10 USC Ch. 307: TEST AND EVALUATION

From Title 10—ARMED FORCESSubtitle A—General Military LawPART V—ACQUISITIONSubpart E—Research and Engineering

CHAPTER 307—TEST AND EVALUATION

Sec.

4171.

Operational test and evaluation of defense acquisition programs.

4172.

Major systems and munitions programs: survivability testing and lethality testing required before full-scale production.

4173.

Department of Defense Test Resource Management Center.

4174.

Contracts: acquisition, construction, or furnishing of test facilities and equipment.

4175.

Use of test and evaluation installations by commercial entities.

Editorial Notes

Codification

Pub. L. 116–283, div. A, title XVIII, §1844(a), Jan. 1, 2021, 134 Stat. 4245, initially enacted chapter 307 of this title, consisting of sections 4141 to 4147, which was to become effective Jan. 1, 2022. However, Pub. L. 117–81, div. A, title XVII, §1701(u)(5)(A), Dec. 27, 2021, 135 Stat. 2153, amended section 1844(a) of Pub. L. 116–283, effective as if included therein, so that instead of enacting chapter 307, it enacted chapter 305 of this title consisting of sections 4141 to 4144.

Amendments

2021—Pub. L. 117–81, div. A, title XVII, §1701(u)(6)(A), (C), Dec. 27, 2021, 135 Stat. 2154, amended Pub. L. 116–283, div. A, title XVIII, §1845(a), Jan. 1, 2021, 134 Stat. 4247, which added this analysis, by redesignating chapter 309 as this chapter and by adding items 4174 and 4175.

Statutory Notes and Related Subsidiaries

Pilot Program To Test Machine-Vision Technologies To Determine the Authenticity and Security of Microelectronic Parts in Weapon Systems

Pub. L. 115–232, div. A, title VIII, §843, Aug. 13, 2018, 132 Stat. 1878, as amended by Pub. L. 116–283, div. A, title XVIII, §§1806(e)(3)(C), 1866(d)(1), Jan. 1, 2021, 134 Stat. 4156, 4280, provided that:

"(a) Pilot Program Authorized.—The Undersecretary of Defense for Research and Engineering, in coordination with the Defense Microelectronics Activity, shall establish a pilot program to test the feasibility and reliability of using machine-vision technologies to determine the authenticity and security of microelectronic parts in weapon systems.

"(b) Objectives of Pilot Program.—The Undersecretary of Defense for Research and Engineering, in coordination with the Defense Microelectronics Activity, shall design any pilot program conducted under this section to determine the following:

"(1) The effectiveness and technology readiness level of machine-vision technologies to determine the authenticity of microelectronic parts at the time of the creation of such part through final insertion of such part into weapon systems.

"(2) The best method of incorporating machine-vision technologies into the process of developing, transporting, and inserting microelectronics into weapon systems.

"(3) The rules, regulations, or processes that hinder the development and incorporation of machine-vision technologies, and the application of such rules, regulations, or processes to mitigate counterfeit microelectronics proliferation throughout the Department of Defense.

"(c) Consultation.—To develop the pilot program under this section, the Undersecretary of Defense for Research and Engineering, in coordination with the Defense Microelectronics Activity, may consult with the following entities:

"(1) Manufacturers of semiconductors or electronics.

"(2) Industry associations relating to semiconductors or electronics.

"(3) Original equipment manufacturers of products for the Department of Defense.

"(4) Nontraditional defense contractors (as defined in section 3014 of title 10, United States Code) that are machine vision companies.

"(5) Federal laboratories (as defined in section 4801(5) of title 10, United States Code).

"(6) Other elements of the Department of Defense that fall under the authority of the Undersecretary of Defense for Research and Engineering.

"(d) Commencement and Duration.—The pilot program established under this section shall be established not later than April 1, 2019, and all activities under such pilot program shall terminate not later than December 31, 2020."

[Pub. L. 116–283, §1866(d)(1)(A), which directed amendment of section 843(c)(4) of Pub. L. 115–232, set out above, by substituting "section 3021" for "section 2302(9)", could not be executed because of the intervening amendment by section 1806(e)(3)(C) of Pub. L. 116–283, which had substituted "section 3014" for "section 2302(9)".]

§4171. Operational test and evaluation of defense acquisition programs

(a) Condition for Proceeding Beyond Low-rate Initial Production.—(1) The Secretary of Defense shall provide that a covered major defense acquisition program, a covered designated major subprogram, or an element of the ballistic missile defense system may not proceed beyond low-rate initial production until initial operational test and evaluation of the program, subprogram, or element is completed.

(2) In this subsection:

(A) The term "covered major defense acquisition program" means a major defense acquisition program that involves the acquisition of a weapon system that is a major system.

(B) The term "covered designated major subprogram" means a major subprogram designated under section 4203(a)(1) of this title that is a major subprogram of a covered major defense acquisition program.

(b) Operational Test and Evaluation.—(1) Operational testing of a major defense acquisition program may not be conducted until the Director of Operational Test and Evaluation of the Department of Defense approves (in writing) the adequacy of the plans (including the projected level of funding) for operational test and evaluation to be conducted in connection with that program.

(2) The Director shall analyze the results of the operational test and evaluation conducted for each major defense acquisition program. At the conclusion of such testing, the Director shall prepare a report stating—

(A) the opinion of the Director as to—

(i) whether the test and evaluation performed were adequate; and

(ii) whether the results of such test and evaluation confirm that the items or components actually tested are effective and suitable for combat; and

(B) additional information on the operational capabilities of the items or components that the Director considers appropriate based on the testing conducted.

(3) The Director shall submit each report under paragraph (2) to the Secretary of Defense, the Under Secretary of Defense for Acquisition and Sustainment, the Under Secretary of Defense for Research and Engineering, and the congressional defense committees. Each such report shall be submitted to those committees in precisely the same form and with precisely the same content as the report originally was submitted to the Secretary and Under Secretary and shall be accompanied by such comments as the Secretary may wish to make on the report.

(4) A final decision within the Department of Defense to proceed with a major defense acquisition program beyond low-rate initial production may not be made until the Director has submitted to the Secretary of Defense the report with respect to that program under paragraph (2) and the congressional defense committees have received that report.

(5) If, before a final decision described in paragraph (4) is made for a major defense acquisition program, a decision is made within the Department of Defense to proceed to operational use of that program or to make procurement funds available for that program, the Director shall submit to the Secretary of Defense and the congressional defense committees the report with respect to that program under paragraph (2) as soon as practicable after the decision described in this paragraph is made.

(6) In this subsection, the term "major defense acquisition program" has the meaning given that term in section 139(a)(2)(B) of this title.

(c) Determination of Quantity of Articles Required for Operational Testing.—The quantity of articles of a new system that are to be procured for operational testing shall be determined by—

(1) the Director of Operational Test and Evaluation of the Department of Defense, in the case of a new system that is a major defense acquisition program (as defined in section 139(a)(2)(B) of this title); or

(2) the operational test and evaluation agency of the military department concerned, in the case of a new system that is not a major defense acquisition program.

(d) Impartiality of Contractor Testing Personnel.—In the case of a major defense acquisition program (as defined in subsection (a)(2)), no person employed by the contractor for the system being tested may be involved in the conduct of the operational test and evaluation required under subsection (a). The limitation in the preceding sentence does not apply to the extent that the Secretary of Defense plans for persons employed by that contractor to be involved in the operation, maintenance, and support of the system being tested when the system is deployed in combat.

(e) Impartial Contracted Advisory and Assistance Services.—(1) The Director may not contract with any person for advisory and assistance services with regard to the test and evaluation of a system if that person participated in (or is participating in) the development, production, or testing of such system for a military department or Defense Agency (or for another contractor of the Department of Defense).

(2) The Director may waive the limitation under paragraph (1) in any case if the Director determines in writing that sufficient steps have been taken to ensure the impartiality of the contractor in providing the services. The Inspector General of the Department of Defense shall review each such waiver and shall include in the Inspector General's semi-annual report an assessment of those waivers made since the last such report.

(3)(A) A contractor that has participated in (or is participating in) the development, production, or testing of a system for a military department or Defense Agency (or for another contractor of the Department of Defense) may not be involved (in any way) in the establishment of criteria for data collection, performance assessment, or evaluation activities for the operational test and evaluation.

(B) The limitation in subparagraph (A) does not apply to a contractor that has participated in such development, production, or testing solely in testing for the Federal Government.

(f) Source of Funds for Testing.—The costs for all tests required under subsection (a) shall be paid from funds available for the system being tested.

(g) Director's Annual Report.—As part of the annual report of the Director under section 139 of this title, the Director shall describe for each program covered in the report the status of test and evaluation activities in comparison with the test and evaluation master plan for that program, as approved by the Director. The Director shall include in such annual report a description of each waiver granted under subsection (e)(2) since the last such report.

