Us Code § 4067 - Technology protection features activities

§ 4067. Technology protection features activities

(a) Activities.—The Secretary of Defense shall carry out activities to develop and incorporate technology protection features in a designated system during the research and development phase of such system.

(b) Cost-sharing.—(1) Any contract for the design or development of a system resulting from activities under subsection (a) for the purpose of enhancing or enabling the exportability of the system, either for the development of program protection strategies for the system or the design and incorporation of exportability features into the system, shall include a cost-sharing provision that requires the contractor to bear half of the cost of such activities, or such other portion of such cost as the Secretary considers appropriate upon showing of good cause.

(2) The Secretary may deem the portion of the costs of the contractor described in paragraph (1) with respect to a designated system as allowable independent research and development costs under the regulations issued under section 3762 of this title if—

(A) the designated system receives Milestone B approval; and

(B) the Secretary determines that doing so would further the purposes of this section.

(c) Definitions.—In this section:

(1) The term "designated system" means any system (including a major system, as defined in section 3041 of title 10, United States Code) that the Under Secretary of Defense for Acquisition and Sustainment designates for purposes of this section.

(2) The term "independent research and development costs" has the meaning given the term in section 31.205-18 of title 48, Code of Federal Regulations.

(3) The term "Milestone B approval" has the meaning given the term in section 4172(e)(7) of this title.

(4) The term "technology protection features" means the technical modifications necessary to protect critical program information, including anti-tamper technologies and other systems engineering activities intended to prevent or delay exploitation of critical technologies in a designated system.

(Added Pub. L. 115–232, div. A, title II, §223(a), Aug. 13, 2018, 132 Stat. 1682, §2357; renumbered §4067 and amended Pub. L. 116–283, div. A, title XVIII, §§1841(c), 1842(b), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4243, 4244, 4294; Pub. L. 117–81, div. A, title VIII, §831(a), title XVII, §1701(u)(2)(D), (3)(B), Dec. 27, 2021, 135 Stat. 1832, 2151, 2152.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1842(b), as amended by Pub. L. 117–81, §1701(u)(3)(B), renumbered section 2357 of this title as this section.

Pub. L. 116–283, §1841(c), which directed the renumbering of section 2357 of this title as section 4009 instead of this section, was amended generally by Pub. L. 117–81, §1701(u)(2)(D), effective as if included therein, so that such transfer was no longer directed.

Subsec. (b). Pub. L. 117–81, §831(a)(1), designated existing provisions as par. (1) and added par. (2).

Subsec. (b)(2). Pub. L. 116–283, §1883(b)(2), substituted "section 3762" for "section 2372" in introductory provisions.

Subsec. (c)(1). Pub. L. 116–283, §1883(b)(2), substituted "section 3041" for "section 2302(5)".

Subsec. (c)(2). Pub. L. 117–81, §831(a)(2)(B), added par. (2). Former par. (2) redesignated (4).

Subsec. (c)(3). Pub. L. 116–283, §1883(b)(2), substituted "section 4172(e)(7)" for "section 2366(e)(7)".

Pub. L. 117–81, §831(a)(2)(B), added par. (3).

Subsec. (c)(4). Pub. L. 117–81, §831(a)(2)(A), redesignated par. (2) as (4).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included 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 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.

Conforming Regulations

Pub. L. 117–81, div. A, title VIII, §831(b), Dec. 27, 2021, 135 Stat. 1832, provided that: "Not later than 120 days after the date of the enactment of this Act [Dec. 27, 2021], the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to conform with section 2357 of title 10, United States Code [now 10 U.S.C. 4067], as amended by subsection (a)."

Updated Guidance on Planning for Exportability Features for Future Programs

Pub. L. 118–31, div. A, title VIII, §810, Dec. 22, 2023, 137 Stat. 321, provided that:

"(a) Program Guidance on Planning for Exportability Features.—Not later than one year after the date of the enactment of this Act [Dec. 22, 2023], the Under Secretary of Defense for Acquisition and Sustainment shall ensure that the program guidance for major defense acquisition programs (as defined in section 4201 of title 10, United States Code) and for acquisition programs and projects that are carried out using the rapid fielding or rapid prototyping acquisition pathway under section 804 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 3201 note prec.) is revised to integrate planning for exportability features under section 4067 of title 10, United States Code, including—

"(1) for major defense acquisition programs, an assessment of such programs to identify potential exportability needs; and

"(2) for technologies under an acquisition program or project carried out using the rapid fielding or rapid prototyping acquisition pathway that are transitioned to a major capability acquisition program, an assessment of potential exportability needs of such technologies not later than one year after the date of such transition.

