10 U.S.C. § 4873

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 4873 - Additional requirements pertaining to printed circuit boards

(a) IN GENERAL.-

(1) Beginning on the date determined under paragraph (3), the Secretary of Defense may not acquire a covered printed circuit board from a covered nation.

(2) Paragraph (1) shall not apply with respect to any acquisition of supplies or services below the micro-purchase threshold under section 3573 of this title.

(3) Paragraph (1) shall take effect on January 1, 2027.

(b) WAIVER.-

(1) The Secretary may waive the prohibition under subsection (a) if the Secretary determines in writing that-

(A) there are no significant national security concerns regarding counterfeiting, quality, or unauthorized access created by such waiver;

(B) the waiver is required to support national security; and

(C) a covered printed circuit board of satisfactory quality and sufficient quantity, in the required form, cannot be procured as and when needed from nations other than a covered nation at reasonable cost, excluding comparisons with non-market economies.

(2) Not later than 10 days after the Secretary provides a waiver under paragraph (1), the Secretary shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a written notice setting forth the reasoning for the waiver, together with a copy of the waiver itself.

(c) DEFINITIONS.-In this section:

(1) COVERED NATION.-The term "covered nation" means-

(A) the Democratic People's Republic of North Korea;

(B) the People's Republic of China;

(C) the Russian Federation; and

(D) the Islamic Republic of Iran.

(2) COVERED PRINTED CIRCUIT BOARD.-The term "covered printed circuit board" means any specified type of partially manufactured or complete bare printed circuit board or fully or partially assembled printed circuit board that-

(A) performs a mission critical function in any product or service that is not a commercial product or commercial service; or

(B) is a component of-

(i) a defense security system; or

(ii) a system, other than a defense security system, that transmits or stores information and which the Secretary identifies as national security sensitive in the contract under which such printed circuit board is acquired.

(3) SECRETARY.-The term "Secretary" means the Secretary of Defense.

(4) COMMERCIAL PRODUCT; COMMERCIAL SERVICE; COMMERCIALLY AVAILABLE OFF-THE SHELF ITEM.-The terms "commercial product", "commercial service", and "commercially available off-the-shelf item" have the meanings given such terms in sections 103, 103a, and 104 of title 41, respectively.

(5) DEFENSE SECURITY SYSTEM.-

(A) The term "defense security system" means an information system (including a telecommunications system) used or operated by the Department of Defense, by a contractor of the Department, or by another organization on behalf of the Department, the function, operation, or use of which-

(i) involves command and control of an armed force;

(ii) involves equipment that is an integral part of a weapon or weapon system; or

(iii) subject to subparagraph (B), is critical to the direct fulfillment of military missions.

(B) Subparagraph (A)(iii) does not include a system that is to be used for routine administrative and business applications (including payroll, finance, logistics, and personnel management applications).

(6) SPECIFIED TYPE.-The term "specified type" means a printed circuit board that is-

(A) a component of an electronic device that facilitates the routing, connecting, transmitting or securing of data and is commonly connected to a network, and

(B) any other end item, good, or product specified by the Secretary in accordance with subsection (d)(2).

(d) RULEMAKING.-

(1) The Secretary may issue rules providing that subsection (a) may not apply with respect to an acquisition of commercial products, commercial services, and commercially available off-the-shelf items if-

(A) the contractor is capable of meeting minimum requirements that the Secretary deems necessary to provide for the security of national security networks and weapon systems; including, at a minimum, compliance with section 224 of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116-92; 10 U.S.C. 2302 note); and

(B) either-

(i) the Government and the contractor have agreed to a contract requiring the contractor to take certain actions to ensure the integrity and security of the item, including protecting the item from unauthorized access, use, disclosure, disruption, modification, or destruction; or

(ii) the Secretary has determined that the contractor has adopted such procedures, tools, and methods for identifying the sources of components of such item, based on commercial best practices, that meet or exceed the applicable trusted supply chain and operational security standards of the Department of Defense.

(2) The Secretary may issue rules specifying end items, goods, and products for which a printed circuit board that is a component thereof shall be a specified type if the Secretary has promulgated final regulations, after an opportunity for notice and comment that is not less than 12 months, implementing this section.

(3) In carrying out this section, the Secretary shall, to the maximum extent practicable, avoid imposing contractual certification requirements with respect to the acquisition of commercial products, commercial services, or commercially available off-the-shelf items.

(e) APPLICABILITY.-This section shall apply only with respect to contracts entered into after the issuance of a final rule implementing this section.

(f) RULE OF CONSTRUCTION.-Nothing in this section shall be construed to prohibit the Department of Defense from entering into a contract with an entity that connects to the facilities of a third party, for the purposes of backhaul, roaming, or interconnection arrangements, on the basis of the noncompliance by the third party with the provisions of this section or use of equipment or services that do not route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.

10 U.S.C. § 4873

Added Pub. L. 116-283, div. A, title VIII, §841(a), Jan. 1, 2021, 134 Stat. 3762, §2533d; amended Pub. L. 117-81, div. A, title VIII, §851(a), Dec. 27, 2021, 135 Stat. 1844; renumbered §4873 and amended Pub. L. 117-81, div. A, title XVII, §1701(e)(2)(A), Dec. 27, 2021, 135 Stat. 2138.

EDITORIAL NOTES

AMENDMENTS2021- Pub. L. 117-81 renumbered section 2533d of this title as this section. Subsec. (a)(1). Pub. L. 117-81, §851(a)(1)(A), substituted "the date determined under paragraph (3)" for "January 1, 2023". Subsec. (a)(2). Pub. L. 117-81 substituted "section 3573" for "section 2338".Subsec. (a)(3). Pub. L. 117-81, §851(a)(1)(B), added par. (3). Subsec. (c)(2). Pub. L. 117-81, §851(a)(2)(A)(i), inserted "specified type of" after "means any" in introductory provisions. Subsec. (c)(2)(A). Pub. L. 117-81, §851(a)(2)(A) (ii), struck out "(as such terms are defined under sections 103 and 103a of title 41, respectively)" after "commercial service". Subsec. (c)(2)(B). Pub. L. 117-81, §851(a)(2)(A) (iii), amended subpar. (b) generally. Prior to amendment, subpar. (B) read as follows: "the Secretary designates as a covered printed circuit board, after reasonable notice, based on a determination that the designation is required to support national security."Subsec. (c)(4) to (6). Pub. L. 117-81, §851(a)(2)(B), added pars. (4) to (6).Subsec. (d). Pub. L. 117-81, §851(a)(3), amended subsec. (d) generally. Prior to amendment, text read as follows: "Not later than May 1, 2022, the Secretary shall promulgate regulations, after an opportunity for notice and comment, implementing this section."

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 2021 AMENDMENT Amendment by section 1701(e)(1)(A) of Pub. L. 117-81, renumbering section 2358d of this title as this section, deemed to have taken effect immediately before section 1881 of Pub. L. 116-283, subsec. (a) of which had repealed chapter 148 of this title, where section 2358d was located. See section 881(a) of Pub. L. 117-263, set out as a note under section 4027 of this title.

TRUSTED SUPPLY Pub. L. 116-283, div. A, title VIII, §841(c), Jan. 1, 2021, 134 Stat. 3764, provided that: "The Secretary of Defense shall apply the requirements of section 224 of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116-92; 10 U.S.C. 2302 note [now 10 U.S.C. 4501 note prec.]) to the acquisition of covered printed circuit boards (as such term is defined under [former] section 2533d(c) of title 10, United States Code, [now 10 U.S.C. 4873(c)] as added by this section)."

supplies

The term "supplies" includes material, equipment, and stores of all kinds.