(h) Operational Test and Evaluation Defined.—In this section, the term "operational test and evaluation" has the meaning given that term in section 139(a)(2)(A) of this title. For purposes of subsection (a), that term does not include an operational assessment based exclusively on—

(1) computer modeling;

(2) simulation; or

(3) an analysis of system requirements, engineering proposals, design specifications, or any other information contained in program documents.

(Added Pub. L. 101–189, div. A, title VIII, §802(a)(1), Nov. 29, 1989, 103 Stat. 1484, §2399; amended Pub. L. 102–484, div. A, title VIII, §819, Oct. 23, 1992, 106 Stat. 2458; Pub. L. 103–160, div. A, title IX, §904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103–337, div. A, title X, §1070(a)(11), (f), Oct. 5, 1994, 108 Stat. 2856, 2859; Pub. L. 104–106, div. A, title XV, §1502(a)(19), Feb. 10, 1996, 110 Stat. 504; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–107, div. A, title X, §1048(b)(2), Dec. 28, 2001, 115 Stat. 1225; Pub. L. 107–314, div. A, title X, §1062(a)(9), Dec. 2, 2002, 116 Stat. 2650; Pub. L. 108–136, div. A, title X, §1043(b)(14), Nov. 24, 2003, 117 Stat. 1611; Pub. L. 109–364, div. A, title II, §231(a), Oct. 17, 2006, 120 Stat. 2131; Pub. L. 111–383, div. A, title VIII, §814(d), Jan. 7, 2011, 124 Stat. 4267; Pub. L. 115–91, div. A, title XVI, §1677(a), Dec. 12, 2017, 131 Stat. 1774; Pub. L. 116–92, div. A, title IX, §902(62), Dec. 20, 2019, 133 Stat. 1550; renumbered §4171 and amended Pub. L. 116–283, div. A, title XVIII, §§1845(b), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4247, 4294; Pub. L. 117–81, div. A, title XVII, §1701(d)(10), (u)(6)(B), Dec. 27, 2021, 135 Stat. 2137, 2154.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1845(b), as amended by Pub. L. 117–81, §1701(u)(6)(B), renumbered section 2399 of this title as this section.

Subsec. (a)(2)(A). Pub. L. 117–81, §1701(d)(10)(A), struck out "within the meaning of that term in section 3041 of this title" before period at end.

Pub. L. 116–283, §1883(b)(2), substituted "section 3041" for "section 2302(5)".

Subsec. (a)(2)(B). Pub. L. 117–81, §1701(d)(10)(B), which directed the substitution of "under section 4203(a)(1) of this title" for "under" and all that followed through "this title", was not executed in light of the prior amendment by section 1883(b)(2) of Pub. L. 116—283, to reflect the probable intent of Congress. See note below.

Pub. L. 116–283, §1883(b)(2), substituted "section 4203(a)(1)" for "section 2430a(a)(1)".

2019—Subsec. (b)(3). Pub. L. 116–92 substituted "Under Secretary of Defense for Acquisition and Sustainment, the Under Secretary of Defense for Research and Engineering," for "Under Secretary of Defense for Acquisition, Technology, and Logistics,".

2017—Subsec. (a)(1). Pub. L. 115–91 substituted ", a covered designated major subprogram, or an element of the ballistic missile defense system" for "or a covered designated major subprogram" and "program, subprogram, or element" for "program or subprogram".

2011—Subsec. (a). Pub. L. 111–383 amended subsec. (a) generally. Prior to amendment, text read as follows:

"(1) The Secretary of Defense shall provide that a major defense acquisition program may not proceed beyond low-rate initial production until initial operational test and evaluation of the program is completed.

"(2) In this subsection, the term 'major defense acquisition program' means a conventional weapons system that—

"(A) is a major system within the meaning of that term in section 2302(5) of this title; and

"(B) is designed for use in combat."

2006—Subsec. (b)(2). Pub. L. 109–364, §231(a)(1), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "The Director shall analyze the results of the operational test and evaluation conducted for each major defense acquisition program. At the conclusion of such testing, the Director shall prepare a report stating the opinion of the Director as to—

"(A) whether the test and evaluation performed were adequate; and

"(B) whether the results of such test and evaluation confirm that the items or components actually tested are effective and suitable for combat."

Subsec. (b)(5), (6). Pub. L. 109–364, §231(a)(2), (3), added par. (5) and redesignated former par. (5) as (6).

2003—Subsec. (h). Pub. L. 108–136 substituted "Operational Test and Evaluation Defined" for "Definitions" in heading, struck out introductory provisions which read "In this section:", substituted "In this section, the term" for "(1) The term", redesignated subpars. (A) to (C) of former par. (1) as pars. (1) to (3), respectively, realigned margins, and struck out former par. (2) which defined "congressional defense committees" to mean the Committees on Armed Services and Appropriations of the Senate and the House of Representatives.

2002—Subsec. (a)(2). Pub. L. 107–314 substituted "means a conventional weapons system that" for "means" in introductory provisions and struck out "a conventional weapons system that" before "is a major system" in subpar. (A).

2001—Subsec. (b)(3). Pub. L. 107–107 substituted "Under Secretary of Defense for Acquisition, Technology, and Logistics" for "Under Secretary of Defense for Acquisition and Technology".

1999—Subsec. (h)(2)(B). Pub. L. 106–65 substituted "Committee on Armed Services" for "Committee on National Security".

1996—Subsec. (h)(2). Pub. L. 104–106 substituted "means—" and subpars. (A) and (B) for "means the Committees on Armed Services and the Committees on Appropriations of the Senate and House of Representatives."

1994—Subsecs. (b)(5), (c)(1). Pub. L. 103–337, §1070(a)(11)(A), substituted "139(a)(2)(B)" for "138(a)(2)(B)".

Subsec. (e)(3)(B). Pub. L. 103–337, §1070(f), substituted "solely in testing for" for "solely as a representative of".

Subsec. (g). Pub. L. 103–337, §1070(a)(11)(B), substituted "139" for "138".

Subsec. (h)(1). Pub. L. 103–337, §1070(a)(11)(C), substituted "139(a)(2)(A)" for "138(a)(2)(A)".

1993—Subsec. (b)(3). Pub. L. 103–160 substituted "Under Secretary of Defense for Acquisition and Technology" for "Under Secretary of Defense for Acquisition".

1992—Subsec. (e)(3). Pub. L. 102–484 designated existing provisions as subpar. (A) and added subpar. (B).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1701(d)(10) of Pub. L. 117–81 to take effect immediately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by section 1701(u)(6)(B) of Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

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

Termination of Reporting Requirements

For termination, effective Dec. 31, 2021, of provisions in subsec. (g) of this section requiring submittal of annual report to Congress, see section 1061 of Pub. L. 114–328, set out as a note under section 111 of this title.

Enhancements to Transparency in Test and Evaluation Processes and Data

Pub. L. 115–91, div. A, title VIII, §839, Dec. 12, 2017, 131 Stat. 1475, provided that:

"(a) Additional Test and Evaluation Duties of Military Secretaries and Defense Agency Heads.—

"(1) Report on comparison of operational test and evaluation results to legacy items or components.—Concurrent with the submission of a report required under section 2399(b)(2) of title 10, United States Code [now 10 U.S.C. 4171(b)(2)], the Secretary of a military department or the head of a Defense Agency may provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] and the Secretary of Defense a report describing of the performance of the items or components evaluated as part of the operational test and evaluation for each major defense acquisition program conducted under such section by the Director of Operational Test and Evaluation in relation to comparable legacy items or components, if such items or components exist and relevant data are available without requiring additional testing.

"(2) Additional report on operational test and evaluation activities.—Within 45 days after the submission of an annual report required by section 139(h) of title 10, United States Code, the Secretaries of the military departments may each submit to the congressional defense committees a report addressing any concerns related to information included in the annual report, or providing updated or additional information, as appropriate.

"(b) Requirements for Collection of Cost Data on Test and Evaluation.—

"(1) In general.—Not later than one year after the date of the enactment of this Act [Dec. 12, 2017] and subject to paragraph (2), the Director of Operational Test and Evaluation, the senior official of the Department of Defense with responsibility for developmental testing, and the Director of the Test Resource Management Center shall jointly develop policies, procedures, guidance, and a method to collect data that ensures that consistent and high quality data are collected on the full range of estimated and actual developmental, live fire, and operational testing costs for major defense acquisition programs.

"(2) Concurrence and coordination required.—Before implementing the policies, procedures, guidance, and method developed under paragraph (1), the Director of Operational Test and Evaluation, the senior official of the Department of Defense with responsibility for developmental testing, and the Director of the Test Resource Management Center shall—

"(A) obtain the concurrence of the Director for Cost Assessment and Program Evaluation; and

"(B) coordinate with the Secretaries of the military departments.

