10 U.S.C. § 4323 — Sustainment reviews

Page 2734 TITLE 10—ARMED FORCES § 4323 (i) transfer mature technologies from the new system or other systems to enhance the mission capability of the existing sys- tem against relevant threats; and (ii) provide interoperability with the new system during the period from initial field- ing until the new system assumes the ma- jority of responsibility for the mission of the existing system. (c) EXCEPTIONS.—Subsection (a) shall not apply to a major defense acquisition program if the Secretary of Defense determines that— (1) the existing system is no longer relevant to the mission; (2) the mission has been eliminated; (3) the mission has been consolidated with another mission in such a manner that an- other existing system can adequately meet the mission requirements; or (4) the duration of time until the new system assumes the majority of responsibility for the existing system’s mission is sufficiently short so that mission availability, capability, inter- operability, and force protection requirements are maintained. (d) WAIVER.—The Secretary of Defense may waive the applicability of subsection (a) to a major defense acquisition program if the Sec- retary determines that, but for such a waiver, the Department would be unable to meet na- tional security objectives. Whenever the Sec- retary makes such a determination and author- izes such a waiver, the Secretary shall submit notice of such waiver and of the Secretary’s de- termination and the reasons therefor in writing to the congressional defense committees. (Added Pub. L. 108–375, div. A, title VIII, § 805(a)(1), Oct. 28, 2004, 118 Stat. 2008, § 2437; re- numbered § 4321, Pub. L. 116–283, div. A, title XVIII, § 1848(b), Jan. 1, 2021, 134 Stat. 4258.) Editorial Notes PRIOR PROVISIONS A prior section 4321 was renumbered section 7421 of this title. AMENDMENTS 2021—Pub. L. 116–283 renumbered section 2437 of this title as this section. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT 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. EFFECTIVE DATE Pub. L. 108–375, div. A, title VIII, § 805(b), Oct. 28, 2004, 118 Stat. 2009, provided that: ‘‘Section 2437 of title 10, United States Code [now 10 U.S.C. 4321], as added by subsection (a), shall apply with respect to a major de- fense acquisition program for a system that is under development as of the date of the enactment of this Act [Oct. 28, 2004] and is not expected to reach initial oper- ational capability before October 1, 2008. The Secretary of Defense shall require that a sustainment plan under that section be developed not later than one year after the date of the enactment of this Act for the existing system that the system under development is intended to replace.’’ § 4323. Sustainment reviews (a) IN GENERAL.—The Secretary of each mili- tary department shall conduct a sustainment re- view of each covered system not later than five years after declaration of initial operational ca- pability of a major defense acquisition program, and every five years thereafter throughout the life cycle of the covered system, to assess the product support strategy, performance, and op- eration and support costs of the covered system. The results of the sustainment review shall be documented in a memorandum by the relevant decision authority. The Secretary concerned shall make the memorandum and supporting documentation for each sustainment review available to the Under Secretary of Defense for Acquisition and Sustainment within 30 days after the review is completed. (b) ELEMENTS.—At a minimum, the review re- quired under subsection (a) shall assess execu- tion of the life cycle sustainment plan of the covered system and include the following ele- ments: (1) An independent cost estimate for the re- mainder of the life cycle of the program. (2) A comparison of actual costs to the amount of funds budgeted and appropriated in the previous five years, and if funding short- falls exist, an explanation of the implications on equipment availability. (3) A comparison between the assumed and achieved system reliabilities. (4) An analysis of the most cost-effective source of repairs and maintenance. (5) An evaluation of the cost of consumables and depot-level repairables. (6) An evaluation of the costs of information technology, networks, computer hardware, and software maintenance and upgrades. (7) As applicable, an assessment of the ac- tual fuel efficiencies compared to the pro- jected fuel efficiencies as demonstrated in tests or operations. (8) As applicable, a comparison of actual manpower requirements to previous estimates. (9) An analysis of whether accurate and com- plete data are being reported in the cost sys- tems of the military department concerned, and if deficiencies exist, a plan to update the data and ensure accurate and complete data are submitted in the future. (10) As applicable, information regarding any decision to restructure the life cycle sustainment plan for a covered system or any other action that will lead to critical oper- ating and support cost growth. (c) COORDINATION.—The review required under subsection (a) shall be conducted in coordina- tion with the requirements of sections 4324 and 4325 of this title. (d) SUBMISSION TO CONGRESS.—(1) Not later than September 30 of each fiscal year, the Sec- retary of each military department shall annu- ally submit to the congressional defense com- mittees the sustainment reviews required by this section for such fiscal year. (2) Each submission under paragraph (1) shall be submitted in unclassified form, but may in- clude a classified annex. Page 2735 TITLE 10—ARMED FORCES § 4324 (3) For a covered system with critical oper- ating and support cost growth, such submission shall include a remediation plan to reduce oper- ating and support costs or a certification by the Secretary concerned that such critical operating and support cost growth is necessary to meet national security requirements. (e) DEFINITIONS.