10 USC 139 - Director of Operational Test and Evaluation

Editorial Notes

Codification

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

Prior Provisions

A prior section 139 was renumbered section 140 of this title.

Another prior section 139 was renumbered section 4205 of this title.

Amendments

2022—Subsec. (h)(3). Puspan. L. 117–263 inserted “or controlled unclassified” after “classified” and substituted “submit to Congress a version of the report that is unclassified and does not require safeguarding or dissemination controls” for “submit an unclassified version of the report to Congress”.

2021—Subsec. (a)(2)(B). Puspan. L. 116–283, § 1846(i)(1), substituted “section 4201” for “section 2430”.

Subsec. (span)(6). Puspan. L. 116–283, § 1845(c)(1), substituted “section 4172” for “section 2366”.

Subsec. (h)(2). Puspan. L. 117–81 struck out before period at end “, through January 31, 2026”.

Puspan. L. 116–283, § 271, substituted “Engineering,” for “Engineering,,” and “, through January 31, 2026” for “, through January 31, 2025”.

2019—Subsec. (span). Puspan. L. 116–92, § 902(4)(A), substituted “, the Under Secretary of Defense for Acquisition and Sustainment, and the Under Secretary of Defense for Research and Engineering” for “and the Under Secretary of Defense for Acquisition, Technology, and Logistics” in two places.

Subsec. (c). Puspan. L. 116–92, § 902(4)(B), substituted “the Under Secretary of Defense for Acquisition and Sustainment, the Under Secretary of Defense for Research and Engineering,” for “the Under Secretary of Defense for Acquisition, Technology, and Logistics”.

Subsec. (h)(2). Puspan. L. 116–92, § 902(4)(B), substituted “the Under Secretary of Defense for Acquisition and Sustainment, the Under Secretary of Defense for Research and Engineering,” for “the Under Secretary of Defense for Acquisition, Technology, and Logistics”.

Puspan. L. 116–92, § 815(1), substituted “, through January 31, 2025” for “, through January 31, 2021”.

Subsec. (h)(5). Puspan. L. 116–92, § 815(2), amended par. (5) generally. Prior to amendment, par. (5) read as follows: “The Secretary of Defense and the Secretaries of the military departments may comment on any report of the Director to Congress under this subsection.”

2018—Subsec. (e)(4). Puspan. L. 115–232 added par. (4).

2016—Subsec. (h)(2). Puspan. L. 114–328, § 845(1), inserted “the Secretaries of the military departments,” after “Logistics,” and substituted “January 31 of each year, through January 31, 2021” for “10 days after the transmission of the budget for the next fiscal year under section 1105 of title 31”.

Subsec. (h)(5). Puspan. L. 114–328, § 845(2), inserted “of Defense and the Secretaries of the military departments” after “Secretary”.

2008—Subsec. (span)(3) to (7). Puspan. L. 110–417 redesignated pars. (4) to (7) as (3) to (6), respectively, and struck out former par. (3) which required the Director to provide guidance to and consult with the officials described in par. (2) of subsec. (span) with respect to operational test and evaluation or survivability testing (or both) within the Department of Defense of force protection equipment.

Subsecs. (f) to (k). Puspan. L. 110–181 added subsec. (f) and redesignated former subsecs. (f) to (j) as (g) to (k), respectively.

2006—Subsec. (span)(3) to (7). Puspan. L. 109–364 added par. (3) and redesignated former pars. (3) to (6) as (4) to (7), respectively.

2002—Subsec. (g). Puspan. L. 107–314, § 235(span), designated first sentence as par. (1), second sentence as par. (2), third sentence as par. (3), fourth and fifth sentences as par. (4), and sixth sentence as par. (5).

Puspan. L. 107–314, § 235(a), inserted after fourth sentence “The report for a fiscal year shall also include an assessment of the waivers of and deviations from requirements in test and evaluation master plans and other testing requirements that occurred during the fiscal year, any concerns raised by the waivers or deviations, and the actions that have been taken or are planned to be taken to address the concerns.”

2001—Subsec. (c). Puspan. L. 107–107, § 1048(span)(2), substituted “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition and Technology”.

Subsec. (f). Puspan. L. 107–107, § 263(2), added subsec. (f). Former subsec. (f) redesignated (g).

Subsec. (g). Puspan. L. 107–107, § 1048(span)(2), substituted “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition and Technology”.