"(3) Data requirements.—

"(A) Electronic database.—Data on estimated and actual developmental, live fire, and operational testing costs shall be maintained in an electronic database maintained by the Director for Cost Assessment and Program Evaluation or another appropriate official of the Department of Defense, and shall be made available for analysis by testing, acquisition, and other appropriate officials of the Department of Defense, as determined by the Director of Operational Test and Evaluation, the senior official of the Department of Defense with responsibility for developmental testing, or the Director of the Test Resource Management Center.

"(B) Diaggregation [sic] by costs.—To the maximum extent practicable, data collected under this subsection shall be set forth separately by costs for developmental testing, operational testing, and training.

"(c) Major Defense Acquisition Program Defined.—In this section, the term 'major defense acquisition program' has the meaning provided in section 2430 of title 10, United States Code [now 10 U.S.C. 4201]."

§4172. Major systems and munitions programs: survivability testing and lethality testing required before full-scale production

(a) Requirements.—(1) The Secretary of Defense shall provide that—

(A) a covered system may not proceed beyond low-rate initial production until realistic survivability testing of the system is completed in accordance with this section and the report required by subsection (d) with respect to that testing is submitted in accordance with that subsection; and

(B) a major munition program or a missile program may not proceed beyond low-rate initial production until realistic lethality testing of the program is completed in accordance with this section and the report required by subsection (d) with respect to that testing is submitted in accordance with that subsection.

(2) The Secretary of Defense shall provide that a covered product improvement program may not proceed beyond low-rate initial production until—

(A) in the case of a product improvement to a covered system, realistic survivability testing is completed in accordance with this section; and

(B) in the case of a product improvement to a major munitions program or a missile program, realistic lethality testing is completed in accordance with this section.

(b) Test Guidelines.—(1) Survivability and lethality tests required under subsection (a) shall be carried out sufficiently early in the development phase of the system or program (including a covered product improvement program) to allow any design deficiency demonstrated by the testing to be corrected in the design of the system, munition, or missile (or in the product modification or upgrade to the system, munition, or missile) before proceeding beyond low-rate initial production.

(2) The costs of all tests required under that subsection shall be paid from funds available for the system being tested.

(c) Waiver Authority.—(1) The Secretary of Defense may waive the application of the survivability and lethality tests of this section to a covered system, munitions program, missile program, or covered product improvement program if the Secretary determines that live-fire testing of such system or program would be unreasonably expensive and impractical and submits a certification of that determination to Congress—

(A) before Milestone B approval for the system or program; or

(B) in the case of a system or program initiated at—

(i) Milestone B, as soon as is practicable after the Milestone B approval; or

(ii) Milestone C, as soon as is practicable after the Milestone C approval.

(2) In the case of a covered system (or covered product improvement program for a covered system), the Secretary may waive the application of the survivability and lethality tests of this section to such system or program and instead allow testing of the system or program in combat by firing munitions likely to be encountered in combat at components, subsystems, and subassemblies, together with performing design analyses, modeling and simulation, and analysis of combat data. Such alternative testing may not be carried out in the case of any covered system (or covered product improvement program for a covered system) unless the Secretary certifies to Congress, before the system or program enters system development and demonstration, that the survivability and lethality testing of such system or program otherwise required by this section would be unreasonably expensive and impracticable.

(3) The Secretary shall include with any certification under paragraph (1) or (2) a report explaining how the Secretary plans to evaluate the survivability or the lethality of the system or program and assessing possible alternatives to realistic survivability testing of the system or program.

(4) In time of war or mobilization, the President may suspend the operation of any provision of this section.

(d) Reporting to Congress.—(1) At the conclusion of survivability or lethality testing under subsection (a), the Secretary of Defense shall submit a report on the testing to the congressional defense committees. Each such report shall describe the results of the survivability or lethality testing and shall give the Secretary's overall assessment of the testing.

(2) If a decision is made within the Department of Defense to proceed to operational use of a system, or to make procurement funds available for a system, before Milestone C approval of that system, the Secretary of Defense shall submit to the congressional defense committees, as soon as practicable after such decision, the following:

(A) A report describing the status of survivability and live fire testing of that system.

(B) The report required under paragraph (1).

(e) Definitions.—In this section:

(1) The term "covered system" means—

(A) a vehicle, weapon platform, or conventional weapon system that—

(i) includes features designed to provide some degree of protection to users in combat; and

(ii) is a major system as defined in section 3041 of this title; or

(B) any other system or program designated by the Secretary of Defense for purposes of this section.

(2) The term "major munitions program" means—

(A) a munition program for which more than 1,000,000 rounds are planned to be acquired; or

(B) a conventional munitions program that is a major system within the meaning of that term in section 3041 of this title.

(3) The term "realistic survivability testing" means, in the case of a covered system (or a covered product improvement program for a covered system), testing for vulnerability of the system in combat by firing munitions likely to be encountered in combat (or munitions with a capability similar to such munitions) at the system configured for combat, with the primary emphasis on testing vulnerability with respect to potential user casualties and taking into equal consideration the susceptibility to attack and combat performance of the system.

(4) The term "realistic lethality testing" means, in the case of a major munitions program or a missile program (or a covered product improvement program for such a program), testing for lethality by firing the munition or missile concerned at appropriate targets configured for combat.

(5) The term "configured for combat", with respect to a weapon system, platform, or vehicle, means loaded or equipped with all dangerous materials (including all flammables and explosives) that would normally be on board in combat.

(6) The term "covered product improvement program" means a program under which—

(A) a modification or upgrade will be made to a covered system which (as determined by the Secretary of Defense) is likely to affect significantly the survivability of such system; or

(B) a modification or upgrade will be made to a major munitions program or a missile program which (as determined by the Secretary of Defense) is likely to affect significantly the lethality of the munition or missile produced under the program.

(7) The term "Milestone B approval" means a decision to enter into system development and demonstration pursuant to guidance prescribed by the Secretary of Defense for the management of Department of Defense acquisition programs.

(8) The term "Milestone C approval" means a decision to enter into production and deployment pursuant to guidance prescribed by the Secretary of Defense for the management of Department of Defense acquisition programs.

(Added Pub. L. 99–500, §101(c) [title X, §910(a)(1)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-143, and Pub. L. 99–591, §101(c) [title X, §910(a)(1)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-143, §2366; Pub. L. 99–661, div. A, title IX, formerly title IV, §910(a)(1), Nov. 14, 1986, 100 Stat. 3923, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100–180, div. A, title VIII, §802, title XII, §1231(11), Dec. 4, 1987, 101 Stat. 1123, 1160; Pub. L. 100–456, div. A, title XII, §1233(l)(3), Sept. 29, 1988, 102 Stat. 2058; Pub. L. 101–189, div. A, title VIII, §§802(c)(1)–(4)(A), 804, Nov. 29, 1989, 103 Stat. 1486, 1488; Pub. L. 101–510, div. A, title XIV, §1484(h)(7), Nov. 5, 1990, 104 Stat. 1718; Pub. L. 103–160, div. A, title VIII, §828(d)(2), Nov. 30, 1993, 107 Stat. 1715; Pub. L. 103–355, title III, §3014, Oct. 13, 1994, 108 Stat. 3332; Pub. L. 104–106, div. A, title XV, §1502(a)(18), Feb. 10, 1996, 110 Stat. 504; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107–107, div. A, title VIII, §821(a), Dec. 28, 2001, 115 Stat. 1181; Pub. L. 107–314, div. A, title VIII, §818, Dec. 2, 2002, 116 Stat. 2611; Pub. L. 108–136, div. A, title X, §1043(b)(13), Nov. 24, 2003, 117 Stat. 1611; Pub. L. 110–417, [div. A], title II, §251(a), (b), Oct. 14, 2008, 122 Stat. 4400; renumbered §4172 and amended Pub. L. 116–283, div. A, title XVIII, §§1845(b), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4247, 4294; Pub. L. 117–81, div. A, title XVII, §1701(u)(6)(B), Dec. 27, 2021, 135 Stat. 2154.)

Editorial Notes

Codification

Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical sections.

Amendments

2021—Pub. L. 116–283, §1845(b), as amended by Pub. L. 117–81, §1701(u)(6)(B), renumbered section 2366 of this title as this section.

Subsec. (e)(1)(A)(ii), (2)(B). Pub. L. 116–283, §1883(b)(2), substituted "section 3041" for "section 2302(5)".

2008—Subsec. (d). Pub. L. 110–417, §251(b), designated existing provisions as par. (1) and added par. (2).

Subsec. (e)(1). Pub. L. 110–417, §251(a), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "The term 'covered system' means a vehicle, weapon platform, or conventional weapon system—

"(A) that includes features designed to provide some degree of protection to users in combat; and

"(B) that is a major system within the meaning of that term in section 2302(5) of this title."

