10 U.S.C. § 1599g — Public-private talent exchange

Page 1532 TITLE 10—ARMED FORCES § 1599g Chief Information Officer, and the Under Secretary with respect to such reviews, including such rec- ommendations as the Principal Cyber Advisor, the Chief Information Officer, and the Under Secretary may have for changes to the budget of the Department as a result of such reviews. ‘‘(j) DEFINITION OF ZERO-BASED REVIEW.—In this sec- tion, the term ‘zero-based review’ means a review in which an assessment is conducted with each item, posi- tion, or person costed anew, rather than in relation to its size or status in any previous budget.’’ ACTIONS PENDING FULL IMPLEMENTATION OF PLAN FOR CYBER MISSION FORCE POSITIONS Pub. L. 114–328, div. A, title XVI, § 1643(a), Dec. 23, 2016, 130 Stat. 2602, provided that: ‘‘Until the Secretary of Defense completes implementation of the authority in subsection (a) of section 1599f of title 10, United States Code, for United States Cyber Command work- force positions in accordance with the implementation plan required by subsection (d) of such section, the Sec- retary shall do each of the following: ‘‘(1) Notwithstanding sections 3309 through 3318 of title 5, United States Code, provide for and imple- ment an interagency transfer agreement between ex- cepted service position systems and competitive serv- ice position systems in military departments and De- fense Agencies concerned to satisfy the requirements for cyber workforce positions from among a mix of employees in the excepted service and the competi- tive service in such military departments and De- fense Agencies. ‘‘(2) Implement in the defense civilian cyber per- sonnel system a classification system commonly known as a ‘Rank-in-person’ classification system similar to such classification system used by the Na- tional Security Agency as of the date of the enact- ment of this Act [Dec. 23, 2016]. ‘‘(3) Approve direct hiring authority for cyber workforce positions up to the GG or GS–15 level in ac- cordance with the criteria in section 3304 of title 5, United States Code. ‘‘(4) Notwithstanding section 5333 of title 5, United States Code, authorize officials conducting hiring in the competitive service for cyber workforce positions to set starting salaries at up to a step-five level with no justification and at up to a step-ten level with jus- tification that meets published guidelines applicable to the excepted service.’’ § 1599g. Public-private talent exchange (a) ASSIGNMENT AUTHORITY.—Under regula- tions prescribed by the Secretary of Defense, the Secretary may, with the agreement of a private- sector organization and the consent of the em- ployee, arrange for the temporary assignment of an employee to such private-sector organiza- tion, or from such private-sector organization to a Department of Defense organization under this section. (b) AGREEMENTS.—(1) The Secretary of Defense shall provide for a written agreement among the Department of Defense, the private-sector orga- nization, and the employee concerned regarding the terms and conditions of the employee’s as- signment under this section. The agreement— (A) shall require that the employee of the Department of Defense, upon completion of the assignment, will serve in the Department of Defense, or elsewhere in the civil service if approved by the Secretary, for a period equal to twice the length of the assignment; (B) shall provide that if the employee of the Department of Defense or of the private-sector organization (as the case may be) fails to carry out the agreement, such employee shall be liable to the United States for payment of all expenses of the assignment, unless that failure was for good and sufficient reason, as determined by the Secretary of Defense; and (C) shall contain language ensuring that such employee of the Department does not im- properly use information that such employee knows relates to a Department acquisition or procurement for the benefit or advantage of the private-sector organization. (2) An amount for which an employee is liable under paragraph (1) shall be treated as a debt due the United States. (3) The Secretary may waive, in whole or in part, collection of a debt described in paragraph (2) based on a determination that the collection would be against equity and good conscience and not in the best interests of the United States, after taking into account any indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee. (c) TERMINATION.—An assignment under this section may, at any time and for any reason, be terminated by the Department of Defense or the private-sector organization concerned. (d) DURATION.