§ 437. Congressional oversight

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1991

   Pub. L. 102–88 title V § 504(a)(2) · 105 Stat. 429

   Enacted · 10 U.S.C. § 437

   Added Pub. L. 102–88, title V, § 504(a)(2), Aug. 14, 1991, 105 Stat. 440

   Source evidence

   Code source credit
   Added Pub. L. 102–88, title V, § 504(a)(2), Aug. 14, 1991, 105 Stat. 440

   Enacted provision · exact public law section
   (2) by adding at the end the following: “SUBCHAPTER II— INTELLIGENCE COMMERCIAL ACTIVITIES “432. Use, disposition, and auditing of funds. “433. Relationship with other Federal laws. “434. Reservation of defenses and immunities. “435. Limitations. “436. Regulations. “437. Congressional oversight. “§ 431. Authority to engage in commercial activities as security for intelligence collection activities “(a) Authority.— The Secretary of Defense, subject to the provisions of this subchapter, may authorize the conduct of those commercial activities necessary to provide security for authorized intelligence collection activities abroad undertaken by the Department of Defense. No commercial activity may be initiated pursuant to this subchapter after December 31, 1995. “(b) Interagency Coordination and Support.— Any such activity shall— “(1) be coordinated with, and (where appropriate) be supported by, the Director of Central Intelligence; and “(2) to the extent the activity takes place within the United States, be coordinated with, and (where appropriate) be supported by, the Director of the Federal Bureau of Investigation. “(c) Definitions.— In this subchapter: “(1) The term ‘commercial activities’ means activities that are conducted in a manner consistent with prevailing commercial practices and includes— “(A) the acquisition, use, sale, storage and disposal of goods and services; “(B) entering into employment contracts and leases and other agreements for real and personal property; “(C) depositing funds into and withdrawing funds from domestic and foreign commercial business or financial institutions; “(D) acquiring licenses, registrations, permits, and insurance; and “(E) establishing corporations, partnerships, and other legal entities. “(2) The term ‘intelligence collection activities’ means the collection of foreign intelligence and counterintelligence information. “§ 432. Use, disposition, and auditing of funds “(a) Use of Funds.— Funds generated by a commercial activity authorized pursuant to this subchapter may be used to offset necessary and reasonable expenses arising from that activity. Use of such funds for that purpose shall be kept to the minimum necessary to conduct the activity concerned in a secure manner. Any funds generated by the activity in excess of those required for that purpose shall be deposited, as often as may be practicable, into the Treasury as miscellaneous receipts. “(b) Audits.— (1) The Secretary of Defense shall assign an organization within the Department of Defense to have auditing responsibility with respect to activities authorized under this subchapter. “(2) That organization shall audit the use and disposition of funds generated by any commercial activity authorized under this subchapter not less often than annually. The results of all such audits shall be promptly reported to the intelligence committees (as defined in section 437(d) of this title). “§ 433. Relationship with other Federal laws “(a) In General.— Except as provided by subsection (b), a commercial activity conducted pursuant to this subchapter shall be carried out in accordance with applicable Federal law. “(b) Authorization of Waivers When Necessary to Maintain Security.— (1) If the Secretary of Defense determines, in connection with a commercial activity authorized pursuant to section 431 of this title, that compliance with certain Federal laws or regulations pertaining to the management and administration of Federal agencies would create an unacceptable risk of compromise of an authorized intelligence activity, the Secretary may, to the extent necessary to prevent such compromise, waive compliance with such laws or regulations. “(2) Any determination and waiver by the Secretary under paragraph (1) shall be made in writing and shall include a specification of the laws and regulations for which compliance by the commercial activity concerned is not required consistent with this section. “(3) The authority of the Secretary under paragraph (1) may be delegated only to the Deputy Secretary of Defense, an Under Secretary of Defense, an Assistant Secretary of Defense, or a Secretary of a military department. “(c) Federal Laws and Regulations.— For purposes of this section. Federal laws and regulations pertaining to the management and administration of Federal agencies are only those Federal laws and regulations pertaining to the following: “(1) The receipt and use of appropriated and nonappropriated funds. “(2) The acquisition or management of property or services. “(3) Information disclosure, retention, and management. “(4) The employment of personnel. “(5) Payments for travel and housing. “(6) The establishment of legal entities or government instrumentalities. “(7) Foreign trade or financial transaction restrictions that would reveal the commercial activity as an activity of the United States Government. “§ 434. Reservation of defenses and immunities “The submission to judicial proceedings in a State or other legal jurisdiction, in connection with a commercial activity undertaken pursuant to this subchapter, shall not constitute a waiver of the defenses and immunities of the United States. “§ 435. Limitations “(a) Lawful Activities.