"(b) Revision of Guidance for Program Protection Plans.—Not later than three years after the date of the enactment of this Act, the Under Secretary shall revise guidance for program protection plans to integrate a requirement to determine exportability for the programs covered by such plans."

SUBCHAPTER II—PERSONNEL

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(u)(3)(A), Dec. 27, 2021, 135 Stat. 2152, amended Pub. L. 116–283, div. A, title XVIII, §1842(a), Jan. 1, 2021, 134 Stat. 4244, which added this chapter, by adding subchapter heading. Heading was editorially conformed to the style used in this title.

Statutory Notes and Related Subsidiaries

Pilot Program on Dynamic Shaping of the Workforce To Improve the Technical Skills and Expertise at Certain Department of Defense Laboratories

Pub. L. 114–92, div. A, title XI, §1109, Nov. 25, 2015, 129 Stat. 1028, as amended by Pub. L. 115–232, div. A, title XI, §1112(b), Aug. 13, 2018, 132 Stat. 2012; Pub. L. 117–81, div. A, title II, §215(d)(3), Dec. 27, 2021, 135 Stat. 1593; Pub. L. 117–263, div. A, title XI, §1110, Dec. 23, 2022, 136 Stat. 2820, provided that:

"(a) Pilot Program Required.—The Secretary of Defense shall establish a pilot program to utilize the authorities specified in subsection (b) at the Department of Defense laboratories specified in subsection (c) to provide the directors of such laboratories the authority to dynamically shape the mix of technical skills and expertise in the workforces of such laboratories in order to achieve one or more of the following:

"(1) To meet organizational and Department-designated missions in the most cost-effective and efficient manner.

"(2) To upgrade and enhance the scientific quality of the workforces of such laboratories.

"(3) To shape such workforces to better respond to such missions.

"(4) To reduce the average unit cost of such workforces.

"(b) Workforce Shaping Authorities.—The authorities that shall be available for use by the director of a Department of Defense laboratory under the pilot program are the following:

"(1) Flexible length and renewable term technical appointments.—

"(A) In general.—Subject to the provisions of this paragraph, authority otherwise available to the director by law (and within the available budgetary resources of the laboratory) to make appointments as follows:

"(i) Appointment of qualified scientific and technical personnel who are not current Department of Defense civilian employees into any scientific or technical position in the laboratory for a period of more than one year but not more than six years.

"(ii) Appointment of qualified scientific and technical personnel who are Department civilian employees in term appointments into any scientific or technical position in the laboratory for a period of more than one year but not more than six years.

"(B) Benefits.—Personnel appointed under this paragraph shall be provided with benefits comparable to those provided to similar employees at the laboratory concerned, including professional development opportunities, eligibility for all laboratory awards programs, and designation as 'status applicants' for the purposes of eligibility for positions in the Federal service.

"(C) Extension of appointments.—The appointment of any individual under this paragraph may be extended without limit in up to six year increments at any time during any term of service under such conditions as the director concerned shall establish for purposes of this paragraph.

"(2) Reemployment of annuitants.—Authorities to authorize the director of any science and technology reinvention laboratory (in this section referred to as 'STRL') to reemploy annuitants in accordance with section 9902(g) of title 5, United States Code, except that as a condition for reemployment the director may authorize the deduction from the pay of any annuitant so reemployed of an amount up to the amount of the annuity otherwise payable to such annuitant allocable to the period of actual employment of such annuitant, which amount shall be determined in a manner specified by the director for purposes of this paragraph to ensure the most cost effective execution of designated missions by the laboratory while retaining critical technical skills.

"(3) Early retirement incentives.—Authorities to authorize the director of any STRL to authorize voluntary early retirement of employees in accordance with section 8336 of title 5, United States Code, without regard to section 8336(d)(2)(D) or 3522 of such title, and with employees so separated voluntarily from service.

"(4) Separation incentive pay.—Authorities to authorize the director of any STRL to pay voluntary separation pay to employees in accordance with section 8414(b)(1)(B) of title 5, United States Code, without regard to clause (iv) or (v) of such section or section 3522 of such title, and with—

"(A) employees so separated voluntarily from service under regulations prescribed by the Secretary of Defense for purposes of the pilot program; and

"(B) payments to employees so separated authorized under section 3523 of such title without regard to—

"(i) the plan otherwise required by section 3522 of such title; and

"(ii) paragraph (1) or (3) of section 3523(b) of such title.

"(c) Laboratories.—The Department of Defense laboratories specified in this subsection are the laboratories designated under section 4121(b) of title 10, United States Code.

"(d) Expiration.—

"(1) In general.—The authority in this section shall expire on December 31, 2027.

"(2) Continuation of authorities exercised before termination.—The expiration in paragraph (1) shall not be construed to effect the continuation after the date specified in paragraph (1) of any term of employment or other benefit authorized under this section before that date in accordance with the terms of such authorization."

