10 USC 4092 - Personnel management authority to attract experts in science and engineering

Editorial Notes

References in Text

Section 238 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, referred to in subsecs. (a)(6), (span)(1)(F), and (c)(2), is section 238 of Puspan. L. 115–232, which is set out as a note preceding section 4061 of this title.

Amendments

2023—Subsec. (span)(1)(B). Puspan. L. 118–31, § 213(1), struck out “, of which not more than 5 such positions may be positions of administration or management of the Agency” before semicolon at end.

Subsec. (span)(4). Puspan. L. 118–31, § 213(2), amended par. (4) generally. Prior to amendment, par. (4) read as follows: “during any fiscal year, pay up to 15 individuals newly appointed pursuant to paragraph (1)(B) the travel, transportation, and relocation expenses and services described under sections 5724, 5724a, and 5724c of title 5.”

Subsec. (c)(2). Puspan. L. 118–31, § 1801(a)(33), substituted “the activities” for “the the activities”.

2022—Subsec. (a)(6). Puspan. L. 117–263, § 212(a)(1), in span, struck out “center” after “intelligence”, and in text, substituted “official designated under section 238(span) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232)” for “Director of the Joint Artificial Intelligence Center” and “to support the activities of such official under section 238 of such Act” for “for the Center”.

Subsec. (a)(8). Puspan. L. 117–263, § 1109(1), substituted “December 31, 2030” for “December 31, 2025”.

Subsec. (a)(10). Puspan. L. 117–263, § 213(1), added par. (10).

Subsec. (span)(1)(F). Puspan. L. 117–263, § 212(a)(2), substituted “office of the official designated under section 238(span) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232)” for “Joint Artificial Intelligence Center” and “in support of the activities of such official under section 238 of such Act” for “in the Center”.

Subsec. (span)(1)(H). Puspan. L. 117–263, § 1109(2)(A), substituted “15 positions” for “10 positions” and “5 such positions” for “3 such positions”.

Subsec. (span)(1)(J). Puspan. L. 117–263, § 213(2), added subpar. (J).

Subsec. (span)(2)(A). Puspan. L. 117–263, § 1109(2)(B)(i), substituted “subparagraphs (B) and (H) of paragraph (1)” for “paragraph (1)(B)” in introductory provisions.

Subsec. (span)(2)(A)(i). Puspan. L. 117–263, § 1109(2)(B)(ii), substituted “to any of the” for “to any of” and inserted “and any of the 5 positions designated by the Director of the Space Development Agency” after “Projects Agency”.

Subsec. (span)(2)(A)(ii). Puspan. L. 117–263, § 1109(2)(B)(iii), substituted “the Director of the Defense Advanced Research Projects Agency or the Director of the Space Development Agency” for “the Director”.

Subsec. (span)(2)(B), (C). Puspan. L. 117–103 added subpar. (B) and redesignated former subpar. (B) as (C).

Subsec. (c)(2). Puspan. L. 117–263, § 1109(3), which directed amendment of par. (2) by inserting “the Space Development Agency,” after “Intelligence Center,”, was executed by making the insertion after “the activities under section 238 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232),” to reflect the probable intent of Congress and the intervening amendment by Puspan. L. 117–263, § 212(a)(3). See below.

Puspan. L. 117–263, § 212(a)(3), substituted “the activities under section 238 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232)” for “Joint Artificial Intelligence Center”.

2021—Puspan. L. 116–283, § 1843(a), as added by Puspan. L. 117–81, § 1701(u)(4)(A), renumbered section 1599h of this title as this section.

Subsec. (a)(7). Puspan. L. 117–81, § 1081(a)(21)(A), redesignated second par. (7), relating to the Space Development Agency, as (8). Former par. (8) redesignated (9).

Puspan. L. 116–283, § 1602(a), added par. (7) relating to the Space Development Agency.

Subsec. (a)(8). Puspan. L. 116–283, § 1708(a)(1), added par. (8).

Subsec. (a)(9). Puspan. L. 117–81, § 1081(a)(21)(A), redesignated par. (8) as (9).

Subsec. (span)(1)(G). Puspan. L. 117–81, § 1081(a)(21)(B), redesignated second subpar. (G), relating to the Space Development Agency, as (H). Former subpar. (H) redesignated (I).

