- § 4651. Expenditure of appropriations: limitation
- § 4652. Prohibition on use of funds for documenting economic or employment impact of certain acquisition programs
- § 4653. Prohibition on use of funds to relieve economic dislocations
- § 4654. Prohibition against doing business with certain offerors or contractors
- § 4655. Prohibition of contractors limiting subcontractor sales directly to the United States
- § 4656. Prohibition on persons convicted of defense-contract related felonies and related criminal penalty on defense contractors
- § 4657. Prohibition on criminal history inquiries by contractors prior to conditional offer
- § 4658. Debarment of persons convicted of fraudulent use of “Made in America” labels
- § 4659. Prohibition on contracting with entities that comply with the secondary Arab boycott of Israel
- § 4660. Prohibition on collection of political information
- § 4661. Prohibition on certain procurements from the Xinjiang Uyghur Autonomous Region
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10 U.S. Code Chapter 363 - PROHIBITION AND PENALTIES
Editorial Notes
Prior Provisions
A prior chapter 363 “PROHIBITIONS AND PENALTIES”, consisting of reserved section 4651, was repealed by Pub. L. 116–283, div. A, title XVIII, § 1862(a), Jan. 1, 2021, 134 Stat. 4277.
Another prior chapter 363, consisting of sections 3841 to 3855 relating to separation or transfer to the Retired Reserve, some of which had previously been repealed, was repealed in its entirety by Pub. L. 103–337, div. A, title XVI, §§ 1629(a)(3), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996.
Amendments
2022—Pub. L. 117–263, div. A, title VIII, § 855(c), Dec. 23, 2022, 136 Stat. 2723, added item 4661.
Statutory Notes and Related Subsidiaries
Prohibition on Certain Procurements From the Xinjiang Uyghur Autonomous Region
Pub. L. 117–81, div. A, title VIII, § 848, Dec. 27, 2021, 135 Stat. 1843, relating to procurement of products mined, produced, or manufactured wholly or in part by forced labor from Xinjiang Uyghur Autonomous Region of the People’s Republic of China, was repealed by Pub. L. 117–263, div. A, title VIII, § 855(a), Dec. 23, 2022, 136 Stat. 2723. See section 4661 of this title.
Employment Transparency Regarding Individuals Who Perform Work in the People’s Republic of China
Pub. L. 117–81, div. A, title VIII, § 855, Dec. 27, 2021, 135 Stat. 1850, provided that:
“(a) Disclosure Requirements.—
“(1) Initial disclosures.—
The Secretary of Defense shall require each covered entity to disclose to the Secretary of Defense if the entity employs one or more individuals who will perform work in the People’s Republic of China on a covered contract when the entity submits a bid or proposal for such covered contract, except that such disclosure shall not be required to the extent that the Secretary determines that such disclosure would not be in the interest of national security.
“(2) Recurring disclosures.—
For each of fiscal years 2023 and 2024, the Secretary of Defense shall require each covered entity that is a party to one or more covered contracts in the fiscal year to disclose to the Secretary if the entity employs one or more individuals who perform work in the People’s Republic of China on any such contract.
“(3) Matters to be included.—If a covered entity required to make a disclosure under paragraph (1) or (2) employs any individual who will perform work in the People’s Republic of China on a covered contract, such disclosure shall include—
“(A)
the total number of such individuals who will perform work in the People’s Republic of China on the covered contracts funded by the Department of Defense; and
“(B)
a description of the physical presence in the People’s Republic of China where work on the covered contract will be performed.
“(b) Funding for Covered Entities.—
The Secretary of Defense may not award a covered contract to, or renew a covered contract with, a covered entity unless such covered entity has submitted each disclosure such covered entity is required to submit under subsection (a).
“(c) Semi-annual Briefing.—
Beginning on January 1, 2023, the Secretary of Defense shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] semi-annual briefings that summarize the disclosures received by the Department over the previous 180 days pursuant to this section, and such briefings may be classified.
“(d) Definitions.—In this section:
“(1) Covered contract.—
The term ‘covered contract’ means any Department of Defense contract or subcontract with a value in excess of $5,000,000, excluding contracts for commercial products or services.
“(2) Covered entity.—
The term ‘covered entity’ means any corporation, company, limited liability company, limited partnership, business trust, business association, or other similar entity, including any subsidiary thereof, performing work on a covered contract in the People’s Republic of China, including by leasing or owning real property used in the performance of the covered contract in the People’s Republic of China.
“(e) Effective Date.—
This section shall take effect on July 1, 2022.”
