) ELEMENTS ON PROGRAMS COVERED BY MULTIYEAR BUDGETING.—In the case of a report under paragraph (1) submitted in a year during which the budget of the President for the fis- cal year concerned does not, because of multiyear budgeting for the Department, in- clude a full budget request for the Depart- ment, the report required by paragraph (1) shall set forth— (A) the total amount already appropriated for the next fiscal year for programs being managed under alternative compensatory control measures in the Department, and any additional amount requested in that budget for such programs for such fiscal year; and (B) for each program that is a program being managed under alternative compen- satory control measures in the Department, the information specified in paragraph (2)(B). (b) ANNUAL REPORT ON NEW PROGRAMS UNDER ACCMS.— (1) IN GENERAL.—Not later than February 1 each year, the Secretary shall submit to the congressional defense committees a report that, with respect to each new program being managed under alternative compensatory con- trol measures in the Department, provides— (A) notice of the designation of the pro- gram as a program being managed under al- ternative compensatory control measures in the Department; and (B) a justification for such designation. (2) ADDITIONAL ELEMENTS.—A report under paragraph (1) with respect to a program shall include— (A) the current estimate of the total pro- gram cost for the program; and (B) an identification of existing programs or technologies that are similar to the tech- nology, or that have a mission similar to the mission, of the program that is the subject of the report. (3) NEW PROGRAM BEING MANAGED UNDER AL- TERNATIVE COMPENSATORY CONTROL MEASURES DEFINED.—In this subsection, the term ‘‘new program being managed under alternative compensatory control measures’’ means a pro- gram in the Department that has not pre- viously been covered by a report under this subsection. (c) REPORT ON CHANGE IN CLASSIFICATION OR DECLASSIFICATION OF PROGRAMS.— (1) IN GENERAL.—Whenever a change in the classification of a program being managed under alternative compensatory control meas- ures in the Department is planned to be made, or whenever classified information concerning a program being managed under alternative compensatory control measures in the Depart- ment is to be declassified and made public, the Secretary shall submit to the congressional defense committees a report containing a de- scription of the proposed change, the reasons for the proposed change, and notice of any public announcement planned to be made with respect to the proposed change. (2) DEADLINE FOR REPORT.—Except as pro- vided in paragraph (3), a report required by paragraph (1) shall be submitted not less than 14 days before the date on which the proposed change or public announcement concerned is to occur. (3) EXCEPTION.—If the Secretary determines that because of exceptional circumstances the requirement in paragraph (2) cannot be met with respect to a proposed change or public announcement concerning a program covered by paragraph (1), the Secretary may submit the report required by that paragraph regard- ing the proposed change or public announce- ment at any time before the proposed change or public announcement is made, and shall in- clude in the report an explanation of the ex- ceptional circumstances. (d) MODIFICATION OF CRITERIA OR POLICY FOR DESIGNATING PROGRAMS UNDER ACCMS.—When- ever there is a modification or termination of the policy or criteria used for designating a pro- gram as a program being managed under alter- native compensatory control measures in the Department, the Secretary shall promptly no- tify the congressional defense committees of such modification or termination. Any such no- tification shall contain the reasons for the modification or termination and, in the case of a modification, the provisions of the policy or criteria as modified.