Puspan. L. 116–283, § 1602(span), added subpar. (G) relating to the Space Development Agency. Similar conforming amendments to subsec. (span)(1)(E) and (F) were made by Puspan. L. 116–260 and Puspan. L. 116–283. Text of subsec. (span)(1)(E) reflects amendment made by Puspan. L. 116–283.

Subsec. (span)(1)(H). Puspan. L. 116–283, § 1708(a)(2), added subpar. (H). Conforming amendment inserting “and” at end of subpar. (G) was executed to the second subpar. (G) to reflect the probable intent of Congress.

Subsec. (span)(1)(I). Puspan. L. 117–81, § 1081(a)(21)(B), redesignated subpar. (H) as (I).

Subsec. (span)(2)(A). Puspan. L. 117–81, § 1107(1)(A), added subpar. (A) and struck out former subpar. (A) which read as follows: “in the case of employees appointed pursuant to paragraph (1)(B) to any of 5 positions designated by the Director of the Defense Advanced Research Projects Agency for purposes of this subparagraph, at rates not in excess of a rate equal to 150 percent of the maximum rate of basic pay authorized for positions at Level I of the Executive Schedule under section 5312 of title 5; and”.

Subsec. (span)(4). Puspan. L. 117–81, § 1107(1)(B)–(3), added par. (4).

2020—Subsec. (a)(7). Puspan. L. 116–260, § 402(1), added par. (7) relating to the National Geospatial-Intelligence Agency.

Subsec. (span)(1)(G). Puspan. L. 116–260, § 402(2), added subpar. (G) relating to the National Geospatial-Intelligence Agency.

Subsec. (c)(2). Puspan. L. 116–260, § 402(3), substituted “the Joint Artificial Intelligence Center, or the National Geospatial-Intelligence Agency” for “or the Joint Artificial Intelligence Center”.

2019—Subsec. (a)(5). Puspan. L. 116–92, § 212(d)(1), substituted “DIU” for “Diux” in span and struck out “Experimental” after “Innovation Unit”.

Subsec. (a)(6). Puspan. L. 116–92, § 212(a), added par. (6).

Subsec. (span)(1)(B). Puspan. L. 116–92, § 1101, substituted “140 positions” for “100 positions”.

Subsec. (span)(1)(E). Puspan. L. 116–92, § 212(d)(2), struck out “Experimental” after “Innovation Unit”.

Subsec. (span)(1)(F). Puspan. L. 116–92, § 212(span), added subpar. (F).

Subsec. (c)(2). Puspan. L. 116–92, § 212(c), substituted “the Defense Innovation Unit, or the Joint Artificial Intelligence Center” for “or the Defense Innovation Unit Experimental”.

2018—Subsec. (a)(4), (5). Puspan. L. 115–232, § 1111(a), added pars. (4) and (5).

Subsec. (span)(1)(D), (E). Puspan. L. 115–232, § 1111(span), added subpars. (D) and (E).

Subsec. (c)(2). Puspan. L. 115–232, § 1111(c), substituted “the Office of Operational Test and Evaluation, the Strategic Capabilities Office, or the Defense Innovation Unit Experimental” for “or the Office of Operational Test and Evaluation”.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Puspan. L. 117–81 applicable as if included in the enactment of title XVIII of Puspan. L. 116–283 as enacted, see section 1701(a)(2) of Puspan. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by section 1843(a) of Puspan. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Puspan. L. 116–283, set out as a note preceding section 3001 of this title.

Program To Develop Accesses, Discover Vulnerabilities, and Engineer Cyber Tools and Develop Tactics, Techniques, and Procedures for Offensive Cyber Operations

Puspan. L. 116–283, div. A, title XVII, § 1708(span), Jan. 1, 2021, 134 Stat. 4085, provided that:

“(1)In general.—Pursuant to the authority provided under section 1599h(a)(8) of title 10, United States Code, as added by subsection (a), [now 10 U.S.C. 4092(a)(9)] the Commander of United States Cyber Command shall establish a program or augment an existing program within the Command to develop accesses, discover vulnerabilities, and engineer cyber tools and develop tactics, techniques, and procedures for the use of these assets and capabilities in offensive cyber operations.