2003—Subsec. (e)(7) to (9). Pub. L. 108–136 redesignated pars. (8) and (9) as (7) and (8), respectively, and struck out former par. (7) which read as follows: "The term 'congressional defense committees' means—

"(A) the Committee on Armed Services and the Committee on Appropriations of the Senate; and

"(B) the Committee on Armed Services and the Committee on Appropriations of the House of Representatives."

2002—Subsec. (c)(1). Pub. L. 107–314, §818(a), amended par. (1) generally. Prior to amendment par. (1) read as follows: "The Secretary of Defense may waive the application of the survivability and lethality tests of this section to a covered system, munitions program, missile program, or covered product improvement program if the Secretary, before the system or program enters system development and demonstration, certifies to Congress that live-fire testing of such system or program would be unreasonably expensive and impractical."

Subsec. (e)(8), (9). Pub. L. 107–314, §818(b), added pars. (8) and (9).

2001—Subsec. (c)(1), (2). Pub. L. 107–107 substituted "system development and demonstration" for "engineering and manufacturing development".

1999—Subsec. (e)(7)(B). Pub. L. 106–65 substituted "Committee on Armed Services" for "Committee on National Security".

1996—Subsec. (d). Pub. L. 104–106, §1502(a)(18)(A), substituted "the congressional defense committees" for "the Committees on Armed Services and on Appropriations of the Senate and House of Representatives".

Subsec. (e)(7). Pub. L. 104–106, §1502(a)(18)(B), added par. (7).

1994—Subsec. (c)(1). Pub. L. 103–355, §3014(a)(2), (b), substituted "engineering and manufacturing development" for "full-scale engineering development" in first sentence and redesignated second sentence as par. (3).

Subsec. (c)(2). Pub. L. 103–355, §3014(a)(1), (3), added par. (2) and redesignated former par. (2) as (4).

Subsec. (c)(3). Pub. L. 103–355, §3014(a)(2), redesignated second sentence of par. (1) as par. (3) and substituted "certification under paragraph (1) or (2)" for "such certification".

Subsec. (c)(4). Pub. L. 103–355, §3014(a)(1), redesignated par. (2) as (4).

1993—Subsec. (d). Pub. L. 103–160 substituted "to the Committees on Armed Services and on Appropriations of the Senate and House of Representatives" for "to the defense committees of Congress (as defined in section 2362(e)(3) of this title)".

1990—Subsec. (a)(1)(A), (B). Pub. L. 101–510 made technical correction to directory language of Pub. L. 101–189, §804(a), see 1989 Amendment note below.

1989—Pub. L. 101–189, §802(c)(4)(A), substituted "testing and lethality testing required before full-scale production" for "and lethality testing; operational testing" in section catchline.

Subsec. (a)(1)(A). Pub. L. 101–189, §§802(c)(1)(A), 804(a), as amended by Pub. L. 101–510, substituted "this section and the report required by subsection (d) with respect to that testing is submitted in accordance with that subsection; and" for "this section;".

Subsec. (a)(1)(B). Pub. L. 101–189, §§802(c)(1)(B), 804(a), as amended by Pub. L. 101–510, substituted "this section and the report required by subsection (d) with respect to that testing is submitted in accordance with that subsection." for "this section; and".

Subsec. (a)(1)(C). Pub. L. 101–189, §802(c)(1)(C), struck out subpar. (C) which read as follows: "a major defense acquisition program may not proceed beyond low-rate initial production until initial operational test and evaluation of the program is completed in accordance with this section."

Subsec. (b)(2), (3). Pub. L. 101–189, §802(c)(2), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: "In the case of a major defense acquisition program, no person employed by the contractor for the system being tested may be involved in the conduct of the operational test and evaluation required under subsection (a). The limitation in the preceding sentence does not apply to the extent that the Secretary of Defense plans for persons employed by that contractor to be involved in the operation, maintenance, and support of the system being tested when the system is deployed in combat."

Subsec. (d). Pub. L. 101–189, §804(b), inserted at end "Each such report shall describe the results of the survivability or lethality testing and shall give the Secretary's overall assessment of the testing."

Subsec. (e)(3) to (8). Pub. L. 101–189, §802(c)(3), redesignated pars. (4), (5), (6), and (8) as (3), (4), (5), and (6), respectively, and struck out former par. (3) which defined "major defense acquisition program" and former par. (7) which defined "operational test and evaluation".

1988—Subsec. (a)(2). Pub. L. 100–456 made technical correction to directory language of Pub. L. 100–180, §802(a)(1)(C). See 1987 Amendment note below.

1987—Subsec. (a). Pub. L. 100–180, §802(a)(1), as amended by Pub. L. 100–456, designated existing provisions as par. (1), redesignated former pars. (1) to (3) as subpars. (A) to (C), and added par. (2).

Subsec. (b)(1). Pub. L. 100–180, §802(a)(2), inserted "(including a covered product improvement program)" after "system or program" and "(or in the product modification or upgrade to the system, munition, or missile)" after "or missile".

Subsec. (b)(2). Pub. L. 100–180, §802(b), inserted at end "The limitation in the preceding sentence does not apply to the extent that the Secretary of Defense plans for persons employed by that contractor to be involved in the operation, maintenance, and support of the system being tested when the system is deployed in combat."

Subsec. (c). Pub. L. 100–180, §802(a)(3), (c), (d)(1), designated existing provisions as par. (1), substituted "missile program, or covered product improvement program" for "or missile program", and inserted at end "The Secretary shall include with any such certification a report explaining how the Secretary plans to evaluate the survivability or the lethality of the system or program and assessing possible alternatives to realistic survivability testing of the system or program."

Pub. L. 100–180, §802(d)(2), designated existing provisions of former subsec. (d) as par. (2) of subsec. (c) and struck out heading of former subsec. (d) "Waiver in time of war or mobilization".

Subsec. (d). Pub. L. 100–180, §802(d)(3), added subsec. (d). Former subsec. (d) redesignated subsec. (c)(2).

Subsec. (e)(1)(B). Pub. L. 100–180, §1231(11), substituted "section 2302(5)" for "section 2303(5)".

Subsec. (e)(4). Pub. L. 100–180, §802(a)(4)(A), (e), inserted "(or a covered product improvement program for a covered system)" after "covered system", struck out "and survivability" after "for vulnerability", and substituted "susceptibility to attack" for "operational requirements".

Subsec. (e)(5). Pub. L. 100–180, §802(a)(4)(B), inserted "(or a covered product improvement program for such a program)" after "missile program".

Subsec. (e)(8). Pub. L. 100–180, §802(a)(4)(C), added par. (8).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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

Effective Date of 1988 Amendment

Pub. L. 100–456, div. A, title XII, §1233(l)(5), Sept. 29, 1988, 102 Stat. 2058, provided that: "The amendments made by this subsection [amending this section and sections 4214 and 8855 of this title and section 301c of Title 37, Pay and Allowances of the Uniformed Services] shall apply as if included in the enactment of Public Law 100–180."

Effective Date

Pub. L. 99–500, §101(c) [title X, §910(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783-145, Pub. L. 99–591, §101(c) [title X, §910(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341-145, and Pub. L. 99–661, div. A, title IX, formerly title IV, §910(b), Nov. 14, 1986, 100 Stat. 3924, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "Section 2366 of title 10, United States Code [now 10 U.S.C. 4172] (as added by subsection (a)), shall apply with respect to any decision to proceed with a program beyond low-rate initial production that is made—

"(1) after May 31, 1987, in the case of a decision referred to in subsection (a)(1) or (a)(2) of such section; or

"(2) after the date of the enactment of this Act [Oct. 18, 1986], in the case of a decision referred to in subsection (a)(3) of such section."

Consideration of Lethality in the Analysis of Alternatives for Munitions

Pub. L. 118–31, div. A, title II, §242, Dec. 22, 2023, 137 Stat. 208, provided that:

"(a) Analysis of Alternatives Review.—The Secretary of Defense shall ensure that lethality is considered in any analysis of alternatives conducted prior to issuing a capability development document for purposes of procuring any new munition or modifying an existing munition.

"(b) Consideration of Energetic Materials.—In assessing the lethality of a munition for purposes of the analysis of alternatives described under subsection (a), the Secretary of Defense shall include the margin of effectiveness, increased system capacities, and cost implications afforded by the potential use of novel or alternative energetic materials in the munition to achieve increased explosive effects.

"(c) Energetic Materials Defined.—In this section, the term 'energetic materials' means critical chemicals that—

"(1) release large amounts of energy in a short amount of time; and

"(2) are capable of being used in explosives that create lethal effects in warheads."

Pilot Program on Incorporation of the CL20 Compound in Certain Weapon Systems

Pub. L. 118–31, div. A, title II, §243, Dec. 22, 2023, 137 Stat. 209, provided that:

"(a) Pilot Program Required.—The Secretary of Defense shall carry out a pilot program under which the Secretary incorporates the CL20 compound as the energetic material for the main fill in the warheads or propellants of three weapon systems under development by the Department of Defense for the purpose of determining cost, schedule, and lethality performance parameters for such systems.