Prohibition on Procurements From Chinese Military Companies
Pub. L. 109–163, div. A, title XII, § 1211, Jan. 6, 2006, 119 Stat. 3461, as amended by Pub. L. 112–81, div. A, title XII, § 1243(a), (b), Dec. 31, 2011, 125 Stat. 1645; Pub. L. 114–328, div. A, title XII, § 1296, Dec. 23, 2016, 130 Stat. 2562; Pub. L. 117–263, div. A, title VIII, § 857(b), Dec. 23, 2022, 136 Stat. 2729, provided that:
“(a) Prohibition.—
The Secretary of Defense may not procure goods or services described in subsection (b), through a contract or any subcontract (at any tier) under a contract, from any Communist Chinese military company, any Chinese military company, any Non-SDN Chinese military-industrial complex company, or any other covered company.
“(b) Goods and Services Covered.—
“(1) In general.—For purposes of subsection (a), and except as provided in paragraph (2), the goods and services described in this subsection are goods and services—
“(A)
on the munitions list of the International Traffic in Arms Regulations; or
“(B) on the Commerce Control List that—
“(i)
are classified in the 600 series; or
“(ii)
contain strategic and critical materials, rare earth elements, or energetic materials used to manufacture missiles or munitions.
“(2) Exceptions.—Goods and services described in this subsection do not include goods or services procured—
“(A)
in connection with a visit by a vessel or an aircraft of the United States Armed Forces to the People’s Republic of China;
“(B)
for testing purposes; or
“(C)
for purposes of gathering intelligence.
“(c) Waiver Authorized.—
The Secretary of Defense may waive the prohibition in subsection (a) if the Secretary determines that such a waiver is necessary for national security purposes and the Secretary submits to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report described in subsection (d) not less than 15 days before issuing the waiver under this subsection.
“(d) Report.—
The report referred to in subsection (c) is a report that identifies the specific reasons for the waiver issued under subsection (c) and includes recommendations as to what actions may be taken to develop alternative sourcing capabilities in the future.
“(e) Definitions.—In this section:
“(1)
The term ‘Chinese military company’ has the meaning given that term by section 1260H(d)(1) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283; 10 U.S.C. 113 note).
“(2)
The term ‘Commerce Control List’ means the list maintained by the Bureau of Industry and Security and set forth in Supplement No. 1 to part 774 of the Export Administration Regulations.
“(3)
The term ‘Communist Chinese military company’ has the meaning provided that term by section 1237(b)(4) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 [Pub. L. 105–261] (50 U.S.C. 1701 note).
“(4)
The term ‘Export Administration Regulations’ has the meaning given that term in section 1742 of the Export Control Reform Act of 2018 (50 U.S.C. 4801).
“(5)
The term ‘munitions list of the International Traffic in Arms Regulations’ means the United States Munitions List contained in part 121 of subchapter M of title 22 of the Code of Federal Regulations.
“(6) The term ‘Non-SDN Chinese military-industrial complex company’ means any entity on the Non-SDN Chinese Military-Industrial Complex Companies List—
“(A)
established pursuant to Executive Order 13959 (50 U.S.C. 1701 note; relating to addressing the threat from securities investments that finance Communist Chinese military companies), as amended before, on, or after the date of the enactment of the [James M. Inhofe] National Defense Authorization Act for Fiscal Year 2023 [Dec. 23, 2022]; and
“(B)
maintained by the Office of Foreign Assets Control of the Department of the Treasury.
“(7) The term ‘other covered company’ means a company that—
“(A)
is owned or controlled by the government of the People’s Republic of China; and
“(B)
is certified by the Secretary of Defense to the congressional defense committees to be a company that must be covered by this section for national security reasons.
“(8)
The term ‘strategic and critical materials’ means materials designated as strategic and critical under section 3(a) of the Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98b(a)).
“(f) Effective Date.—
With respect to goods and services described in clause (ii) of subparagraph (b)(1)(B), the prohibition shall take effect 180 days after the date on which the Secretary of Defense certifies to the congressional defense committees that a sufficient number of commercially viable providers exist outside of the People’s Republic of China that collectively can provide the Department of Defense with satisfactory quality and sufficient quantity of such goods or services as and when needed at United States market prices.”
[Pub. L. 112–81, div. A, title XII, § 1243(c), Dec. 31, 2011, 125 Stat. 1646, provided that:
“The amendments made by this section [amending section 1211 of Pub. L. 109–163, set out above] take effect on the date of the enactment of this Act [Dec. 31, 2011] and apply with respect to contracts and subcontracts of the Department of Defense entered into on or after the date of the enactment of this Act.”
]