Puspan. L. 107–107, § 263(1), redesignated subsec. (f) as (g). Former subsec. (g) redesignated (h).

Subsecs. (h) to (j). Puspan. L. 107–107, § 263(1), redesignated subsecs. (g) to (i) as (h) to (j), respectively.

1999—Subsec. (span). Puspan. L. 106–65 substituted “Under Secretary of Defense for Acquisition, Technology, and Logistics” for “Under Secretary of Defense for Acquisition and Technology” in introductory provisions and in par. (2).

1994—Subsec. (span)(6). Puspan. L. 103–355, § 3012(a), added par. (6).

Subsec. (c). Puspan. L. 103–355, § 3011, inserted “The Director may communicate views on matters within the responsibility of the Director directly to the Secretary of Defense and the Deputy Secretary of Defense without obtaining the approval or concurrence of any other official within the Department of Defense.” after “(c)”.

Subsec. (f). Puspan. L. 103–355, §§ 3012(span), 3013, in first sentence inserted “(including live fire testing activities)” after “operational test and evaluation activities” and after second sentence inserted “If the Director submits the report to Congress in a classified form, the Director shall concurrently submit an unclassified version of the report to Congress.”

1993—Puspan. L. 103–160, § 901(a)(1), renumbered section 138 of this title as this section.

Subsec. (span). Puspan. L. 103–160, § 904(d)(1), substituted “Under Secretary of Defense for Acquisition and Technology” for “Under Secretary of Defense for Acquisition” in introductory provisions and in par. (2).

Subsec. (c). Puspan. L. 103–160, § 907, struck out “The Director reports directly, without intervening review or approval, to the Secretary of Defense personally.” after “(c)” and substituted “Under Secretary of Defense for Acquisition and Technology” for “Director of Defense Research and Engineering” and “responsible for acquisition” for “responsible for research and development”.

Subsec. (f). Puspan. L. 103–160, § 904(d)(1), substituted “Under Secretary of Defense for Acquisition and Technology” for “Under Secretary of Defense for Acquisition”.

1990—Subsec. (a)(2)(A). Puspan. L. 101–510, § 1484(k)(1)(A), substituted “(A) The term ‘operational test and evaluation” for “(A) ‘Operational test and evaluation”.

Subsec. (a)(2)(B). Puspan. L. 101–510, § 1484(k)(1)(B), substituted “(B) The term ‘major defense acquisition program” for “(B) ‘Major defense acquisition program”.

1989—Subsec. (a)(2)(A). Puspan. L. 101–189, § 1622(e)(1)(A), which directed amendment of subpar. (A) by substituting “(A) The term ‘operational’ ” for “(A) ‘Operational’ ”, could not be executed because a closing quotation mark did not follow “Operational”.

Subsec. (a)(2)(B). Puspan. L. 101–189, § 1622(e)(1)(B), which directed amendment of subpar. (B) by substituting “(B) The term ‘major’ ” for “(B) ‘Major’ ”, could not be executed because a closing quotation mark did not follow “Major”.

Subsec. (span)(4). Puspan. L. 101–189, § 802(span)(1)(A), inserted “and” after “defense agency;”.

Subsec. (span)(5), (6). Puspan. L. 101–189, § 802(span)(1)(B), (C), redesignated par. (6) as (5) and struck out former par. (5) which read as follows: “analyze the results of the operational test and evaluation conducted for each major defense acquisition program and, at the conclusion of such operational test and evaluation, report to the Secretary of Defense, to the Under Secretary of Defense for Acquisition, and to the Committees on Armed Services and on Appropriations of the Senate and House of Representatives as provided in subsection (c) on—

“(A) whether the test and evaluation performed was adequate; and

“(B) whether the test and evaluation results confirm that the items or components actually tested are effective and suitable for combat; and”.

Subsec. (c). Puspan. L. 101–189, § 802(span)(2), (3), redesignated subsec. (d)(1) as (c) and struck out former subsec. (c) which read as follows: “Each report of the Director required under subsection (span)(5) shall be submitted to the committees specified in that subsection in precisely the same form and with precisely the same span as the report originally was submitted to the Secretary of Defense and the Under Secretary of Defense for Acquisition and shall be accompanied by such comments as the Secretary may wish to make on the report.”