Pilot Program on Assignment to Defense Advanced Research Projects Agency of Private Sector Personnel With Critical Research and Development Expertise

Pub. L. 113–291, div. A, title II, §232, Dec. 19, 2014, 128 Stat. 3332, as amended by Pub. L. 115–91, div. A, title X, §1051(t)(1), Dec. 12, 2017, 131 Stat. 1566; Pub. L. 117–286, §4(c)(20), Dec. 27, 2022, 136 Stat. 4356, provided that:

"(a) Pilot Program Authorized.—In accordance with the provisions of this section, the Director of the Defense Advanced Research Projects Agency may carry out a pilot program to assess the feasibility and advisability of temporarily assigning covered individuals with significant technical expertise in research and development areas of critical importance to defense missions to the Defense Advanced Research Projects Agency to lead research or development projects of the Agency.

"(b) Assignment of Covered Individuals.—

"(1) Number of individuals assigned.—Under the pilot program, the Director may assign covered individuals to the Agency as described in subsection (a), but may not have more than five covered individuals so assigned at any given time.

"(2) Period of assignment.—

"(A) Except as provided in subparagraph (B), the Director may, under the pilot program, assign a covered individual described in subsection (a) to lead research and development projects of the Agency for a period of not more than two years.

"(B) The Director may extend the assignment of a covered individual for one additional period of not more than two years as the Director considers appropriate.

"(3) Application of certain provisions of law.—

"(A) Except as otherwise provided in this section, the Director shall carry out the pilot program in accordance with the provisions of subchapter VI of chapter 33 of title 5, United States Code, except that, for purposes of the pilot program, the term 'other organization', as used in such subchapter, shall be deemed to include a covered entity.

"(B) A covered individual employed by a covered entity who is assigned to the Agency under the pilot program is deemed to be an employee of the Department of Defense for purposes of the following provisions of law:

"(i) Chapter 73 of title 5, United States Code.

"(ii) Sections 201, 203, 205, 207, 208, 209, 603, 606, 607, 643, 654, 1905, and 1913 of title 18, United States Code.

"(iii) Sections 1343, 1344, and 1349(b) of title 31, United States Code.

"(iv) Chapter 171 of title 28, United States Code (commonly known as the 'Federal Tort Claims Act'), and any other Federal tort liability statute.

"(v) Chapter 131 of title 5, United States Code.

"(vi) Section 1043 of the Internal Revenue Code of 1986 [26 U.S.C. 1043].

"(vii) Chapter 21 of title 41, United States Code.

"(4) Pay and supervision.—A covered individual employed by a covered entity who is assigned to the Agency under the pilot program—

"(A) may continue to receive pay and benefits from such covered entity with or without reimbursement by the Agency;

"(B) is not entitled to pay from the Agency; and

"(C) shall be subject to supervision by the Director in all duties performed for the Agency under the pilot program.

"(c) Conflicts of Interest.—

"(1) Practices and procedures required.—The Director shall develop practices and procedures to manage conflicts of interest and the appearance of conflicts of interest that could arise through assignments under the pilot program.

"(2) Elements.—The practices and procedures required by paragraph (1) shall include, at a minimum, the requirement that each covered individual assigned to the Agency under the pilot program shall sign an agreement that provides for the following:

"(A) The nondisclosure of any trade secrets or other nonpublic or proprietary information which is of commercial value to the covered entity from which such covered individual is assigned.

"(B) The assignment of rights to intellectual property developed in the course of any research or development project under the pilot program—

"(i) to the Agency and its contracting partners in accordance with applicable provisions of law regarding intellectual property rights; and

"(ii) not to the covered individual or the covered entity from which such covered individual is assigned.

"(C) Such additional measures as the Director considers necessary to carry out the program in accordance with Federal law.

"(d) Prohibition on Charges by Covered Entities.—A covered entity may not charge the Federal Government, as direct or indirect costs under a Federal contract, the costs of pay or benefits paid by the covered entity to a covered individual assigned to the Agency under the pilot program.

"(e) Termination of Authority.—The authority provided in this section shall expire on September 30, 2025, except that any covered individual assigned to the Agency under the pilot program shall continue in such assignment until the terms of such assignment have been satisfied.

"(f) Definitions.—In this section:

"(1) The term 'covered individual' means any individual who is employed by a covered entity.

"(2) The term 'covered entity' means any non-Federal, nongovernmental entity that, as of the date on which a covered individual employed by the entity is assigned to the Agency under the pilot program, is a nontraditional defense contractor (as defined in section 2302 of title 10, United States Code [see 10 U.S.C. 3014])."