— Nothing in this subchapter authorizes the conduct of any intelligence activity that is not otherwise authorized by law or Executive order. “(b) Domestic Activities.— Personnel conducting commercial activity authorized by this subchapter may only engage in those activities in the United States to the extent necessary to support intelligence activities abroad. “(c) Providing Goods and Services to the Department of Defense.— Commercial activity may not be undertaken within the United States for the purpose of providing goods and services to the Department of Defense, other than as may be necessary to provide security for the activities subject to this subchapter. “(d) Notice to United States Persons.— (1) In carrying out a commercial activity authorized under this subchapter, the Secretary of Defense may not permit an entity engaged in such activity to employ a United States person in an operational, managerial, or supervisory position, and may not assign or detail a United States person to perform operational, managerial, or supervisory duties for such an entity, unless that person is informed in advance of the ^ intelligence security purpose of that activity. “(2) In this subsection, the term ‘United States person’ means an individual who is a citizen of the United States or an alien lawfully admitted to the United States for permanent residence. “§436. Regulations “The Secretary of Defense shall prescribe regulations to implement the authority provided in this subchapter. Such regulations shall be consistent with this subchapter and shall at a minimum— “(1) specify all elements of the Department of Defense who are authorized to engage in commercial activities pursuant to this subchapter; “(2) require the personal approval of the Secretary or Deputy Secretary of Defense for all sensitive activities to be authorized pursuant to this subchapter; “(3) specify all officials who are authorized to grant waivers of laws or regulations pursuant to section 433(b) of this title, or to approve the establishment or conduct of commercial activities pursuant to this subchapter; “(4) designate a single office within the Defense Intelligence Agency to be responsible for the management and supervision of all activities authorized under this subchapter; “(5) require that each commercial activity proposed to be authorized under this subchapter be subject to appropriate legal review before the activity is authorized; and “(6) provide for appropriate internal audit controls and oversight for such activities. “§ 437. Congressional oversight “(a) Proposed Regulations.— Copies of regulations proposed to be prescribed under section 436 of this title (including any proposed revision to such regulations) shall be submitted to the intelligence committees not less than 30 days before they take effect. “(b) Current Information.— Consistent with title V of the National Security Act of 1947 (50 U.S.C. 413 et seq.), the Secretary of Defense shall ensure that the intelligence committees are kept fully and currently informed of actions taken pursuant to this subchapter, including any significant anticipated activity to be authorized pursuant to this subchapter. The Secretary shall promptly notify the appropriate committees of Congress whenever a corporation, partnership, or other legal entity is established pursuant to this subchapter. “(c) Annual Report.— Not later than January 15 of each year, the Secretary shall submit to the appropriate committees of Congress a report on all commercial activities authorized under this subchapter that were undertaken during the previous fiscal year. Such report shall include (with respect to the fiscal year covered by the report)— “(1) a description of any exercise of the authority provided by section 433(b) of this title; “(2) a description of any expenditure of funds made pursuant to this subchapter (whether from appropriated or non-appropriated funds); and “(3) a description of any actions taken with respect to audits conducted pursuant to section 432 of this title to implement recommendations or correct deficiencies identified in such audits. “(d) Intelligence Committees Defined.— In this section, the term ‘intelligence committees’ means the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.”. (b) Effective Date.— The Secretary of Defense may not authorize 10 USC 431 note. any activity under section 431 of title 10, United States Code, as added by subsection (a), until the later of— (1) the end of the 90-day period beginning on the date of the enactment of this Act; or (2) the effective date of regulations first prescribed under section 436 of such title, as added by subsection (a).