—In this section: (1) COVERED SYSTEM.—The term ‘‘covered system’’ shall have the meaning given in sec- tion 4324 of this title. (2) CRITICAL OPERATING AND SUPPORT COST GROWTH.—The term ‘‘critical operating and support cost growth’’ means operating and support cost growth— (A) of at least 25 percent more than the es- timate documented in the most recent inde- pendent cost estimate for the covered sys- tem; or (B) of at least 50 percent more than the es- timate documented in the original Baseline Estimate (as defined in section 4214(d) of this title) for the covered system. (Added Pub. L. 114–328, div. A, title VIII, § 849(c)(1), Dec. 23, 2016, 130 Stat. 2293, § 2441; amended Pub. L. 115–91, div. A, title VIII, §§ 816, 836(b)(2), Dec. 12, 2017, 131 Stat. 1462, 1473; renum- bered § 4323 and amended Pub. L. 116–283, div. A, title VIII, § 802(c), title XVIII, §§ 1848(c), 1883(b)(2), Jan. 1, 2021, 134 Stat. 3732, 4258, 4294.) Editorial Notes AMENDMENTS 2021—Pub. L. 116–283, § 1848(c), renumbered section 2441 of this title as this section. Subsec. (a). Pub. L. 116–283, § 802(c)(1), in first sen- tence, substituted ‘‘covered system’’ for ‘‘major weapon system’’, ‘‘, and every five years thereafter throughout the life cycle of the covered system,’’ for ‘‘and through- out the life cycle of the weapon system’’, and ‘‘costs of the covered system’’ for ‘‘costs of the weapon system’’ and struck out second sentence which read as follows: ‘‘For any review after the first one, the Secretary con- cerned shall use availability and reliability thresholds and cost estimates as the basis for the circumstances that prompt such a review.’’ Subsec. (b). Pub. L. 116–283, § 802(c)(2)(A), inserted ‘‘as- sess execution of the life cycle sustainment plan of the covered system and’’ before ‘‘include the following ele- ments:’’ in introductory provisions. Subsec. (b)(10). Pub. L. 116–283, § 802(c)(2)(B), added par. (10). Subsec. (c). Pub. L. 116–283, § 1848(c), substituted ‘‘sec- tions 4324 and 4325’’ for ‘‘sections 2337 and 2337a’’. Subsec. (d). Pub. L. 116–283, § 802(c)(3), added subsec. (d). Subsec. (e). Pub. L. 116–283, § 802(c)(3), added subsec. (e). Subsec. (e)(1). Pub. L. 116–283, § 1883(b)(2), substituted ‘‘section 4324’’ for ‘‘section 2337’’. Subsec. (e)(2)(B). Pub. L. 116–283, § 1883(b)(2), sub- stituted ‘‘section 4214(d)’’ for ‘‘section 2435(d)’’. 2017—Subsec. (a). Pub. L. 115–91, § 816, inserted at end ‘‘The Secretary concerned shall make the memo- randum and supporting documentation for each sustainment review available to the Under Secretary of Defense for Acquisition and Sustainment within 30 days after the review is completed.’’ Subsec. (c). Pub. L. 115–91, § 836(b)(2), substituted ‘‘sections 2337 and 2337a of this title’’ for ‘‘section 2337 of this title and section 832 of the National Defense Au- thorization Act for Fiscal Year 2012 (Public Law 112–81; 10 U.S.C. 2430 note)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by sections 1848(c) and 1883(b)(2) of Pub. L. 116–283 effective Jan. 1, 2022, with additional provi- sions 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. § 4324. Life-cycle management and product sup- port (a) GUIDANCE ON LIFE-CYCLE MANAGEMENT.— The Secretary of Defense shall issue and main- tain comprehensive guidance on life-cycle man- agement and the development and implementa- tion of product support strategies for covered systems. The guidance issued pursuant to this subsection shall— (1) maximize competition and make the best possible use of available Department of De- fense and industry resources at the system, subsystem, and component levels; and (2) maximize value to the Department of De- fense by providing the best possible product support outcomes at the lowest operations and support cost. (b) LIFE CYCLE SUSTAINMENT PLAN.— (1) IN GENERAL.—Before granting Milestone B approval (or the equivalent), the milestone decision authority shall ensure that each cov- ered system has an approved life cycle sustainment plan for which the milestone de- cision authority has received views from ap- propriate materiel, logistics, or fleet rep- resentatives. The life cycle sustainment plan shall include— (A) a comprehensive product support strat- egy; (B) performance goals, including key per- formance parameters for sustainment, key system attributes of the covered system, and other appropriate metrics; (C) an approved life-cycle cost estimate for the covered system; (D) affordability constraints and key cost factors that could affect the operating and support costs of the covered system; (E) sustainment risks and proposed miti- gation plans for such risks; (F) engineering and design considerations that support cost-effective sustainment of the covered system; (G) an intellectual property management plan for product support, including require- ments for technical data, software, and mod- ular open system approaches (as defined in section 4401 of this title); (H) an estimate of the number of personnel needed to operate and maintain the covered system, including military personnel, Fed- eral employees, contractors, and host nation support personnel (as applicable); (I) a description of opportunities for for- eign military sales; and (J) major maintenance and overhaul re- quirements that will be required during the life cycle of the covered system. (2) SUBSEQUENT PHASES.—Before granting Milestone C approval (or the equivalent) for the covered system, the milestone decision au-