—(1) An assignment under this section shall be for a period of not less than three months and not more than two years, re- newable up to a total of four years. No employee of the Department of Defense may be assigned under this section for more than a total of 4 years inclusive of all such assignments. (2) An assignment under this section may be for a period in excess of two years, but not more than four years, if the Secretary determines that such assignment is necessary to meet crit- ical mission or program requirements. (e) STATUS OF FEDERAL EMPLOYEES ASSIGNED TO PRIVATE-SECTOR ORGANIZATIONS.—(1) An em- ployee of the Department of Defense who is as- signed to a private-sector organization under this section shall be considered, during the pe- riod of assignment, to be on detail to a regular work assignment in the Department for all pur- poses. The written agreement established under subsection (b)(1) shall address the specific terms and conditions related to the employee’s contin- ued status as a Federal employee. (2) In establishing a temporary assignment of an employee of the Department of Defense to a private-sector organization, the Secretary of De- fense shall— (A) ensure that the normal duties and func- tions of such employee can be reasonably per- formed by other employees of the Department of Defense without the permanent transfer or reassignment of other personnel of the Depart- ment of Defense, including members of the armed forces; (B) ensure that the normal duties and func- tions of such employees are not, as a result of and during the course of such temporary as- signment, performed or augmented by con- tractor personnel in violation of the provi- sions of section 2461 of this title; and (C) certify that the temporary assignment of such employee shall not have an adverse or negative impact on mission attainment, warfighter support, or organizational capabili- ties associated with the assignment. (f) TERMS AND CONDITIONS FOR PRIVATE-SECTOR EMPLOYEES.—An employee of a private-sector Page 1533 TITLE 10—ARMED FORCES § 1599g organization who is assigned to a Department of Defense organization under this section— (1) shall continue to receive pay and benefits from the private-sector organization from which such employee is assigned and shall not receive pay or benefits from the Department of Defense, except as provided in paragraph (2); (2) is deemed to be an employee of the De- partment of Defense for the purposes of— (A) chapters 73 and 81 of title 5; (B) sections 201, 203, 205, 207, 208, 209, 603, 606, 607, 643, 654, 1905, and 1913 of title 18; (C) sections 1343, 1344, and 1349(b) of title 31; (D) the Federal Tort Claims Act and any other Federal tort liability statute; (E) the Ethics in Government Act of 1978; and (F) chapter 21 of title 41; (3) shall not have access to any trade secrets or to any other nonpublic information which is of commercial value to the private-sector organization from which such employee is as- signed; (4) may not perform work that is considered inherently governmental in nature; and (5) may not be used to circumvent the provi- sion of section 2461 of this title nor to cir- cumvent any limitation or restriction on the size of the Department’s workforce. (g) PROHIBITION AGAINST CHARGING CERTAIN COSTS TO THE FEDERAL GOVERNMENT.—A private- sector organization may not charge the Depart- ment or any other agency of the Federal Gov- ernment, as direct or indirect costs under a Fed- eral contract, the costs of pay or benefits paid by the organization to an employee assigned to a Department organization under this section for the period of the assignment. (h) CONSIDERATIONS.—In carrying out this sec- tion, the Secretary of Defense— (1) shall ensure that, of the assignments made under this section each year, at least 20 percent are from small business concerns (as defined by section 3703(e)(2)(A) of title 5); (2) shall take into consideration the ques- tion of how assignments under this section might best be used to help meet the needs of the Department of Defense with respect to the training of employees; and (3) shall take into consideration, where ap- plicable, areas of particular private sector ex- pertise, such as cybersecurity. (i) CONFLICTS OF INTEREST.—A private-sector organization that is temporarily assigned a member of the acquisition workforce under this section shall not be considered to have a conflict of interest with the Department of Defense sole- ly because of participation in the program es- tablished under this section. (j) FUNDING; USE OF DEFENSE ACQUISITION WORKFORCE DEVELOPMENT FUND.