2. 2002

   Pub. L. 107–306 § 811(b)(4)(A)(i) · 116 Stat. 2383

   Substituted · 10 U.S.C. § 437(c)

   Pub. L. 107–306, § 811(b)(4)(A)(i), in introductory provisions, substituted “Not later each year than the date provided in section 507 of the National Security Act of 1947, the Secretary shall submit to the congressional intelligence committees (as defined in section 3 of that Act (50 U.S.C. 401a))” for “Not later than January 15 of each year, the Secretary shall submit to the appropriate committees of Congress”

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 107–306, § 811(b)(4)(A)(i), in introductory provisions, substituted “Not later each year than the date provided in section 507 of the National Security Act of 1947, the Secretary shall submit to the congressional intelligence committees (as defined in section 3 of that Act (50 U.S.C. 401a))” for “Not later than January 15 of each year, the Secretary shall submit to the appropriate committees of Congress”.

   Enacted provision · exact public law section
   (i) in subsection (c), by striking “Not later than” and all that follows through “of Congress” and inserting “Not later each year than the date provided in section 507 of the National Security Act of 1947, the Secretary shall submit to the congressional intelligence committees (as defined in section 3 of that Act (50 U.S.C. 401a))”; and

3. 2002

   Pub. L. 107–306 § 811(b)(4)(A)(ii) · 116 Stat. 2383

   Struck · 10 U.S.C. § 437(d)

   Pub. L. 107–306, § 811(b)(4)(A)(ii), struck out heading and text of subsec. (d). Text read as follows: “In this section, the term ‘intelligence committees’ means the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.”

   Source evidence

   Code amendment note
   Subsec. (d). Pub. L. 107–306, § 811(b)(4)(A)(ii), struck out heading and text of subsec. (d). Text read as follows: “In this section, the term ‘intelligence committees’ means the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.”

   Enacted provision · exact public law section
   (ii) by striking subsection (d).

4. 2003

   National Defense Authorization Act for Fiscal Year 2004

   Pub. L. 108–136 § 1031(a)(7)(A) · 117 Stat. 1392

   Struck · 10 U.S.C. § 437(b)

   Pub. L. 108–136, § 1031(a)(7)(A), struck out at end “The Secretary shall promptly notify the appropriate committees of Congress whenever a corporation, partnership, or other legal entity is established pursuant to this subchapter.”

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 108–136, § 1031(a)(7)(A), struck out at end “The Secretary shall promptly notify the appropriate committees of Congress whenever a corporation, partnership, or other legal entity is established pursuant to this subchapter.”

   Enacted provision · exact public law section
   (A) by striking the second sentence of subsection (b); and

5. 2003

   National Defense Authorization Act for Fiscal Year 2004

   Pub. L. 108–136 § 1031(a)(7)(B) · 117 Stat. 1392

   1. Substituted · 10 U.S.C. § 437(c)

      Pub. L. 108–136, § 1031(a)(7)(B), substituted “report) the following:” for “report)—” in pars. (1) to (3), a period for the semicolon at end of par. (1) and for “; and” at end of par. (2)

   2. Substituted · 10 U.S.C. § 437(c)

      Pub. L. 108–136, § 1031(a)(7)(B), substituted “A” for “a” in pars. (1) to (3), a period for the semicolon at end of par. (1) and for “; and” at end of par. (2)

   3. Added · 10 U.S.C. § 437(c)

      Pub. L. 108–136, § 1031(a)(7)(B), added par. (4)

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 108–136, § 1031(a)(7)(B), substituted “report) the following:” for “report)—” in introductory provisions, “A” for “a” in pars. (1) to (3), a period for the semicolon at end of par. (1) and for “; and” at end of par. (2), and added par. (4).

