50 U.S.C. § 3073a

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

Section 3073a - Requirements for certain employment activities by former intelligence officers and employees

(a) Post-employment restrictions

(1) Covered post-service position

(A) Permanent restriction

Except as provided by paragraph (2)(A)(i), an employee of an element of the intelligence community who occupies a covered intelligence position may not occupy a covered post-service position for a designated prohibited foreign country following the date on which the employee ceases to occupy a covered intelligence position.

(B) Temporary restriction

Except as provided by paragraph (2)(A)(ii), an employee of an element of the intelligence community who occupies a covered intelligence position may not occupy a covered post-service position during the 30-month period following the date on which the employee ceases to occupy a covered intelligence position.

(2) Waiver

(A) Authority to grant temporary waiver

(i) Waivers of permanent restriction

On a case-by-case basis, the Director of National Intelligence may temporarily waive the restriction in paragraph (1)(A) with respect to an employee or former employee who is subject to that restriction only after-

(I) the employee or former employee submits to the Director a written application for such waiver in such form and manner as the Director determines appropriate;

(II) the Director determines that not granting such waiver would result in a grave detrimental impact to current or future intelligence operations of the United States; and

(III) the Director provides the congressional intelligence committees with a detailed justification stating why not granting such waiver would result in a grave detrimental impact to current or future intelligence operations of the United States.

(ii) Waivers of temporary restriction

On a case-by-case basis, the Director may temporarily waive the restriction in paragraph (1)(B) with respect to an employee or former employee who is subject to that restriction only after-

(I) the employee or former employee submits to the Director a written application for such waiver in such form and manner as the Director determines appropriate; and

(II) the Director determines that such waiver is necessary to advance the national security interests of the United States.

(B) Period of waiver

A waiver issued under subparagraph (A) shall apply for a period not exceeding 5 years. The Director may renew such a waiver.

(C) Revocation

The Director may revoke a waiver issued under subparagraph (A) to an employee or former employee, effective on the date that is 60 days after the date on which the Director provides the employee or former employee written notice of such revocation.

(D) Tolling

The 30-month restriction in paragraph (1)(B) shall be tolled for an employee or former employee during the period beginning on the date on which a waiver is issued under subparagraph (A) and ending on the date on which the waiver expires or on the effective date of a revocation under subparagraph (C), as the case may be.

(E) Notification

Not later than 30 days after the date on which the Director issues a waiver under subparagraph (A) or a revocation of a waiver under subparagraph (C), the Director shall submit to the congressional intelligence committees written notification of the waiver or revocation, as the case may be. Such notification shall include the following:

(i) With respect to a waiver issued to an employee or former employee-

(I) the details of the application, including the covered intelligence position held or formerly held by the employee or former employee;

(II) the nature of the activities of the employee or former employee after ceasing to occupy a covered intelligence position;

(III) a description of the national security interests that will be advanced by reason of issuing such waiver; and

(IV) the specific reasons why the Director determines that issuing such waiver will advance such interests.

(ii) With respect to a revocation of a waiver issued to an employee or former employee-

(I) the details of the waiver, including any renewals of such waiver, and the dates of such waiver and renewals; and

(II) the specific reasons why the Director determined that such revocation is warranted.

(b) Covered post-service employment reporting

(1) Requirement

During the period described in paragraph (2), an employee who ceases to occupy a covered intelligence position shall-

(A) report covered post-service employment to the head of the element of the intelligence community that employed such employee in such covered intelligence position upon accepting such covered post-service employment; and

(B) annually (or more frequently if the head of such element considers it appropriate) report covered post-service employment to the head of such element.

(2) Period described

The period described in this paragraph is the period beginning on the date on which an employee ceases to occupy a covered intelligence position.

(3) Regulations

The head of each element of the intelligence community shall issue regulations requiring, as a condition of employment, each employee of such element occupying a covered intelligence position to sign a written agreement requiring the regular reporting of covered post-service employment to the head of such element pursuant to paragraph (1).

(c) Penalties

(1) Criminal penalties

A former employee who knowingly and willfully violates subsection (a) or who knowingly and willfully fails to make a required report under subsection (b) shall be fined under title 18 or imprisoned for not more than 5 years, or both. Each report under subsection (b) shall be subject to section 1001 of title 18.

(2) Security clearances

The head of an element of the intelligence community shall revoke the security clearance of a former employee if the former employee knowingly and willfully fails to make a required report under subsection (b) or knowingly and willfully makes a false report under such subsection.