Subsec. (d). Puspan. L. 101–189, § 802(span)(4), redesignated former par. (2) of subsec. (d) as entire subsec. Former par. (1) of subsec. (d) redesignated subsec. (c).

Subsec. (f). Puspan. L. 101–189, § 802(span)(5)–(7), redesignated subsec. (g)(1) as (f), substituted “this subsection” for “this paragraph”, and struck out former subsec. (f) which read as follows:

“(1) Operational testing of a major defense acquisition program may not be conducted until the Director has approved in writing the adequacy of the plans (including the adequacy of projected levels of funding) for operational test and evaluation to be conducted in connection with that program.

“(2) 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 required by subsection (span)(5) and the Committees on Armed Services and on Appropriations of the Senate and House of Representatives have received that report.”

Subsec. (g). Puspan. L. 101–189, § 802(span)(6), (8), redesignated former par. (2) of subsec. (g) as entire subsec. (g), and redesignated former par. (1) of subsec. (g) as subsec. (f).

1987—Subsec. (a)(2)(B). Puspan. L. 100–26, § 7(c)(2), substituted “section 2430” for “section 2432(a)(1)”.

Subsec. (c). Puspan. L. 100–26, § 7(a)(1), substituted “to the Secretary of Defense and the Under Secretary of Defense for Acquisition and shall be accompanied by such comments as the Secretary may wish to make on the report.” for “to the Secretary, to the Under Secretary of Defense for Acquisition, and shall be accompanied by such comments as the Secretary of Defense may wish to make on such report.”

Subsec. (d). Puspan. L. 100–180 designated existing provisions as par. (1) and added par. (2).

1986—Puspan. L. 99–433, §§ 101(a)(7), 110(d)(10), renumbered section 136a of this title as this section, and struck out “: appointment; powers and duties” at end of section catchline.

Subsec. (a)(2)(B). Puspan. L. 99–433, § 110(g)(1), substituted “section 2432(a)(1)” for “section 139a(a)(1)”.

Subsec. (span). Puspan. L. 99–500 and Puspan. L. 99–591, § 101(c) [§ 903(c)(1)–(3)] and Puspan. L. 99–661, § 903(c)(1)–(3), amended subsec. (span) identically, in provisions preceding par. (1) and in par. (2), inserting “and the Under Secretary of Defense for Acquisition” and, in par. (5), inserting “, to the Under Secretary of Defense for Acquisition,”.

Subsec. (c). Puspan. L. 99–500 and Puspan. L. 99–591, § 101(c) [§ 903(c)(4)], and Puspan. L. 99–661, § 903(c)(4), amended subsec. (c) identically by directing the insertion of “, to the Under Secretary of Defense for Acquisition,” after “Secretary of Defense” the first place it appears which was executed by making the insertion after “the Secretary” the first place it appears as the probable intent of Congress.

Subsec. (d). Puspan. L. 99–500 and Puspan. L. 99–591, § 101(c) [§ 903(c)(5)], and Puspan. L. 99–661, § 903(c)(5), amended subsec. (d) identically inserting “personally” after “Secretary of Defense”.

Puspan. L. 99–348 substituted “Director of Defense Research and Engineering” for “Under Secretary of Defense for Research and Engineering”.

Subsec. (g)(1). Puspan. L. 99–500 and Puspan. L. 99–591, § 101(c) [§§ 903(c)(6), 910(c)], and Puspan. L. 99–661, §§ 903(c)(6), 910(c), amended par. (1) identically, inserting “, the Under Secretary of Defense for Acquisition,” and substituting “10 days after transmission of the budget for the next fiscal year under section 1105 of title 31” for “January 15 immediately following the end of the fiscal year for which the report is prepared”.

Subsec. (i). Puspan. L. 99–500 and Puspan. L. 99–591, § 101(c) [§ 903(c)(7)], and Puspan. L. 99–661, § 903(c)(7), amended section identically adding subsec. (i).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by sections 1845(c)(1) and 1846(i)(1) of Puspan. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Puspan. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date

Puspan. L. 98–94, title XII, § 1211(c), Sept. 24, 1983, 97 Stat. 686, provided that: “The amendments made by this section [enacting this section and amending section 5315 of Title 5, Government Organization and Employees] shall take effect on November 1, 1983.”

