10 U.S.C. § 3794 — Release of technical data under Freedom

Page 2562 TITLE 10—ARMED FORCES § 3794 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. § 3794. Release of technical data under Freedom of Information Act: recovery of costs (a) IN GENERAL.—(1) The Secretary of Defense shall, if required to release technical data under section 552 of title 5 (relating to the Freedom of Information Act), release such technical data to the person requesting the release if the person pays all reasonable costs attributable to search, duplication, and review. (2) The Secretary of Defense shall prescribe regulations, pursuant to notice and receipt of public comment, specifying a uniform schedule of fees under this section. (b) CREDITING OF RECEIPTS.—An amount re- ceived under this section— (1) shall be retained by the Department of Defense or the element of the Department of Defense receiving the amount; and (2) shall be merged with and available for the same purpose and the same time period as the appropriation from which the costs in- curred in complying with requests for tech- nical data were paid. (c) WAIVER.—The Secretary of Defense shall waive the payment of costs required by sub- section (a) which are in an amount greater than the costs that would be required for such a re- lease of information under section 552 of title 5 if— (1) the request is made by a citizen of the United States or a United States corporation, and such citizen or corporation certifies that the technical data requested is required to en- able such citizen or corporation to submit an offer or determine whether it is capable of sub- mitting an offer to provide the product to which the technical data relates to the United States or a contractor with the United States (except that the Secretary may require the citizen or corporation to pay a deposit in an amount equal to not more than the cost of complying with the request, to be refunded upon submission of an offer by the citizen or corporation); (2) the release of technical data is requested in order to comply with the terms of an inter- national agreement; or (3) the Secretary determines, in accordance with section 552(a)(4)(A)(iii) of title 5, that such a waiver is in the interests of the United States. (Added Pub. L. 99–500, § 101(c) [title X, § 954(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–172, and Pub. L. 99–591, § 101(c) [title X, § 954(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–172, § 2328; Pub. L. 99–661, div. A, title IX, formerly title IV, § 954(a)(1), Nov. 14, 1986, 100 Stat. 3952, renumbered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–26, § 7(a)(7)(A), (B)(i), Apr. 21, 1987, 101 Stat. 278; renumbered § 3794, Pub. L. 116–283, div. A, title XVIII, § 1833(o)(2), Jan. 1, 2021, 134 Stat. 4234; Pub. L. 117–81, div. A, title XVII, § 1701(b)(12)(B), Dec. 27, 2021, 135 Stat. 2134.) 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 Prior sections 3794 to 3797 were repealed by Pub. L. 96–513, title II, § 213, title VII, § 701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981. Section 3794, added Pub. L. 86–616, § 3(a), July 12, 1960, 74 Stat. 389, authorized Secretary of the Army to re- move an officer from active list of Regular Army if his removal is recommended by a board of review and pro- vided that decision of Secretary in such a case is final and conclusive. See section 1184 of this title. Section 3795, added Pub. L. 86–616, § 3(a), July 12, 1960, 74 Stat. 389, provided that each officer under consider- ation for removal from active list of Regular Army under this chapter be given written notification, at least 30 days prior to a board of inquiry hearing, that he is being required to show cause for retention on ac- tive list, be allowed reasonable time to prepare a de- fense, be allowed to appear in person and by counsel at proceedings before board of inquiry, and be allowed full access to, and furnished copies of, records relevant to his case at all stages of proceedings, except records that Secretary determines be withheld in interests of national security, in which case, a summary, to extent national security permits, be furnished. See section 1185 of this title. Section 3796, added Pub. L. 86–616, § 3(a), July 12, 1960, 74 Stat. 389, authorized Secretary of the Army, at any time during proceedings under this chapter and before removal of an officer from active list of Regular Army, to grant that officer’s request for voluntary retire- ment, if he is otherwise qualified therefor, or for honor- able discharge with severance benefits. See section 1186 of this title. Section 3797, added Pub. L. 86–616, § 3(a), July 12, 1960, 74 Stat. 390, provided that no officer serve on a board under this chapter unless he holds a regular or tem- porary grade above lieutenant colonel, and is senior in regular grade to, and outranks, any officer considered by that board and that no person be a member of more than one board convened under this chapter for same officer. See section 1187 of this title. AMENDMENTS 2021—Pub. L. 116–283, § 1833(o)(2), as amended by Pub. L. 117–81, § 1701(b)(12)(B), renumbered section 2328 of this title as this section. 1987—Pub. L. 100–26, § 7(a)(7)(B)(i), substituted ‘‘Re- lease of technical data under Freedom of Information Act: recovery of costs’’ for ‘‘Release of technical data’’ in section catchline. Subsec. (a)(1). Pub. L. 100–26, § 7(a)(7)(A)(i)(I), sub- stituted ‘‘such technical data to the person requesting the’’ for ‘‘technical data to a person requesting such a’’. Pub. L. 100–26, § 7(a)(7)(A)(i)(II), substituted ‘‘search, duplication, and review’’ for ‘‘search and duplication’’. Subsec. (b). Pub. L. 100–26, § 7(a)(7)(A)(ii), substituted ‘‘Crediting of receipts’’ for ‘‘Disposition of costs’’ in heading. Subsec. (c)(3). Pub. L. 100–26, § 7(a)(7)(A)(iii), sub- stituted ‘‘section 552(a)(4)(A)(iii)’’ for ‘‘section 552(a)(4)(A)’’. 