(d) Provision of information

(1) Training

The head of each element of the intelligence community shall regularly provide training on the restrictions under subsection (a) and the reporting requirements under subsection (b) to employees of that element who occupy a covered intelligence position.

(2) Written notice about reporting requirements

The head of each element of the intelligence community shall provide written notice of the reporting requirements under subsection (b) to an employee when the employee occupies a covered intelligence position.

(3) Written notice about restrictions

The head of each element of the intelligence community shall provide written notice of the restrictions under subsection (a) to any person who may be subject to such restrictions on or after December 23, 2022-

(A) when the head of the element determines that such person may become subject to such covered intelligence position restrictions; and

(B) when the person occupies a covered intelligence position.

(e) Annual reports

(1) Requirement

Not later than March 31 of each year, the Director of National Intelligence shall submit to the congressional intelligence committees a report on covered post-service employment occurring during the year covered by the report.

(2) Elements

Each report under paragraph (1) shall include the following:

(A) The number of former employees who occupy a covered post-service position, broken down by-

(i) the name of the employer;

(ii) the foreign government, including by the specific foreign individual, agency, or entity, for whom the covered post-service employment is being performed; and

(iii) the nature of the services provided as part of the covered post-service employment.

(B) A certification by the Director that-

(i) each element of the intelligence community maintains adequate systems and processes for ensuring that former employees are submitting reports required under subsection (b);

(ii) to the knowledge of the heads of the elements of the intelligence community, all former employees who occupy a covered post-service position are in compliance with this section;

(iii) the services provided by former employees who occupy a covered post-service position do not-

(I) pose a current or future threat to the national security of the United States; or

(II) pose a counterintelligence risk; and

(iv) the Director and the heads of such elements are not aware of any credible information or reporting that any former employee who occupies a covered post-service position has engaged in activities that violate Federal law, infringe upon the privacy rights of United States persons, or constitute abuses of human rights.

(3) Form

Each report under paragraph (1) shall be submitted in unclassified form, but may include a classified annex.

(f) Notification

In addition to the annual reports under subsection (e), if a head of an element of the intelligence community determines that the services provided by a former employee who occupies a covered post-service position pose a threat or risk described in clause (iii) of paragraph (2)(B) of such subsection, or include activities described in clause (iv) of such paragraph, the head shall notify the congressional intelligence committees of such determination by not later than 7 days after making such determination. The notification shall include the following:

(1) The name of the former employee.

(2) The name of the employer.

(3) The foreign government, including the specific foreign individual, agency, or entity, for whom the covered post-service employment is being performed.

(4) As applicable, a description of-

(A) the risk to national security, the counterintelligence risk, or both; and

(B) the activities that may violate Federal law, infringe upon the privacy rights of United States persons, or constitute abuses of human rights.

(g) Definitions

In this section:

(1) Covered intelligence position

The term "covered intelligence position" means a position within an element of the intelligence community that, based on the level of access of a person occupying such position to information regarding sensitive intelligence sources or methods or other exceptionally sensitive matters, the head of such element determines should be subject to the requirements of this section.

(2) Covered post-service employment

The term "covered post-service employment" means direct or indirect employment by, representation of, or any provision of advice or services relating to national security, intelligence, the military, or internal security to, the government of a foreign country or any company, entity, or other person whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized, in whole or in major part, by any government of a foreign country.

(3) Covered post-service position

The term "covered post-service position" means a position of employment described in paragraph (2).

(4) Designated prohibited foreign country

The term "designated prohibited foreign country" means the following:

(A) The People's Republic of China.

(B) The Russian Federation.

(C) The Democratic People's Republic of Korea.

(D) The Islamic Republic of Iran.

(E) The Republic of Cuba.

(F) The Syrian Arab Republic.

(5) Employee

The term "employee", with respect to an employee occupying a covered intelligence position, includes an officer or official of an element of the intelligence community, a contractor of such an element, a detailee to such an element, or a member of the Armed Forces assigned to such an element.

(6) Former employee

The term "former employee" means an individual-

(A) who was an employee occupying a covered intelligence position; and

(B) who is subject to the requirements under subsection (a) or (b).

(7) Government of a foreign country

The term "government of a foreign country" has the meaning given the term in section 611(e) of title 22.

50 U.S.C. § 3073a

July 26, 1947, ch. 343, title III, §304, as added Pub. L. 113-293, §305, 128 Stat. 3995; amended Pub. L. 117-103, §308, 136 Stat. 966; Pub. L. 117-263, §6301, 136 Stat. 3498-3500; Pub. L. 118-31, div. G, title III, §7304, Dec. 22, 2023, 137 Stat. 1025.