   Enacted provision · exact public law section
   (B) in subsection (c)— (i) by striking “report)—” in the matter preceding paragraph (1) and inserting “report) the following:”; (ii) by striking “a” in paragraphs (1), (2), and (3) after the paragraph designation and inserting “A”; (iii) by striking the semicolon at the end of paragraph (1) and inserting a period; (iv) by striking “; and” at the end of paragraph (2) and inserting a period; and (v) by adding at the end the following new paragraph: “(4) A description of each corporation, partnership, or other legal entity that was established.” .

6. 2004

   Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005

   Pub. L. 108–375 div. A title X § 1084(d)(3) · 118 Stat. 1811

   Inserted · 10 U.S.C. § 437(c)

   Pub. L. 108–375 inserted “(50 U.S.C. 415b)” after “National Security Act of 1947”

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 108–375 inserted “(50 U.S.C. 415b)” after “National Security Act of 1947”.

   Enacted provision · exact public law section
   (3) Section 437(c) is amended by inserting “(50 U.S.C. 415b)” after “National Security Act of 1947”.

7. 2011

   National Defense Authorization Act for Fiscal Year 2012

   Pub. L. 112–81 div. A title X § 1061(5) · 125 Stat. 1298

   Struck · 10 U.S.C. § 437(c)

   Pub. L. 112–81 struck out subsec. (c) which related to submission of an annual report on certain authorized commercial activities

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 112–81 struck out subsec. (c) which related to submission of an annual report on certain authorized commercial activities.

   Enacted provision · exact public law section
   (5) Section 437 is amended by striking subsection (c).

8. 2013

   National Defense Authorization Act for Fiscal Year 2014

   Pub. L. 113–66 § 921(c)(1) · 127 Stat. 672

   Substituted · 10 U.S.C. § 437(a)

   Pub. L. 113–66, § 921(c)(1), substituted “congressional defense committees and the congressional intelligence committees” for “the intelligence committees”

   Source evidence

   Code amendment note
   Subsec. (a). Pub. L. 113–66, § 921(c)(1), substituted “congressional defense committees and the congressional intelligence committees” for “the intelligence committees”.

   Enacted provision · exact public law section
   (1) in subsection (a), by striking “the intelligence committees” and inserting “congressional defense committees and the congressional intelligence committees”;

9. 2013

   National Defense Authorization Act for Fiscal Year 2014

   Pub. L. 113–66 § 921(c)(2) · 127 Stat. 672

   1. Substituted · 10 U.S.C. § 437(b)

      Pub. L. 113–66, § 921(c)(2), substituted “The Secretary” for “Consistent with title V of the National Security Act of 1947 (50 U.S.C. 413 et seq.), the Secretary”

   2. Substituted · 10 U.S.C. § 437(b)

      Pub. L. 113–66, § 921(c)(2), substituted “congressional defense committees and the congressional intelligence committees” for “the intelligence committees”

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 113–66, § 921(c)(2), substituted “The Secretary” for “Consistent with title V of the National Security Act of 1947 (50 U.S.C. 413 et seq.), the Secretary” and “congressional defense committees and the congressional intelligence committees” for “the intelligence committees”.

   Enacted provision · exact public law section
   (2) in subsection (b)— (A) by striking “Consistent with” and all that follows through “the Secretary” and insert “The Secretary”; and (B) by striking “the intelligence committees” and inserting “congressional defense committees and the congressional intelligence committees”; and

10. 2013

    National Defense Authorization Act for Fiscal Year 2014

    Pub. L. 113–66 § 921(c)(3) · 127 Stat. 672

    Added · 10 U.S.C. § 437(c)

    Pub. L. 113–66, § 921(c)(3), added subsec. (c)

    Source evidence

    Code amendment note
    Subsec. (c). Pub. L. 113–66, § 921(c)(3), added subsec. (c).

    Enacted provision · exact public law section
    (3) by adding at the end the following new subsection: “(c) Congressional Intelligence Committees Defined.— In this section, the term ‘congressional intelligence committees’ has the meaning given the term in section 3 of the National Security Act of 1947 (50 U.S.C. 3003).” .

13 of 13 references resolved to an enrolled provision