—Funds for the expenses for the program established under this section may be provided from amounts in the Department of Defense Acquisition Workforce Development Fund. Expenses for the program include— (1) notwithstanding section 1705(e)(5) of this title, the base salary of a civilian member of the acquisition workforce assigned to a pri- vate-sector organization under this section, during the period of that assignment; (2) expenses relating to assignment under this section of a member of the acquisition workforce away from the member’s regular duty station, including expenses for travel, per diem, and lodging; and (3) expenses for the administration of the program. (k) REPORT.—Each member of the acquisition workforce that participates in the program es- tablished under this section shall, upon comple- tion of such participation, submit to the Presi- dent of the Defense Acquisition University for inclusion in the report required under section 1746a(e) a description and evaluation of such participation. (Added Pub. L. 114–328, div. A, title XI, § 1104(a), Dec. 23, 2016, 130 Stat. 2445; amended Pub. L. 116–92, div. A, title VIII, § 863(a), title XI, § 1116, Dec. 20, 2019, 133 Stat. 1522, 1604; Pub. L. 116–283, div. A, title XI, § 1102(a), Jan. 1, 2021, 134 Stat. 3885; Pub. L. 117–263, div. A, title VIII, § 831(c), Dec. 23, 2022, 136 Stat. 2712.) Editorial Notes REFERENCES IN TEXT The Federal Tort Claims Act, referred to in subsec. (f)(2)(D), is title IV of act Aug. 2, 1946, ch. 753, 60 Stat. 842, which was classified principally to chapter 20 (§§ 921, 922, 931–934, 941–946) of former Title 28, Judicial Code and Judiciary. Title IV of act Aug. 2, 1946, was substantially repealed and reenacted as sections 1346(b) and 2671 et seq. of Title 28, Judiciary and Judicial Pro- cedure, by act June 25, 1948, ch. 646, 62 Stat. 992, the first section of which enacted Title 28. The Federal Tort Claims Act is also commonly used to refer to chapter 171 of Title 28, Judiciary and Judicial Proce- dure. For complete classification of title IV to the Code, see Tables. For distribution of former sections of Title 28 into the revised Title 28, see Table at the begin- ning of Title 28. The Ethics in Government Act of 1978, referred to in subsec. (f)(2)(E), is Pub. L. 95–521, Oct. 26, 1978, 92 Stat. 1824. Titles I, IV, and V of the Act were classified prin- cipally to the Appendix to Title 5, Government Organi- zation and Employees, and were substantially repealed and restated in chapter 131 (§ 13101 et seq.) of Title 5 by Pub. L. 117–286, §§ 3(c), 7, Dec. 27, 2022, 136 Stat. 4266, 4361. For complete classification of this Act to the Code, see Tables. For disposition of sections of the Act into chapter 131 of Title 5, see Disposition Table pre- ceding section 101 of Title 5. AMENDMENTS 2022—Subsec. (k). Pub. L. 117–263 added subsec. (k). 2021—Subsec. (b)(1)(C). Pub. L. 116–283, § 1102(a)(1), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: ‘‘shall contain language en- suring that such employee of the Department does not improperly use pre-decisional or draft deliberative in- formation that such employee may be privy to or aware of related to Department programing, budgeting, resourcing, acquisition, or procurement for the benefit or advantage of the private-sector organization.’’ Subsec. (f)(4). Pub. L. 116–283, § 1102(a)(2), amended par. (4) generally. Prior to amendment, par. (4) read as follows: ‘‘may perform work that is considered inher- ently governmental in nature only when requested in writing by the Secretary of Defense; and’’. 2019—Subsec. (e)(2)(A). Pub. L. 116–92, § 1116, inserted ‘‘permanent’’ after ‘‘without the’’. Subsecs. (i), (j). Pub. L. 116–92, § 863(a), added subsecs. (i) and (j). Page 1534 TITLE 10—ARMED FORCES [§ 1599h Statutory Notes and Related Subsidiaries APPLICATION OF PUBLIC-PRIVATE TALENT EXCHANGE PROGRAMS IN THE DEPARTMENT OF DEFENSE TO QUANTUM INFORMATION SCIENCES AND TECHNOLOGY RESEARCH Pub. L. 118–31, div. A, title II, § 220, Dec. 22, 2023, 137 Stat. 188, provided that: ‘‘(a) IN GENERAL.—Using the authority provided under section 1599g of title 10, United States Code, the Secretary of Defense shall seek to establish public-pri- vate talent exchange programs with private-sector en- tities working on quantum information sciences and technology research applications. ‘‘(b) MAXIMUM NUMBER OF PARTICIPANTS.—Each pub- lic-private talent exchange program established under subsection (a) may include not more than 10 program participants. ‘‘(c) PROGRAM PARTICIPANT DEFINED.—For purposes of subsection (b), the term ‘program participant’ in- cludes— ‘‘(1) an employee of the Department of Defense who is assigned to a private-sector organization pursuant to subsection (a); and ‘‘(2) an employee of a private-sector organization who is assigned to a Department of Defense organiza- tion pursuant to such subsection.’’ ENHANCEMENT OF PUBLIC-PRIVATE TALENT EXCHANGE PROGRAMS IN THE DEPARTMENT OF DEFENSE Pub. L. 116–283, div. A, title XI, § 1102(b)–(d), Jan. 1, 2021, 134 Stat. 3885, 3886, provided that: ‘‘(b) APPLICATION OF EXCHANGE AUTHORITY TO MOD- ERNIZATION PRIORITIES.