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 Ef- fective Date note below. Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation Page 2563 TITLE 10—ARMED FORCES § 3802 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 1987 AMENDMENT Pub. L. 100–26, § 12(d)(2), Apr. 21, 1987, 101 Stat. 289, provided that: ‘‘The amendment to section 2328 of such title [now 10 U.S.C. 3794] made by section 7(a)(7)(A)(i)(II) shall take effect on the same date and in the same manner as provided in section 1804(b) of Pub- lic Law 99–570 [set out as an Effective Date of 1986 Amendment note under section 552 of Title 5, Govern- ment Organization and Employees] for the amendment made by section 1803 of that Public Law to section 552a of title 5, United States Code [probably means amend- ment by section 1803 of Pub. L. 99–570 to section 552(a) of Title 5].’’ EFFECTIVE DATE Pub. L. 99–500, § 101(c) [title X, § 954(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–173, Pub. L. 99–591, § 101(c) [title X, § 954(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–173, and Pub. L. 99–661, div. A, title IX, formerly title IV, § 954(b), Nov. 14, 1986, 100 Stat. 3953, renumbered title IX by Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273, pro- vided that: ‘‘The amendments made by this section [en- acting this section] shall take effect at the end of the 90-day period beginning on the date of the enactment of this Act [Oct. 18, 1986].’’ CHAPTER 277—CONTRACT FINANCING Sec. 3801. Authority of agency. 3802. Payment. 3803. Security for advance payments. 3804. Conditions for progress payments. 3805. Payments for commercial products and com- mercial services. 3806. Action in case of fraud. 3807. Vesting of title in the United States. 3808. Certain Navy contracts. Editorial Notes PRIOR PROVISIONS A prior chapter 277 ‘‘CONTRACT FINANCING’’, as added by Pub. L. 115–232, div. A, title VIII, § 801(a), Aug. 13, 2018, 132 Stat. 1828, and consisting of reserved sec- tion 3801, was repealed by Pub. L. 116–283, div. A, title XVIII, § 1834(a), Jan. 1, 2021, 134 Stat. 4234. AMENDMENTS 2021—Pub. L. 117–81, div. A, title XVII, § 1701(n)(1)(A), Dec. 27, 2021, 135 Stat. 2145, amended Pub. L. 116–283, div. A, title XVIII, § 1834(a), Jan. 1, 2021, 134 Stat. 4234, which added this analysis, by adding item 3808. Amend- ment directing ‘‘adding at the following new item’’ was executed as if it had read ‘‘adding at the end the fol- lowing new item’’ to reflect the probable intent of Con- gress. § 3801. Authority of agency (a) PAYMENT AUTHORITY.—The head of any agency may— (1) make advance, partial, progress, or other payments under contracts for property or services made by the agency; and (2) insert in solicitations for procurement of property or services a provision limiting to small business concerns advance or progress payments. (b) PAYMENT DATES FOR CONTRACTORS THAT ARE SMALL BUSINESS CONCERNS.— (1) PRIME CONTRACTORS.—For a prime con- tractor (as defined in section 8701 of title 41) that is a small business concern (as defined in section 3 of the Small Business Act (15 U.S.C. 632)), the Secretary of Defense shall, to the fullest extent permitted by law, establish an accelerated payment date with a goal of 15 days after receipt of a proper invoice for the amount due. (2) SUBCONTRACTORS.—For a prime con- tractor that subcontracts with a small busi- ness concern, the Secretary of Defense shall, to the fullest extent permitted by law, estab- lish an accelerated payment date with a goal of 15 days after receipt of a proper invoice for the amount due if the prime contractor agrees to make payments to the subcontractor in ac- cordance with the accelerated payment date, to the maximum extent practicable, without any further consideration from or fees charged to the subcontractor. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1834(a), (b), Jan. 1, 2021, 134 Stat. 4234.) Editorial Notes CODIFICATION The text of subsec. (a) of section 2307 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1834(b), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 131; Pub. L. 85–800, § 9, Aug. 28, 1958, 72 Stat. 967; Pub. L. 103–355, title II, § 2001(a)(2), (c), Oct. 13, 1994, 108 Stat. 3301, 3302; Pub. L. 115–232, div. A, title VIII, § 852, Aug. 13, 2018, 132 Stat. 1884; Pub. L. 116–92, div. A, title XVII, § 1731(a)(40), Dec. 20, 2019, 133 Stat. 1814; Pub. L. 116–283, div. A, title VIII, § 815, Jan. 1, 2021, 134 Stat. 3750; Pub. L. 117–81, div. A, title VIII, § 814, Dec. 27, 2021, 135 Stat. 1823. AMENDMENTS 2021—Subsec. (a). Pub. L. 116–283, § 1834(b)(1)(A), (2), transferred subsec. (a) of section 2307 of this title to this section, struck out par. (1) designation before ‘‘The head of’’, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively. Former par. (2) of subsec. (a) redesignated subsec. (b). Subsec. (b). Pub. L. 116–283, § 1834(b)(1)(B), (3)(A)–(C)(i), redesignated par. (2) of subsec. (a) as sub- sec. (b), inserted subsec. heading, and redesignated sub- pars. (A) and (B) as pars. (1) and (2), respectively, and inserted par. headings. Subsec. (b)(2). Pub. L. 116–283, § 1834(b)(3)(C)(ii), which directed amendment of par. (2) by redesignating cls. (i) and (ii) as subpars. (A) and (B), respectively, could not be executed because of the amendment made by section 815(2) of Pub. L. 116–283, which struck out cls. (i) and (ii) in section 2307(a)(2)(B) of this title prior to its transfer and redesignation as subsec. (b)(2) of this section. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed im- plementation and applicability of existing law, see sec- tion 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title. § 3802. Payment (a) PREFERENCE FOR PERFORMANCE-BASED PAY- MENTS.—Whenever practicable, payments under section 3801 of this title shall be made using per- formance-based payments on any of the fol- lowing bases: (1) Performance measured by objective, quantifiable methods such as delivery of ac-