EDITORIAL NOTES

PRIOR PROVISIONSA prior section 304 of act July 26, 1947, ch. 343, title III, 61 Stat. 508, was classified to section 171k of former Title 5, Executive Departments and Government Officers and Employees, prior to repeal by Pub. L. 89-554, §8(a), Sept. 6, 1966, 80 Stat. 632.

AMENDMENTS2023-Subsec. (d)(1). Pub. L. 118-31, §7304(1), which directed insertion of "the restrictions under subsection (a) and" before "the report requirements", was executed by making the insertion before "the reporting requirements" to reflect the probable intent of Congress. Subsec. (d)(2). Pub. L. 118-31, §7304(2), substituted "occupies" for "ceases to occupy".Subsec. (d)(3)(B). Pub. L. 118-31, §7304(3), substituted "when the person occupies a covered intelligence position" for "before the person ceases to occupy a covered intelligence position". 2022- Pub. L. 117-103 amended section generally. Prior to amendment, section related to reporting of certain employment activities by former intelligence officers and employees. Subsecs. (a), (b). Pub. L. 117-263, §6301(a), amended subsecs. (a) and (b) generally. Prior to amendment, subsecs. (a) and (b) related to temporary restriction and covered post-service employment reporting, respectively.Subsec. (d)(2). Pub. L. 117-263, §6301(c)(2), inserted "about reporting requirements" after "Written notice" in heading.Subsec. (d)(3). Pub. L. 117-263, §6301(c)(1), added par. (3).Subsec. (g)(4) to (7). Pub. L. 117-263, §6301(b), added par. (4) and redesignated former pars. (4) to (6) as (5) to (7), respectively.

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 2022 AMENDMENT Pub. L. 117-263, §6301, 136 Stat. 3501, provided that: "Subsection (a)(1)(A) of such section 304 [50 U.S.C. 3073a(a)(1)(A)], as amended by subsection (a) of this section, shall apply only to persons who occupy a covered intelligence position on or after the date that is 45 days after the date on which new or updated regulations are issued under subsection (d)(2) of this section [ section 6301(d)(2) of Pub. L. 117-263, set out in a note below]." Pub. L. 117-103, §308, 136 Stat. 970, provided that: "Such section 304 [50 U.S.C. 3073a], as amended by paragraph (1), shall apply with respect to employees who occupy covered intelligence positions (as defined in such section) on or after the date of the enactment of this Act [Mar. 15, 2022]."

REVISED REGULATIONS Pub. L. 117-263, §6301, 136 Stat. 3500, provided that:"(1) DEFINITION OF COVERED INTELLIGENCE POSITION.-In this subsection, the term 'covered intelligence position' has the meaning given such term by such section 304 [50 U.S.C. 3073a] . "(2) SUBMISSION.-Not later than 30 days after the date of the enactment of this Act [Dec. 23, 2022], the head of each element of the intelligence community shall submit to the congressional intelligence committees new or updated regulations issued to carry out such section 304, as amended by subsections (a), (b), and (c) of this section. "(3) REQUIREMENTS.-The regulations issued under paragraph (1) shall-"(A) include provisions that advise personnel of the intelligence community of the appropriate manner in which such personnel may opt out of positions that-"(i) have been designated as covered intelligence positions before the effective date established in subsection (e) of this section; or"(ii) may be designated as covered intelligence provisions before such designation becomes final; and"(B) establish a period of not fewer than 30 days and not more than 60 days after receipt of the written notice required under paragraph (3) of subsection (d) of such section 304 [50 U.S.C. 3073a(d)(3)], as added by subsection (c)(1) of this section, within which such personnel may opt out of a covered intelligence position and the accompanying obligations imposed by subsection (a)(1)(A) of such section 304 [50 U.S.C. 3073a(a)(1)(A)], as amended by subsection (a) of this section."(4) CERTIFICATION.-Not later than 180 days after the date of the enactment of this Act, the Director of National Intelligence shall submit to the congressional intelligence committees-"(A) a written certification for each head of an element of the intelligence community who has issued new or updated regulations pursuant to paragraph (2); and"(B) for each head of an element of the intelligence community who has not issued such new or updated regulations, an explanation for the failure to issue such new or updated regulations."[For definitions of "intelligence community" and "congressional intelligence committees" as used in section 6301(d) of Pub. L. 117-263, set out above, see section 6002 of Pub. L. 117-263, set out as a note under section 3003 of this title.] Pub. L. 117-103, §308, 136 Stat. 970, provided that:"(A) SUBMISSION.-Not later than 90 days after the date of the enactment of this Act [Mar. 15, 2022], the head of each element of the intelligence community shall submit to the congressional intelligence committees new or updated regulations issued under such section 304 [50 U.S.C. 3073a], as amended by paragraph (1)."(B) CERTIFICATION.-Not later than 180 days after the date of the enactment of this Act, the Director of National Intelligence shall submit to the congressional intelligence committees-"(i) a written certification for each head of an element of the intelligence community who has issued the updated regulations under such section 304, as amended by paragraph (1); and "(ii) for each head of an element of the intelligence community who has not issued such updated regulations, an explanation for the failure to issue such updated regulations."[For definitions of "congressional intelligence committees" and "intelligence community" as used in section 308(a)(3) of div. X of Pub. L. 117-103, set out above, see section 2 of div. X of Pub. L. 117-103, set out as a note under section 3003 of this title.]