"(b) Selection of Weapon Systems.—Each of the three weapon systems selected under subsection (a) shall be a weapon system that does not, as of the date of the enactment of this Act [Dec. 22, 2023], already incorporate the CL20 compound as the energetic material for the main fill in the warhead or propellant of the system.

"(c) Timeline for Integration.—The Secretary of Defense shall ensure that the CL20 energetic compound is integrated into each weapon system selected under subsection (a) by not later than three years after the date of the enactment of this Act.

"(d) Briefing.—Not later than one year after the date of the enactment of this Act, 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] a briefing on progress of the Secretary in carrying out the pilot program under this section, including—

"(1) identification of the weapon systems selected by the Secretary under subsection (a);

"(2) with respect to each such weapon system, identification of—

"(A) a timeline for incorporating the CL20 energetic compound into such weapon system;

"(B) the organization within the Department of Defense responsible for carrying out activities under the pilot program for such weapon system; and

"(C) any locations at which testing associated with such weapon system under the program is expected to be carried out; and

"(3) the baseline cost, schedule, and lethality objectives that will be used to evaluate the performance of weapon systems under the program.

"(e) Definitions.—In this section, the term 'energetic material' means critical chemicals and formulations that—

"(1) release large amounts of stored chemical energy; and

"(2) are capable of being used as explosives, propellants, pyrotechnics, and reactive materials that—

"(A) create lethal effects in warheads in kinetic weapons components and systems; or

"(B) increase propellant performance in a weapon propulsion system as related to lethal effects, range, or speed."

Development and Implementation of Digital Technologies for Survivability and Lethality Testing

Pub. L. 117–81, div. A, title II, §223, Dec. 27, 2021, 135 Stat. 1601, provided that:

"(a) Expansion of Survivability and Lethality Testing.—

"(1) In general.—The Secretary, in coordination with covered officials, shall—

"(A) expand the survivability and lethality testing of covered systems to include testing against non-kinetic threats; and

"(B) develop digital technologies to test such systems against such threats throughout the life cycle of each such system.

"(2) Development of digital technologies for live fire testing.—

"(A) In general.—The Secretary, in coordination with covered officials, shall develop—

"(i) digital technologies to enable the modeling and simulation of the live fire testing required under section 2366 of title 10, United States Code [now 10 U.S.C. 4172]; and

"(ii) a process to use data from physical live fire testing to inform and refine the digital technologies described in clause (i).

"(B) Objectives.—In carrying out subparagraph (A), the Secretary shall seek to achieve the following objectives:

"(i) Enable assessments of full spectrum survivability and lethality of each covered system with respect to kinetic and non-kinetic threats.

"(ii) Inform the development and refinement of digital technology to test and improve covered systems.

"(iii) Enable survivability and lethality assessments of the warfighting capabilities of a covered system with respect to—

"(I) communications;

"(II) firepower;

"(III) mobility;

"(IV) catastrophic survivability; and

"(V) lethality.

"(C) Demonstration activities.—

"(i) In general.—The Secretary, acting through the Director, shall carry out activities to demonstrate the digital technologies for full spectrum survivability testing developed under subparagraph (A).

"(ii) Program selection.—The Secretary shall assess and select not fewer than three and not more than ten programs of the Department to participate in the demonstration activities required under clause (i).

"(iii) Armed forces programs.—Of the programs selected pursuant to clause (ii), the Director shall select—

"(I) at least one such program from the Army;

"(II) at least one such program from the Navy or the Marine Corps; and

"(III) at least one such program from the Air Force or the Space Force.

"(3) Regular survivability and lethality testing throughout life cycle.—

"(A) In general.—The Secretary, in coordination with covered officials, shall—

"(i) develop a process to regularly test through the use of digital technologies the survivability and lethality of each covered system against kinetic and non-kinetic threats throughout the life cycle of such system as threats evolve; and

"(ii) establish guidance for such testing.

"(B) Elements.—In carrying out subparagraph (A), the Secretary shall determine the following:

"(i) When to deploy digital technologies to provide timely and up-to-date insights with respect to covered systems without unduly delaying fielding of capabilities.

"(ii) The situations in which it may be necessary to develop and use digital technologies to assess legacy fleet vulnerabilities.

"(b) Reports and Briefing.—

"(1) Assessment and selection of programs.—Not later than 180 days after the date of the enactment of this Act [Dec. 27, 2021], the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report that identifies the programs selected to participate in the demonstration activities under subsection (a)(2)(C).

"(2) Modernization and digitization report.—

"(A) In general.—Not later than March 15, 2023, the Director shall submit to the congressional defense committees a report that includes—

"(i) an assessment of the progress of the Secretary in carrying out subsection (a);

"(ii) an assessment of each of the demonstration activities carried out under subsection (a)(2)(C), including a comparison of—

"(I) the risks, benefits, and costs of using digital technologies for live fire testing and evaluation; and

"(II) the risks, benefits, and costs of traditional physical live fire testing approaches that—

"(aa) are not supported by digital technologies;

"(bb) do not include testing against non-kinetic threats; and

"(cc) do not include full spectrum survivability;

"(iii) an explanation of—

"(I) how real-world operational and digital survivability and lethality testing data will be used to inform and enhance digital technology;

"(II) the contribution of such data to the digital modernization efforts required under section 836 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283) [10 U.S.C. 3101 note]; and

"(III) the contribution of such data to the decision-support processes for managing and overseeing acquisition programs of the Department;

"(iv) an assessment of the ability of the Department to perform full spectrum survivability and lethality testing of each covered system with respect to kinetic and non-kinetic threats;

"(v) an assessment of the processes implemented by the Department to manage digital technologies developed pursuant to subsection (a); and

"(vi) an assessment of the processes implemented by the Department to develop digital technology that can perform full spectrum survivability and lethality testing with respect to kinetic and non-kinetic threats.

"(B) Briefing.—Not later than April 14, 2023, the Director shall provide to the congressional defense committees a briefing that identifies any changes to existing law that may be necessary to implement subsection (a).

"(c) Definitions.—In this section:

"(1) The term 'covered officials' means—

"(A) the Under Secretary of Defense for Research and Engineering;

"(B) the Under Secretary of Defense for Acquisition and Sustainment;

"(C) the Chief Information Officer;

"(D) the Director;

"(E) the Director of Cost Assessment and Program Evaluation;

"(F) the Service Acquisition Executives;

"(G) the Service testing commands;

"(H) the Director of the Defense Digital Service; and

"(I) representatives from—

"(i) the Department of Defense Test Resource Management Center;

"(ii) the High Performance Computing Modernization Program Office; and

"(iii) the Joint Technical Coordination Group for Munitions Effectiveness.

"(2) The term 'covered system' means any warfighting capability that can degrade, disable, deceive, or destroy forces or missions.

"(3) The term 'Department' means the Department of Defense.

"(4) The term 'digital technologies' includes digital models, digital simulations, and digital twin capabilities that may be used to test the survivability and lethality of a covered system.

"(5) The term 'Director' means the Director of Operational Test and Evaluation.

"(6) The term 'full spectrum survivability and lethality testing' means a series of assessments of the effects of kinetic and non-kinetic threats on the communications, firepower, mobility, catastrophic survivability, and lethality of a covered system.

"(7) The term 'non-kinetic threats' means unconventional threats, including—

"(A) cyber attacks;

"(B) electromagnetic spectrum operations;

"(C) chemical, biological, radiological, nuclear effects and high yield explosives; and

"(D) directed energy weapons.

"(8) The term 'Secretary' means the Secretary of Defense."

§4173. Department of Defense Test Resource Management Center

(a) Establishment as Department of Defense Field Activity.—The Secretary of Defense shall establish within the Department of Defense under section 191 of this title a Department of Defense Test Resource Management Center (hereinafter in this section referred to as the "Center"). The Secretary shall designate the Center as a Department of Defense Field Activity.

(b) Director and Deputy Director.—(1) At the head of the Center shall be a Director, selected by the Secretary from among individuals who have substantial experience in the field of test and evaluation.

(2) There shall be a Deputy Director of the Center, selected by the Secretary from among individuals who have substantial experience in the field of test and evaluation. The Deputy Director shall act for, and exercise the powers of, the Director when the Director is disabled or the position of Director is vacant.

(A) To review and provide oversight of proposed Department of Defense budgets and expenditures for—

(i) the test and evaluation facilities and resources of the Major Range and Test Facility Base of the Department of Defense; and

(ii) all other test and evaluation facilities and resources within and outside of the Department of Defense, other than budgets and expenditures for activities described in section 139(j) of this title.

