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

Editorial Notes

Codification

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

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

Amendments

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

Subsec. (e)(1)(A)(ii), (2)(B). Puspan. L. 116–283, § 1883(span)(2), substituted “section 3041” for “section 2302(5)”.

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

Subsec. (e)(1). Puspan. 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). Puspan. 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). Puspan. 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). Puspan. L. 107–314, § 818(span), added pars. (8) and (9).

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

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

1996—Subsec. (d). Puspan. 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). Puspan. L. 104–106, § 1502(a)(18)(B), added par. (7).

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

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

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

1993—Subsec. (d). Puspan. 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). Puspan. L. 101–510 made technical correction to directory language of Puspan. L. 101–189, § 804(a), see 1989 Amendment note below.

1989—Puspan. 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). Puspan. L. 101–189, §§ 802(c)(1)(A), 804(a), as amended by Puspan. 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). Puspan. L. 101–189, §§ 802(c)(1)(B), 804(a), as amended by Puspan. 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). Puspan. 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. (span)(2), (3). Puspan. 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). Puspan. L. 101–189, § 804(span), 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). Puspan. 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). Puspan. L. 100–456 made technical correction to directory language of Puspan. L. 100–180, § 802(a)(1)(C). See 1987 Amendment note below.

1987—Subsec. (a). Puspan. L. 100–180, § 802(a)(1), as amended by Puspan. 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. (span)(1). Puspan. 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. (span)(2). Puspan. L. 100–180, § 802(span), 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). Puspan. 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.”

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

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

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

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

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

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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

Amendment by 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 of 1988 Amendment

Puspan. 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

Puspan. L. 99–500, § 101(c) [title X, § 910(span)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–145, Puspan. L. 99–591, § 101(c) [title X, § 910(span)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–145, and Puspan. L. 99–661, div. A, title IX, formerly title IV, § 910(span), Nov. 14, 1986, 100 Stat. 3924, renumbered title IX, Puspan. 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

Puspan. 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.

“(span)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

Puspan. 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.

“(span)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

Puspan. 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.

“(span)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;

“(bspan) 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.”