REGULATIONS AND CERTIFICATION Pub. L. 113-293, §305, 128 Stat. 3996, provided that:"(1) REGULATIONS.-Not later than 90 days after the date of the enactment of this Act [Dec. 19, 2014], the head of each element of the intelligence community shall issue the regulations required under section 304 of the National Security Act of 1947 [50 U.S.C. 3073a], as added by subsection (a) of this section."(2) CERTIFICATION.-Not later than 180 days after the date of the enactment of this Act, the Director of National Intelligence shall submit to the congressional intelligence committees-"(A) a certification that each head of an element of the intelligence community has prescribed the regulations required under section 304 of the National Security Act of 1947, as added by subsection (a) of this section; or"(B) if the Director is unable to submit the certification described under subparagraph (A), an explanation as to why the Director is unable to submit such certification, including a designation of which heads of an element of the intelligence community have prescribed the regulations required under such section 304 and which have not." [For definitions of terms used in section 305(b) of Pub. L. 113-293, set out above, see section 2 of Pub. L. 113-293, set out as a note under section 3003 of this title.]

INITIAL REPORT Pub. L. 117-103, §308, 136 Stat. 970, provided that: "In the first report submitted by the Director of National Intelligence under subsection (e) of such section 304 [50 U.S.C. 3073a(e)], as amended by paragraph (1), the Director shall include an assessment of the licensing requirements under the Arms Export Control Act (22 U.S.C. 2751 et seq.) and recommendations with respect to strengthening the activities regulated under such section 304."

congressional intelligence committees

The term "congressional intelligence committees" means-(A) the Select Committee on Intelligence of the Senate; and(B) the Permanent Select Committee on Intelligence of the House of Representatives.

counterintelligence

The term "counterintelligence" means information gathered, and activities conducted, to protect against espionage, other intelligence activities, sabotage, or assassinations conducted by or on behalf of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities.

intelligence community

The term "intelligence community" includes the following:(A) The Office of the Director of National Intelligence.(B) The Central Intelligence Agency.(C) The National Security Agency.(D) The Defense Intelligence Agency.(E) The National Geospatial-Intelligence Agency.(F) The National Reconnaissance Office.(G) Other offices within the Department of Defense for the collection of specialized national intelligence through reconnaissance programs.(H) The intelligence elements of the Army, the Navy, the Air Force, the Marine Corps, the Space Force, the Coast Guard, the Federal Bureau of Investigation, the Drug Enforcement Administration, and the Department of Energy.(I) The Bureau of Intelligence and Research of the Department of State.(J) The Office of Intelligence and Analysis of the Department of the Treasury.(K) The Office of Intelligence and Analysis of the Department of Homeland Security.(L) Such other elements of any department or agency as may be designated by the President, or designated jointly by the Director of National Intelligence and the head of the department or agency concerned, as an element of the intelligence community.

intelligence

The term "intelligence" includes foreign intelligence and counterintelligence.

national intelligence

The terms "national intelligence" and "intelligence related to national security" refer to all intelligence, regardless of the source from which derived and including information gathered within or outside the United States, that-(A) pertains, as determined consistent with any guidance issued by the President, to more than one United States Government agency; and(B) that involves-(i) threats to the United States, its people, property, or interests;(ii) the development, proliferation, or use of weapons of mass destruction; or(iii) any other matter bearing on United States national or homeland security.