(B) To review proposed significant changes to the test and evaluation facilities and resources of the Major Range and Test Facility Base, including with respect to the expansion, divestment, consolidation, or curtailment of activities, before they are implemented by the Secretaries of the military departments or the heads of the Defense Agencies with test and evaluation responsibilities and advise the Secretary of Defense and the Under Secretary of Defense for Research and Engineering of the impact of such changes on the adequacy of such test and evaluation facilities and resources to meet the test and evaluation requirements of the Department.

(D) To review proposed budgets under subsection (e) and submit reports and certifications required by such subsection.

(E) To administer the Central Test and Evaluation Investment Program and the program of the Department of Defense for test and evaluation science and technology.

(2) The Director shall have access to such records and data of the Department of Defense (including the appropriate records and data of each military department and Defense Agency) that are necessary in order to carry out the duties of the Director under this section.

(d) Quadrennial Strategic Plan for Department of Defense Test and Evaluation Resources.—(1) Not less often than once every four fiscal years, and within one year after release of the National Defense Strategy, the Under Secretary of Defense for Research and Engineering, in coordination with the Director of the Department of Defense Test Resource Management Center, the Director of Operational Test and Evaluation, the Director of the Defense Intelligence Agency, the Secretaries of the military departments, and the heads of Defense Agencies with test and evaluation responsibilities, shall complete a quadrennial strategic plan reflecting the future needs of the Department of Defense with respect to test and evaluation facilities and resources. Each quadrennial strategic plan shall cover the period of thirty fiscal years beginning with the fiscal year in which the plan is submitted under paragraph (3). The quadrennial strategic plan shall be based on a comprehensive review of both funded and unfunded test and evaluation requirements of the Department, future threats to national security, and the adequacy of the test and evaluation facilities and resources of the Department to meet those future requirements and threats.

(2) The quadrennial strategic plan shall include the following:

(A) An assessment of the test and evaluation requirements of the Department for the period covered by the plan.

(B) An identification of performance measures associated with the successful achievement of test and evaluation objectives for the period covered by the plan.

(C) An assessment of the test and evaluation facilities and resources that will be needed to meet current and future requirements for test and evaluation of the Department of Defense major weapon systems based on current and emerging threats.

(D) An assessment of the current state of the test and evaluation facilities and resources of the Department.

(E) An assessment of plans and business case analyses supporting any significant modification of the test and evaluation facilities and resources of the Department projected, proposed, or recommended by the Secretary of a military department or the head of a Defense Agency for such period, including with respect to the expansion, divestment, consolidation, or curtailment of activities.

(F) An itemization of acquisitions, upgrades, and improvements necessary to ensure that the test and evaluation facilities and resources of the Department are adequate to meet such requirements and satisfy such performance measures.

(G) An assessment of the budgetary resources necessary to implement such acquisitions, upgrades, and improvements.

(3) Upon completing a quadrennial strategic plan under paragraph (1), the Director shall submit to the Secretary of Defense a report on that plan. The report shall include the plan and a description of the review on which the plan is based.

(4) Not later than 60 days after the date on which the report is submitted under paragraph (3), the Secretary of Defense shall transmit to the Committee on Armed Services and Committee on Appropriations of the Senate and the Committee on Armed Services and Committee on Appropriations of the House of Representatives the report, together with any comments with respect to the report that the Secretary considers appropriate.

(5)(A) In addition to the quadrennial strategic plan completed under paragraph (1), the Director of the Department of Defense Test Resource Management Center shall also complete an annual update to the quadrennial strategic plan.

(B) Each annual update completed under subparagraph (A) shall include the following:

(i) A summary of changes to the assessment provided in the most recent quadrennial strategic plan.

(ii) Comments and recommendations the Director considers appropriate.

(iii) Test and evaluation challenges raised since the completion of the most recent quadrennial strategic plan.

(iv) Actions taken or planned to address such challenges.

(e) Certification of Budgets.—(1) The Secretary of Defense, acting through the Under Secretary of Defense (Comptroller), shall require that the Secretary of each military department and the head of each Defense Agency with test and evaluation responsibilities transmit such Secretary's or Defense Agency head's proposed budget for test and evaluation activities, including modeling and simulation activities, for a fiscal year and for the period covered by the future-years defense program submitted to Congress under section 221 of this title for that fiscal year to the Director of the Center for review under paragraph (2) before submitting such proposed budget to the Under Secretary of Defense (Comptroller).

(2)(A) The Director of the Center shall review each proposed budget transmitted under paragraph (1) and shall, not later than January 31 of the year preceding the fiscal year for which such budgets are proposed, submit to the Secretary of Defense a report containing the comments of the Director with respect to all such proposed budgets, together with the certification of the Director as to whether such proposed budgets are adequate.

(B) The Director shall also submit, together with such report and such certification, an additional certification as to whether such proposed budgets provide balanced support for such quadrennial strategic plan.

(3) The Secretary of Defense shall, not later than March 31 of the year preceding the fiscal year for which such budgets are proposed, submit to Congress a report on those proposed budgets which the Director has not certified under paragraph (2)(A) to be adequate. The report shall include the following matters:

(A) A discussion of the actions that the Secretary proposes to take, together with any recommended legislation that the Secretary considers appropriate, to address the inadequacy of the proposed budgets.

(B) Any additional comments that the Secretary considers appropriate regarding the inadequacy of the proposed budgets.

(f) Approval of Certain Modifications.—(1) The Secretary of a military department or the head of a Defense Agency with test and evaluation responsibilities may not implement a projected, proposed, or recommended significant modification of the test and evaluation facilities and resources of the Department, including with respect to the expansion, divestment, consolidation, or curtailment of activities, until—

(A) the Secretary or the head, as the case may be, submits to the Director a business case analysis for such modification; and

(B) the Director reviews such analysis and approves such modification.

(2) The Director shall submit to the Secretary of Defense an annual report containing the comments of the Director with respect to each business case analysis reviewed under paragraph (1)(B) during the year covered by the report.

(g) Supervision of Director by Under Secretary.—The Director of the Center shall be subject to the supervision of the Under Secretary of Defense for Research and Engineering. The Director shall report directly to the Under Secretary, without the interposition of any other supervising official.

(h) Administrative Support of Center.—The Secretary of Defense shall provide the Director with administrative support adequate for carrying out the Director's responsibilities under this section. The Secretary shall provide the support out of the headquarters activities of the Department or any other activities that the Secretary considers appropriate.

(i) Definition.—In this section, the term "Major Range and Test Facility Base" means the test and evaluation facilities and resources that are designated by the Secretary of Defense as facilities and resources comprising the Major Range and Test Facility Base.

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1845(b), as amended by Pub. L. 117–81, §1701(u)(6)(B), renumbered section 196 of this title as this section.

Subsec. (c)(1)(C). Pub. L. 116–283, §272(a)(1), inserted "quadrennial" before "strategic plan".

Subsec. (d). Pub. L. 117–81, §1081(a)(5), substituted "National Defense Strategy," for "National Defense Strategy,,".

Pub. L. 116–283, §272(a)(2), inserted "Quadrennial" before "Strategic Plan" in heading and "quadrennial" before "strategic plan" wherever appearing in text.

Subsec. (d)(1). Pub. L. 116–283, §272(e), which directed substitution of "Test Resource Management Center" for "Test Resources Management Center" in subsec. (d)(1) "of such", was executed by making substitution to "such section", meaning subsec. (d)(1) of this section, to reflect the probable intent of Congress.

Pub. L. 116–283, §272(b), substituted "four fiscal years, and within one year after release of the National Defense Strategy," for "two fiscal years" in first sentence.

Subsec. (d)(2)(C). Pub. L. 116–283, §272(c), substituted "for test and evaluation of the Department of Defense major weapon systems based on current and emerging threats." for "based on current and emerging threats and satisfy such performance measures."

Subsec. (d)(5). Pub. L. 116–283, §272(d), added par. (5).

Subsec. (e)(2)(B). Pub. L. 116–283, §272(a)(1), inserted "quadrennial" before "strategic plan".

2018—Subsec. (c)(1)(B). Pub. L. 115–232, §904, which directed substitution of "Under Secretary of Defense for Research and Engineering" for "Under Secretary of Defense for Acquisition, Technology, and Logistics", was executed by making the substitution for "Under Secretary of Acquisition, Technology, and Logistics" to reflect the probable intent of Congress.

Subsec. (d)(1). Pub. L. 115–232, §221(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "Not less often than once every two fiscal years, the Director, in coordination with the Director of Operational Test and Evaluation, the Secretaries of the military departments, and the heads of Defense Agencies with test and evaluation responsibilities, shall complete a strategic plan reflecting the needs of the Department of Defense with respect to test and evaluation facilities and resources, including modeling and simulation capabilities. Each such strategic plan shall cover the period of ten fiscal years beginning with the fiscal year in which the plan is submitted under paragraph (3). The strategic plan shall be based on a comprehensive review of the test and evaluation requirements of the Department and the adequacy of the test and evaluation facilities and resources of the Department to meet those requirements."