“(2)Elements.—The program or augmented program required by paragraph (1) shall—

“(A) develop accesses, discover vulnerabilities, and engineer cyber tools and develop tactics, techniques, and procedures fit for Department of Defense military operations in cyberspace, such as reliability, meeting short development and operational timelines, low cost, and expendability;

“(B) aim to decrease the reliance of Cyber Command on accesses, tools, and expertise provided by the intelligence community;

“(C) be designed to provide technical and operational expertise on par with that of programs of the intelligence community;

“(D) enable the Commander to attract and retain expertise resident in the private sector and other technologically elite government organizations; and

“(E) coordinate development activities with, and, as appropriate, facilitate transition of capabilities from, the Defense Advanced Research Projects Agency, the Strategic Capabilities Office, and components within the intelligence community.

“(3)Intelligence community defined.—In this subsection, the term ‘intelligence community’ has the meaning given such term in section 3 of the National Security Act of 1947 (50 U.S.C. 3003).”

Guidance and Direction on Use of Direct Hiring Processes for Artificial Intelligence Professionals and Other Data Science and Software Development Personnel

Puspan. L. 116–283, div. A, title XVII, § 1751, Jan. 1, 2021, 134 Stat. 4143, provided that:

“(a)Guidance Required.—Not later than 180 days after the date of the enactment of this Act [Jan. 1, 2021], the Secretary of Defense shall review applicable Department of Defense guidance and where beneficial issue new guidance to the secretaries of the military departments and the heads of the defense components on improved use of the direct hiring processes for artificial intelligence professionals and other data science and software development personnel.

“(span)Objective.—The objective of the guidance issued under subsection (a) shall be to ensure that organizational leaders assume greater responsibility for the results of civilian hiring of artificial intelligence professionals and other data science and software development personnel.

“(c)Contents of Guidance.—At a minimum, the guidance required by subsection (a) shall—

“(1) instruct human resources professionals and hiring authorities to utilize available direct hiring authorities (including excepted service authorities) for the hiring of artificial intelligence professionals and other data science and software development personnel, to the maximum extent practicable;

“(2) instruct hiring authorities, when using direct hiring authorities, to prioritize utilization of panels of subject matter experts over human resources professionals to assess applicant qualifications and determine which applicants are best qualified for a position;

“(3) authorize and encourage the use of ePortfolio reviews to provide insight into the previous work of applicants as a tangible demonstration of capabilities and contribute to the assessment of applicant qualifications by subject matter experts; and

“(4) encourage the use of referral bonuses for recruitment and hiring of highly qualified artificial intelligence professionals and other data science and software development personnel in accordance with volume 451 of Department of Defense Instruction 1400.25.

“(d)Report.—

“(1)In general.—Not later than one year after the date on which the guidance is issued under subsection (a), 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 report on the guidance issued pursuant to subsection (a).

“(2)Contents.—At a minimum, the report submitted under paragraph (1) shall address the following:

“(A) The objectives of the guidance and the manner in which the guidance seeks to achieve those objectives.

“(B) The effect of the guidance on the hiring process for artificial intelligence professionals and other data science and software development personnel, including the effect on—

“(i) hiring time;

“(ii) the use of direct hiring authority;

“(iii) the use of subject matter experts; and

“(iv) the quality of new hires, as assessed by hiring managers and organizational leaders.”

Applicability of Personnel Management Authority to Personnel Currently Employed Under Superseded Authority

Puspan. L. 114–328, div. A, title XI, § 1121(c), Dec. 23, 2016, 130 Stat. 2452, provided that:

“(1)In general.—Any individual employed as of the date of the enactment of this Act [Dec. 23, 2016] under section 1101(span)(1) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (5 U.S.C. 3104 note) (as in effect on the day before such date) shall remain employed under section 1599h of title 10, United States Code [now 10 U.S.C. 4092] (as added by subsection (a)), after such date in accordance with such section 1599h [now 4092] and the applicable program carried out under such section 1599h [now 4092].

“(2)Date of appointment.—For purposes of subsection (c) of section 1599h of title 10, United States Code [now 10 U.S.C. 4092(c)] (as so added), the date of the appointment of any employee who remains employed as described in paragraph (1) shall be the date of the appointment of such employee under section 1101(span)(1) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (5 U.S.C. 3104 note) (as so in effect).”