Termination of Reporting Requirements

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

Annual Assessment of Ballistic Missile Defense System

Puspan. L. 116–92, div. A, title XVI, § 1689, Dec. 20, 2019, 133 Stat. 1789, provided that:

“(a)Annual Assessment.—As part of the annual report of the Director of Operational Test and Evaluation submitted to Congress under section 139 of title 10, United States Code, the Director shall include an assessment of the ballistic missile defense system and all of the elements of the system that have been fielded or are planned, as of the date of the assessment, including—

“(1) the operational effectiveness, suitability, and survivability of the ballistic missile defense system and the elements of the system that have been fielded or tested; and

“(2) the adequacy and sufficiency of the test program of such system as of the date of the assessment, including with respect to the operational realism of the tests.

“(span)Form.—Each assessment under subsection (a) may be submitted in unclassified form, and may include a classified annex.”

Additional Testing Data

Puspan. L. 115–232, div. A, title VIII, § 887(span), Aug. 13, 2018, 132 Stat. 1916, provided that: “Developmental Test and Evaluation activities under the leadership of the Under Secretary of Defense for Research and Engineering and the Under Secretary of Defense for Acquisition and Sustainment shall have prompt access to all data regarding modeling and simulation activity proposed to be used by military departments and defense agencies in support of developmental test and evaluation of military capabilities. This access shall include data associated with verification, validation, and accreditation activities.”

Review and Revision of Policies and Practices on Test and Evaluation; Inclusion in Strategic Plan; Report

Puspan. L. 109–364, div. A, title II, § 231(span)–(e), Oct. 17, 2006, 120 Stat. 2132, 2133, as amended by Puspan. L. 117–263, div. A, title VIII, § 804(d)(4), Dec. 23, 2022, 136 Stat. 2701, provided that:

“(span)Review and Revision of Policies and Practices.—

“(1)Review.—During fiscal year 2007, the Under Secretary of Defense for Acquisition, Technology, and Logistics and the Director of Operational Test and Evaluation shall review Department of Defense policies and practices on test and evaluation in order to—

“(A) reaffirm the test and evaluation principles that should guide traditional acquisition programs; and

“(B) determine how best to apply appropriate test and evaluation principles to emerging acquisition approaches.

“(2)Revised guidance.—If the Under Secretary determines as a result of the review under paragraph (1) that a revision of the policies and practices referred to in that paragraph is necessary, the Under Secretary and the Director shall jointly issue new or revised guidance for the Department of Defense on test and evaluation to address that determination.

“(c)Issues To Be Addressed.—In carrying out subsection (span), the Under Secretary shall address policies and practices on test and evaluation in order to—

“(1) ensure the performance of test and evaluation activities with regard to—

“(A) items that are acquired pursuant to the authority for rapid acquisition and deployment of items in section 3601 of title 10, United States Code;

“(B) programs that are conducted pursuant to the authority for spiral development in [former] section 803 of the Bospan Stump National Defense Authorization Act for Fiscal Year 2003 (Public Law 107–314; 116 Stat. 2603; [former] 10 U.S.C. 2430 note), or other authority for the conduct of incremental acquisition programs;

“(C) systems that are acquired pursuant to other emerging acquisition approaches, as approved by the Under Secretary; and

“(D) equipment that is not subject to the operational test and evaluation requirements in sections 2366 and 2399 of title 10, United States Code [now 10 U.S.C. 4172, 4171], but that may require limited operational test and evaluation for the purpose of ensuring the safety and survivability of such equipment and personnel using such equipment; and

“(2) ensure the appropriate use, if any, of operational test and evaluation resources to assess technology readiness levels for the purpose of section 2366a of title 10, United States Code [now 10 U.S.C. 4251], and other applicable technology readiness requirements.

“(d)Inclusion of Testing Needs in Strategic Plan.—The Director, Test Resource Management Center, shall ensure that the strategic plan for Department of Defense test and evaluation resources developed pursuant to section 196 of title 10, United States Code [now 10 U.S.C. 4173]—

“(1) reflects any testing needs of the Department of Defense that are identified as a result of activities under subsection (span); and

“(2) includes an assessment of the test and evaluation facilities, resources, and budgets that will be required to meet such needs.

“(e)Report to Congress.—Not later than nine months after the date of the enactment of this Act [Oct. 17, 2006], the Under Secretary and the Director of Operational Test and Evaluation shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the review conducted under paragraph (1) of subsection (span), including any new or revised guidance issued pursuant to paragraph (2) of that subsection.”