Subsec. (d)(2)(C). Pub. L. 115–232, §221(2), substituted "needed to meet current and future requirements based on current and emerging threats" for "needed to meet such requirements".

Subsec. (g). Pub. L. 115–232, §904, substituted "Under Secretary of Defense for Research and Engineering" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".

2017—Subsec. (d)(1). Pub. L. 115–91, §222(1), inserted ", including modeling and simulation capabilities" after "and resources" in the first sentence.

Subsec. (e)(1). Pub. L. 115–91, §222(2), inserted ", including modeling and simulation activities," after "evaluation activities".

2016—Subsec. (b)(1). Pub. L. 114–328, §502(c), struck out second and third sentences which read as follows: "A commissioned officer serving as the Director, while so serving, holds the grade of lieutenant general or, in the case of an officer of the Navy, vice admiral. A civilian officer or employee serving as the Director, while so serving, has a pay level equivalent in grade to lieutenant general."

Subsec. (c)(1)(A)(ii). Pub. L. 114–328, §1081(a)(3), substituted "section 139(j)" for "section 139(i)".

2014—Subsec. (c)(1)(B). Pub. L. 113–291, §214(a), inserted ", including with respect to the expansion, divestment, consolidation, or curtailment of activities," after "Base".

Subsec. (d)(2)(E) to (G). Pub. L. 113–291, §214(b), added subpar. (E) and redesignated former subpars. (E) and (F) as (F) and (G), respectively.

Subsec. (e)(1). Pub. L. 113–291, §214(c), inserted "and for the period covered by the future-years defense program submitted to Congress under section 221 of this title for that fiscal year" after "activities for a fiscal year".

Subsecs. (f) to (i). Pub. L. 113–291, §214(d), added subsec. (f) and redesignated former subsecs. (f) to (h) as (g) to (i), respectively.

2009—Subsec. (c). Pub. L. 111–84 inserted par. (1) designation before "The Director", redesignated former par. (1) as subpar. (A) and former subpars. (A) and (B) as cl. (i) and (ii), respectively, of subpar. (A), added subpar. (B), redesignated former pars. (2) to (4) as subpars. (C) to (E), respectively, and added par. (2).

2006—Subsec. (b)(1). Pub. L. 109–163, §902(a), substituted "individuals who have substantial experience in the field of test and evaluation." for "commissioned officers of the armed forces on active duty or from among senior civilian officers and employees of the Department of Defense."

Subsec. (b)(2). Pub. L. 109–163, §902(b), substituted "individuals" for "senior civilian officers and employees of the Department of Defense".

Subsec. (h). Pub. L. 109–163, §258(a), substituted "Secretary of Defense" for "Director of Operational Test and Evaluation".

2003—Subsec. (b)(1). Pub. L. 108–136, §212(a), substituted "on active duty or from among senior civilian officers and employees of the Department of Defense. A commissioned officer serving as the Director" for "on active duty. The Director" and inserted at end "A civilian officer or employee serving as the Director, while so serving, has a pay level equivalent in grade to lieutenant general."

Subsec. (c)(1)(B). Pub. L. 108–136, §212(b)(1), inserted ", other than budgets and expenditures for activities described in section 139(i) of this title" after "Department of Defense".

Subsec. (e)(1). Pub. L. 108–136, §212(b)(2), struck out ", the Director of Operational Test and Evaluation," after "each military department" and substituted "or Defense Agency head's" for ", Director's, or head's".

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1845(b) of Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Termination of Reporting Requirements

For termination, effective Dec. 31, 2021, of provisions in subsecs. (d)(1), (4) and (e)(3) of this section requiring submittal of report to Congress, see section 1061 of Pub. L. 114–328, set out as a note under section 111 of this title.

Protection of Major Range and Test Facility Base

Pub. L. 117–81, div. A, title XVI, §1686, Dec. 27, 2021, 135 Stat. 2126, provided that: "The Secretary of Defense may authorize, consistent with the authorities of the Secretary, such actions as are necessary to mitigate threats posed by space-based assets to the security or operation of the Major Range and Test Facility Base (as defined in section 196(i) of title 10, United States Code) [now 10 U.S.C. 4173(i)]."

§4174. Contracts: acquisition, construction, or furnishing of test facilities and equipment

(a) A contract of a military department for research or development, or both, may provide for the acquisition or construction by, or furnishing to, the contractor, of research, developmental, or test facilities and equipment that the Secretary of the military department concerned determines to be necessary for the performance of the contract. The acquisition or construction of these research, developmental, or test facilities shall be subject to the cost principles applicable to allowable contract expenses. The facilities and equipment, and specialized housing for them, may be acquired or constructed at the expense of the United States, and may be lent or leased to the contractor with or without reimbursement, or may be sold to him at fair value. This subsection does not authorize new construction or improvements having general utility. The Secretary of Defense and the Secretaries of the military departments shall promulgate regulations necessary to give full force and effect to this section.

(b) Facilities that would not be readily removable or separable without unreasonable expense or unreasonable loss of value may not be installed or constructed under this section on property not owned by the United States, unless the contract contains—

(1) a provision for reimbursing the United States for the fair value of the facilities at the completion or termination of the contract or within a reasonable time thereafter;

(2) an option in the United States to acquire the underlying land; or

(3) an alternative provision that the Secretary concerned considers to be adequate to protect the interests of the United States in the facilities.

(c) Proceeds of sales or reimbursements under this section shall be paid into the Treasury as miscellaneous receipts, except to the extent otherwise authorized by law with respect to property acquired by the contractor.

(Aug. 10, 1956, ch. 1041, 70A Stat. 134, §2353; Pub. L. 115–232, div. B, title XXVIII, §2801, Aug. 13, 2018, 132 Stat. 2260; renumbered §4174 and amended Pub. L. 116–283, div. A, title XVIII, §§1844(b)(1), 1845(b), Jan. 1, 2021, 134 Stat. 4245, 4247; Pub. L. 117–81, div. A, title XVII, §1701(u)(5)(B), (6)(B), Dec. 27, 2021, 135 Stat. 2154.)

Historical and Revision Notes
Revised section	Source (U.S. Code)	Source (Statutes at Large)
2353(a)	5:235e (1st sentence; and 2d sentence, less 2d and last provisos). 5:475j (1st sentence; and 2d sentence, less 2d and last provisos).	July 16, 1952, ch. 882, §4 (less 3d and last sentences), 66 Stat. 725.
	5:628e (1st sentence; and 2d sentence, less 2d and last provisos).
2353(b)	5:235e (2d proviso of 2d sentence).
	5:475j (2d proviso of 2d sentence).
	5:628e (2d proviso of 2d sentence).
2353(c)	5:235e (last proviso of 2d sentence).
	5:475j (last proviso of 2d sentence).
	5:628e (last proviso of 2d sentence).

In subsection (a), the words "furnished to" and "for the use thereof" are omitted as surplusage.

In subsections (a) and (b), the words "United States" are substituted for the word "Government".

In subsection (b), the introductory clause is substituted for 5:235e (words of 2d proviso before clause (1)), 475j, and 628e. The words "that * * * considers" are substituted for the words "as will in the opinion". The words "an alternative" are substituted for the words "such other".

In subsection (c), the words "Proceeds of" are substituted for the words "That all moneys arising from".

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1845(b), as amended by Pub. L. 117–81, §1701(u)(6)(B), renumbered section 2353 of this title as this section.

Pub. L. 116–283, §1844(b)(1), which directed the renumbering of section 2353 of this title as section 4141 instead of this section, was repealed by Pub. L. 117–81, §1701(u)(5)(B).

2018—Subsec. (a). Pub. L. 115–232 inserted after first sentence "The acquisition or construction of these research, developmental, or test facilities shall be subject to the cost principles applicable to allowable contract expenses." and at end "The Secretary of Defense and the Secretaries of the military departments shall promulgate regulations necessary to give full force and effect to this section."

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Limitations on Modifications of Certain Government-Furnished Equipment; One-Time Authority To Transfer a Certain Military Prototype

Pub. L. 111–84, div. A, title X, §1043, Oct. 28, 2009, 123 Stat. 2456, as amended by Pub. L. 111–383, div. A, title X, §1075(d)(12), Jan. 7, 2011, 124 Stat. 4373, provided that:

"(a) Limitation.—An article of military equipment that is an end item of a major weapon system may not be furnished or transferred to a private entity for the conduct of research, development, test and evaluation under contractual agreement with the Department of Defense, if such research, development, test, and evaluation necessitates significantly modifying the military equipment, until the senior acquisition official of a military department, or his designee, submits to the congressional defense committees certification in writing—

"(1) that the modification of such article of military equipment is necessary to execute the contractual scope of work and there is no suitable alternative to modifying such article;

"(2) that the research, development, test, and evaluation effort is of sufficient interest to the military department to warrant the modification of such article of military equipment;

"(3) that—

"(A) prior to the end of the period of performance of such a contractual agreement, the article of military equipment will be restored to its original condition; or

"(B) it is not necessary to restore the article of military equipment to its original condition because the military department intends to dispose of the equipment or operate the equipment in its modified form.

