10 U.S. Code § 428 - Defense industrial security

(a) Responsibility for Defense Industrial Security.—

The Secretary of Defense shall be responsible for the protection of classified information disclosed to contractors of the Department of Defense.

(b) Consistency With Executive Orders and Directives.—

The Secretary shall carry out the responsibility assigned under subsection (a) in a manner consistent with Executive Order 12829 (or any successor order to such executive order) and consistent with policies relating to the National Industrial Security Program (or any successor to such program).

(c) Performance of Industrial Security Functions for Other Agencies.—

The Secretary may perform industrial security functions for other agencies of the Federal government upon request or upon designation of the Department of Defense as executive agent for the National Industrial Security Program (or any successor to such program).

(d) Regulations and Policy Guidance.—

The Secretary shall prescribe, and from time to time revise, such regulations and policy guidance as are necessary to ensure the protection of classified information disclosed to contractors of the Department of Defense.

(e) Dedication of Resources.—

The Secretary shall ensure that sufficient resources are provided to staff, train, and support such personnel as are necessary to fully protect classified information disclosed to contractors of the Department of Defense.

(Added Pub. L. 110–417, [div. A], title VIII, § 845(a)(1), Oct. 14, 2008, 122 Stat. 4541, § 438; renumbered § 428, Pub. L. 111–84, div. A, title X, § 1073(a)(4), Oct. 28, 2009, 123 Stat. 2472; Pub. L. 111–383, div. A, title X, § 1075(b)(11), Jan. 7, 2011, 124 Stat. 4369; Pub. L. 115–91, div. A, title X, § 1051(a)(3), Dec. 12, 2017, 131 Stat. 1560.)

Editorial Notes

References in Text

Executive Order 12829, referred to in subsec. (b), is set out as a note under section 3161 of Title 50, War and National Defense.

Amendments

2017—Subsec. (f). Pub. L. 115–91 struck out subsec. (f) which related to biennial reports on expenditures and activities of the Department of Defense in carrying out the requirements of this section.

2011—Subsec. (f). Pub. L. 111–383 struck out “, United States Code,” after “title 31”.

2009—Pub. L. 111–84 renumbered section 438 of this title as this section.

Statutory Notes and Related Subsidiaries

Pilot Program for Department of Defense Controlled Unclassified Information in the Hands of Industry

Pub. L. 115–232, div. A, title X, § 1048, Aug. 13, 2018, 132 Stat. 1961, provided that:

“(a) In General.—

The Secretary of Defense—

“(1) shall establish and implement a pilot program for oversight of designated Department of Defense controlled unclassified information in the hands of defense contractors with foreign ownership, control, or influence concerns; and

“(2) may designate an entity within the Department to be responsible for the pilot program under paragraph (1).

“(b) Program Requirements.—

The pilot program under subsection (a) shall have the following elements:

“(1) The use of a capability to rapidly identify companies subject to foreign ownership, control, or influence that are processing designated controlled unclassified information, including unclassified controlled technical information.

“(2) The use, in consultation with the Chief of Information Officer of the Department, of a capability or means for assessing industry compliance with Department cybersecurity standards.

“(3) A means of demonstrating whether and under what conditions the risk to national security posed by access to Department controlled unclassified information, including unclassified controlled technical information, by a company under foreign ownership, control, or influence company can be mitigated and how such mitigation could be enforced.

“(c) Briefing Required.—

By not later than 30 days after the completion of the pilot program under this section, but in no case later than December 1, 2019, the Secretary shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on the results of the pilot program and any decisions about whether to implement the pilot program on a Department-wide basis.”

Requirements Relating to Multi-Use Sensitive Compartmented Information Facilities

Pub. L. 115–91, div. A, title XVI, § 1628, Dec. 12, 2017, 131 Stat. 1735, provided that:

“(a) In General.—

In order to facilitate access for small business concerns and nontraditional defense contractors to affordable secure spaces, the Secretary of Defense, in consultation with the Director of National Intelligence, shall develop processes and procedures necessary to build, certify, and maintain certifications for multi-use sensitive compartmented information facilities not tied to a single contract and where multiple companies can securely work on multiple projects at different security levels.

“(b) Definitions.—

In this section:

“(1) The term ‘small business concern’ has the meaning given that term under section 3 of the Small Business Act (15 U.S.C. 632).

“(2) The term ‘nontraditional defense contractors’ has the meaning given that term in section 2302 of title 10, United States Code [now 10 U.S.C. 3014].”

Requirement for Entities With Facility Clearances That Are Not Under Foreign Ownership Control or Influence Mitigation

Pub. L. 111–383, div. A, title VIII, § 845, Jan. 7, 2011, 124 Stat. 4285, provided that:

“(a) Requirement.—

The Secretary of Defense shall develop a plan to ensure that covered entities employ and maintain policies and procedures that meet requirements under the national industrial security program. In developing the plan, the Secretary shall consider whether or not covered entities, or any category of covered entities, should be required to establish government security committees similar to those required for companies that are subject to foreign ownership control or influence mitigation measures.

“(b) Covered Entity.—

A covered entity under this section is an entity—

“(1) to which the Department of Defense has granted a facility clearance; and

“(2) that is not subject to foreign ownership control or influence mitigation measures.

“(c) Guidance.—

The Secretary of Defense shall issue guidance, including appropriate compliance mechanisms, to implement the requirement in subsection (a). To the extent determined appropriate by the Secretary, the guidance shall require covered entities, or any category of covered entities, to establish government security committees similar to those required for companies that are subject to foreign ownership control or influence mitigation measures.

“(d) Report.—

Not later than 270 days after the date of the enactment of this Act [Jan. 7, 2011], the Secretary shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the plan developed pursuant to subsection (a) and the guidance issued pursuant to subsection (c). The report shall specifically address the rationale for the Secretary’s decision on whether or not to require covered entities, or any category of covered entities, to establish government security committees similar to those required for companies that are subject to foreign ownership control or influence mitigation measures.”

Submission of First Biennial Report

Pub. L. 110–417, [div. A], title VIII, § 845(b), Oct. 14, 2008, 122 Stat. 4542, required the first biennial report under former subsec. (f) of this section to be submitted no later than Sept. 1, 2009.