
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document affected by Public Law 107-107 Section 821(a)]
[CITE: 10USC2366]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                PART IV--SERVICE, SUPPLY, AND PROCUREMENT
 
                  CHAPTER 139--RESEARCH AND DEVELOPMENT
 
Sec. 2366. 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, before the system or program 
enters engineering and manufacturing development, certifies to Congress 
that live-fire testing of such system or program would be unreasonably 
expensive and impractical.
    (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 
engineering and manufacturing development, 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.--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.
    (e) Definitions.--In this section:
        (1) 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.

        (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 2302(5) 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 ``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.

(Added Pub. L. 99-500, Sec. 101(c) [title X, Sec. 910(a)(1)], Oct. 18, 
1986, 100 Stat. 1783-82, 1783-143, and Pub. L. 99-591, Sec. 101(c) 
[title X, Sec. 910(a)(1)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-143; 
Pub. L. 99-661, div. A, title IX, formerly title IV, Sec. 910(a)(1), 
Nov. 14, 1986, 100 Stat. 3923, renumbered title IX, Pub. L. 100-26, 
Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100-180, div. 
A, title VIII, Sec. 802, title XII, Sec. 1231(11), Dec. 4, 1987, 101 
Stat. 1123, 1160; Pub. L. 100-456, div. A, title XII, Sec. 1233(l)(3), 
Sept. 29, 1988, 102 Stat. 2058; Pub. L. 101-189, div. A, title VIII, 
Secs. 802(c)(1)-(4)(A), 804, Nov. 29, 1989, 103 Stat. 1486, 1488; Pub. 
L. 101-510, div. A, title XIV, Sec. 1484(h)(7), Nov. 5, 1990, 104 Stat. 
1718; Pub. L. 103-160, div. A, title VIII, Sec. 828(d)(2), Nov. 30, 
1993, 107 Stat. 1715; Pub. L. 103-355, title III, Sec. 3014, Oct. 13, 
1994, 108 Stat. 3332; Pub. L. 104-106, div. A, title XV, 
Sec. 1502(a)(18), Feb. 10, 1996, 110 Stat. 504; Pub. L. 106-65, div. A, 
title X, Sec. 1067(1), Oct. 5, 1999, 113 Stat. 774.)

                          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

    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, Sec. 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, Sec. 1502(a)(18)(B), added par. 
(7).
    1994--Subsec. (c)(1). Pub. L. 103-355, Sec. 3014(a)(2), (b), 
substituted ``engineering and manufacturing development'' for ``full-
scale entgineering development'' in first sentence and redesignated 
second sentence as par. (3).
    Subsec. (c)(2). Pub. L. 103-355, Sec. 3014(a)(1), (3), added par. 
(2) and redesignated former par. (2) as (4).
    Subsec. (c)(3). Pub. L. 103-355, Sec. 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, Sec. 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, Sec. 804(a), see 
1989 Amendment note below.
    1989--Pub. L. 101-189, Sec. 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, Secs. 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, Secs. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 802(a)(1)(C). See 1987 
Amendment note below.
    1987--Subsec. (a). Pub. L. 100-180, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 802(d)(3), added subsec. (d). 
Former subsec. (d) redesignated subsec. (c)(2).
    Subsec. (e)(1)(B). Pub. L. 100-180, Sec. 1231(11), substituted 
``section 2302(5)'' for ``section 2303(5)''.
    Subsec. (e)(4). Pub. L. 100-180, Sec. 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, Sec. 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, Sec. 802(a)(4)(C), added par. (8).


                    Effective Date of 1988 Amendment

    Section 1233(l)(5) of Pub. L. 100-456 provided that: ``The 
amendments made by this subsection [amending this section and sections 
2435 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

    Section 101(c) [title X, Sec. 910(b)] of Pub. L. 99-500 and Pub. L. 
99-591, and section 910(b) of title IX, formerly title IV, of Pub. L. 
99-661, renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 
101 Stat. 273, provided that: ``Section 2366 of title 10, United States 
Code (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.''

                  Section Referred to in Other Sections

    This section is referred to in section 139 of this title.