"(4) that the private entity has sufficient resources and capability to fully perform the contractual research, development, test, and evaluation; and

"(5) that the military department has—

"(A) identified the scope of future test and evaluation likely to be required prior to transition of the associated technology to a program of record; and

"(B) a plan for the conduct of such future test and evaluation, including the anticipated roles and responsibilities of government and the private entity, as applicable.

"(b) Certification.—No military equipment that is an end item of a major weapons system may be transferred or furnished to a private entity for purposes of research and development as authorized under subsection (a) unless the senior officer of the military service concerned certifies to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] that such equipment is not essential to the defense of the United States.

"(c) One-time Authority to Transfer.—The Secretary of the Navy may transfer, to Piasecki Aircraft Corporation of Essington, Pennsylvania (in this section referred to as 'transferee'), all right, title, and interest of the United States, except as otherwise provided in this subsection, in and to Navy aircraft N40VT (Bureau Number 163283), also known as the X–49A aircraft, and associated components and test equipment, previously specified as Government-furnished equipment in contract N00019–00–C–0284. The transferee shall provide consideration for the transfer of such military equipment to the transferor of an amount not to exceed fair value, as determined, on a non-delegable basis, by the Secretary.

"(d) Applicable Law.—The transfer or use of military equipment is subject to all applicable Federal and State laws and regulations, including, but not limited to, the Arms Export Control Act [22 U.S.C. 2751 et seq.], the Export Administration Act of 1979 [50 U.S.C. 4601 et seq.], continued under Executive Order 12924 [listed in a table under 50 U.S.C. 1701], International Traffic in Arms Regulations (22 C.F.R. 120 et seq.), Export Administration Regulations (15 C.F.R. 730 et seq.), Foreign Assets Control Regulations (31 C.F.R. 500 et seq.), and the Espionage Act [act June 15, 1917, ch. 30, 40 Stat. 217, see Tables for classification].

"(e) Condition of Equipment to Be Transferred.—

"(1) As-is condition.—The military equipment transferred under subsection (c) shall be transferred in its current 'as-is' condition. The Secretary is not required to repair or alter the condition of any military equipment before transferring any interest in such equipment under subsection (c).

"(2) Spare parts or equipment.—The Secretary of the Navy is not required to provide spare parts or equipment as a result of the transfer authorized under subsection (c).

"(f) Transfer at No Cost to the United States.—The transfer of military equipment under subsection (c) shall be made at no cost to the United States. Any costs associated with the transfer shall be borne by the transferee.

"(g) Additional Terms and Conditions.—The Secretary shall require that the transfer authorized by section (c) be carried out by means of a written agreement and shall require, at a minimum, the following conditions to the transfer:

"(1) A condition stipulating that the transfer of the X-49A aircraft is for the sole purpose of further development, test, and evaluation of vectored thrust ducted propeller (hereinafter in this section referred to as 'VTDP') technology.

"(2) A condition providing the Government the right to procure the VTDP technology demonstrated under this program at a discounted cost based on the value of the X-49A aircraft and associated equipment at the time of transfer, with such valuation and terms determined by the Secretary.

"(3) A condition that the transferee not transfer any interest in, or transfer possession of, the military equipment transferred under subsection (b) to any other party without the prior written approval of the Secretary.

"(4) A condition that if the Secretary determines at any time that the transferee has failed to comply with a condition set forth in paragraphs (1) through (3), all items referred to in subsection (b) shall be transferred back to the Navy, at no cost to the United States.

"(5) A condition that the transferee acknowledges sole responsibility of the X-49A aircraft and associated equipment and assumes all liability for operation of the X-49A aircraft and associated equipment.

"(h) No Liability for the United States.—Upon the transfer of military equipment under subsection (b), the United States shall not be liable for any death, injury, loss, or damage that results from the use of such military equipment by any person other than the United States.

"(i) Additional Terms and Conditions.—The Secretary may require such additional terms and conditions in connection with a transfer under subsection (b) as the Secretary considers appropriate to protect the interests of the United States.

"(j) Definitions.—In this subsection:

"(1) The term 'major system' has the meaning provided in section 2302 of title 10, United States Code [see 10 U.S.C. 3041(a), (b)].

"(2) The term 'contractual agreement' includes contracts, grants, cooperative agreements, and other transactions."

§4175. Use of test and evaluation installations by commercial entities

(a) Contract Authority.—The Secretary of Defense may enter into contracts with commercial entities that desire to conduct commercial test and evaluation activities at a Major Range and Test Facility Installation.

(b) Termination or Limitation of Contract Under Certain Circumstances.—A contract entered into under subsection (a) shall contain a provision that the Secretary of Defense may terminate, prohibit, or suspend immediately any commercial test or evaluation activity to be conducted at the Major Range and Test Facility Installation under the contract if the Secretary of Defense certifies in writing that the test or evaluation activity is or would be detrimental—

(1) to the public health and safety;

(2) to property (either public or private); or

(3) to any national security interest or foreign policy interest of the United States.

(c) Contract Price.—A contract entered into under subsection (a) shall include a provision that requires a commercial entity using a Major Range and Test Facility Installation under the contract to reimburse the Department of Defense for all direct costs to the United States that are associated with the test and evaluation activities conducted by the commercial entity under the contract. In addition, the contract may include a provision that requires the commercial entity to reimburse the Department of Defense for such indirect costs related to the use of the installation as the Secretary of Defense considers to be appropriate. The Secretary may delegate to the commander of the Major Range and Test Facility Installation the authority to determine the appropriateness of the amount of indirect costs included in such a contract provision.

(d) Retention of Funds Collected From Commercial Users.—Amounts collected under subsection (c) from a commercial entity conducting test and evaluation activities at a Major Range and Test Facility Installation shall be credited to the appropriation accounts under which the costs associated with the test and evaluation activities of the commercial entity were incurred.

(e) Regulations and Limitations.—The Secretary of Defense shall prescribe regulations to carry out this section.

(f) Definitions.—In this section:

(1) The term "Major Range and Test Facility Installation" means a test and evaluation installation under the jurisdiction of the Department of Defense and designated as a Major Range and Test Facility Installation by the Secretary.

(2) The term "direct costs" includes the cost of—

(A) labor, material, facilities, utilities, equipment, supplies, and any other resources damaged or consumed during test or evaluation activities or maintained for a particular commercial entity; and

(B) construction specifically performed for a commercial entity to conduct test and evaluation activities.

(Added Pub. L. 103–160, div. A, title VIII, §846(a), Nov. 30, 1993, 107 Stat. 1722, §2681; amended Pub. L. 105–85, div. A, title VIII, §842, Nov. 18, 1997, 111 Stat. 1844; Pub. L. 105–261, div. A, title VIII, §820, Oct. 17, 1998, 112 Stat. 2090; renumbered §4175 and amended Pub. L. 116–283, div. A, title XVIII, §§1844(b)(1), 1845(b), Jan. 1, 2021, 134 Stat. 4245, 4247; Pub. L. 117–81, div. A, title XVII, §1701(u)(5)(B), (6)(B), Dec. 27, 2021, 135 Stat. 2154.)

Editorial Notes

Amendments

2021—Pub. L. 116–283, §1845(b), as amended by Pub. L. 117–81, §1701(u)(6)(B), renumbered section 2681 of this title as this section.

Pub. L. 116–283, §1844(b)(1), which directed the renumbering of section 2681 of this title as section 4144 of this title instead of this section, was repealed by Pub. L. 117–81, §1701(u)(5)(B).

1998—Subsec. (g). Pub. L. 105–261, §820(a), struck out heading and text of subsec. (g). Text read as follows: "The authority provided to the Secretary of Defense by subsection (a) shall terminate on September 30, 2002."

Subsec. (h). Pub. L. 105–261, §820(b), struck out heading and text of subsec. (h). Text read as follows: "Not later than March 1, 1998, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives a report identifying existing and proposed procedures to ensure that the use of Major Range and Test Facility Installations by commercial entities does not compete with private sector test and evaluation services."

1997—Subsec. (g). Pub. L. 105–85, §842(a), substituted "2002" for "1998".

Subsec. (h). Pub. L. 105–85, §842(b), amended subsec. (h) generally. Prior to amendment, subsec. (h) read as follows:

"(h) Report.—Not later than January 1, 1998, the Secretary of Defense shall submit to Congress a report describing the number and purposes of contracts entered into under subsection (a) and evaluating the extent to which the authority under this section is exercised to open Major Range and Test Facility Installations to commercial test and evaluation activities."