—Not later than 90 days after the date of the enactment of this Act [Jan. 1, 2021], the Secretary of Defense shall take steps to ensure that the authority of the Secretary to carry out a public-private talent exchange program under section 1599g of title 10, United States Code (as amended by subsection (a)), is used to— ‘‘(1) carry out exchanges of personnel with private sector entities that are working on the moderniza- tion priorities of the Department of Defense; and ‘‘(2) carry out exchanges in— ‘‘(A) the office of the Under Secretary of Defense for Research and Engineering; ‘‘(B) the office of the Chief Information Officer of the Department of Defense; ‘‘(C) each Armed Force under the jurisdiction of the Secretary of a military department; and ‘‘(D) any other organizations or elements of the Department of Defense the Secretary determines appropriate. ‘‘(c) CONFLICTS OF INTEREST.—The Secretary shall im- plement a system to identify, mitigate, and manage any conflicts of interests that may arise as a result of an individual’s participation in a public-private talent exchange under section 1599g of title 10, United States Code. ‘‘(d) TREATMENT OF PROGRAM PARTICIPANTS.—The Secretary of Defense, in consultation with each Sec- retary of a military department, shall develop prac- tices to ensure that participation by a member of an Armed Force under the jurisdiction of the Secretary of a military department in an public-private talent ex- change under section 1599g of title 10, United States Code, is taken into consideration in subsequent assign- ments.’’ [§ 1599h. Renumbered § 4092] § 1599i. Recruitment incentives for placement at remote locations (a) RECRUITMENT INCENTIVE.— (1) IN GENERAL.—An individual appointed to a position in the Department of Defense at a covered location may be paid a recruitment incentive in connection with such appoint- ment. (2) AMOUNT.—The amount of a recruitment incentive payable to an individual under this subsection may not exceed the amount equal to— (A) 25 percent of the annual rate of basic pay of the employee for the position con- cerned as of the date on which the service period in such position agreed to by the indi- vidual under paragraph (3) commences; mul- tiplied by (B) the number of years (including frac- tions of a year) of such service period (not to exceed four years). (3) SERVICE AGREEMENT.—To receive a re- cruitment incentive under this subsection, an individual appointed to a position under para- graph (1) shall enter into an agreement with the Secretary of Defense to complete a period of service at the covered location. The period of obligated service of the individual at such location under the agreement may not exceed four years. The agreement shall include such repayment or alternative employment obliga- tions as the Secretary considers appropriate for failure of the individual to complete the period of obligated service specified in the agreement. (4) COVERED LOCATIONS DEFINED.—In this sec- tion, a covered location is a location for which the Secretary of Defense has determined that critical hiring needs are not being met due to the geographic remoteness or isolation or ex- treme climate conditions of the location. (b) SUNSET.—Effective on September 30, 2022, the authority provided under subsection (a) shall expire. (Added Pub. L. 116–283, div. A, title XI, § 1120(a), Jan. 1, 2021, 134 Stat. 3898.) Statutory Notes and Related Subsidiaries OUTCOME MEASUREMENTS Pub. L. 116–283, div. A, title XI, § 1120(b), Jan. 1, 2021, 134 Stat. 3899, provided that: ‘‘The Secretary of Defense shall develop outcome measurements to evaluate the effect of the authority provided under subsection (a) of section 1599i of title 10, United States Code, as added by subsection (a), and any relocation incentives provided under subsection (b) of such section.’’ § 1599j. Restricted reports of incidents of adult sexual assault (a) RESTRICTED REPORTS.—The Secretary of Defense may provide a civilian employee of the Department of Defense an opportunity to sub- mit to an individual described in subsection (d) a restricted report of an alleged incident of adult sexual assault for the purpose of assisting the employee in obtaining information and ac- cess to authorized victim support services pro- vided by the Department. (b) RESTRICTIONS ON DISCLOSURES AND INITI- ATING INVESTIGATIONS.—Unless the Secretary de- termines that a disclosure is necessary to pre- vent or mitigate a serious and imminent safety threat to the employee submitting the report or to another person, a restricted report submitted pursuant to subsection (a) shall not— (1) be disclosed to the supervisor of the em- ployee or any other management official; or