10 U.S.C. § 4171 — Operational test and evaluation of defense

Page 2680 TITLE 10—ARMED FORCES [§§ 4145 to 4147 25, 2015], the heads of each basic research entity shall each submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] the strategy developed by the head under subsection (a)(1). ‘‘(2) OFFICE OF THE SECRETARY.—Not later than one year after the date of the enactment of this Act, the Secretary of Defense shall submit to the congres- sional defense committees the strategy developed under subsection (b). ‘‘(d) COVERED INSTITUTION DEFINED.—In this section: ‘‘(1) The term ‘basic research entity’ means an enti- ty of the Department of Defense that executes re- search, development, test, and evaluation budget ac- tivity 1 funding, as described in the Department of Defense Financial Management Regulation. ‘‘(2) The term ‘covered educational institution’ has the meaning given that term in section 2362(e) of title 10, United States Code [now 10 U.S.C. 4144(f)].’’ [§§ 4145 to 4147. Omitted] Editorial Notes CODIFICATION Sections 4145 to 4147 were initially transferred from sections 2350l, 2368, and 2367 of this title, respectively, by Pub. L. 116–283, div. A, title XVIII, § 1844(b), Jan. 1, 2021, 134 Stat. 4246, to become effective Jan. 1, 2022. Sub- sequently, Pub. L. 117–81, div. A, title XVII, § 1701(u)(5)(B), Dec. 27, 2021, 135 Stat. 2154, struck out and added a new section 1844(b) of Pub. L. 116–283, effec- tive as if included therein. The new section 1844(b) did not direct any transfers to sections 4145 to 4147, thereby omitting these sections before they took effect. After other amendments by Pub. L. 117–81, section 2350l was not transferred, and sections 2368 and 2367 were trans- ferred to sections 4124 and 4126 of this title, respec- tively. CHAPTER 307—TEST AND EVALUATION Sec. 4171. Operational test and evaluation of defense ac- quisition programs. 4172. Major systems and munitions programs: sur- vivability testing and lethality testing re- quired before full-scale production. 4173. Department of Defense Test Resource Man- agement Center. 4174. Contracts: acquisition, construction, or fur- nishing 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, effec- tive as if included therein, so that instead of enacting chapter 307, it enacted chapter 305 of this title con- sisting 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 TECH- NOLOGIES TO DETERMINE THE AUTHENTICITY AND SE- CURITY OF MICROELECTRONIC PARTS IN WEAPON SYS- TEMS 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 Undersecre- tary of Defense for Research and Engineering, in co- ordination 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 microelec- tronic parts in weapon systems. ‘‘(b) OBJECTIVES OF PILOT PROGRAM.—The Undersecre- tary of Defense for Research and Engineering, in co- ordination 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-vi- sion 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, regu- lations, or processes to mitigate counterfeit micro- electronics 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 De- fense Microelectronics Activity, may consult with the following entities: ‘‘(1) Manufacturers of semiconductors or elec- tronics. ‘‘(2) Industry associations relating to semiconduc- tors 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 pro- gram 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 De- cember 31, 2020.’’ [Pub. L. 116–283, § 1866(d)(1)(A), which directed amend- ment 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 inter- vening amendment by section 1806(e)(3)(C) of Pub. L. 116–283, which had substituted ‘‘section 3014’’ for ‘‘sec- tion 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 de- fense 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 oper- Page 2681 TITLE 10—ARMED FORCES § 4171 ational test and evaluation of the program, sub- program, or element is completed. (2) In this subsection: (A) The term ‘‘covered major defense acqui- sition program’’ means a major defense acqui- sition program that involves the acquisition of a weapon system that is a major system. (B) The term ‘‘covered designated major sub- program’’ means a major subprogram des- ignated 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 acquisi- tion 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 pro- jected 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 per- formed were adequate; and (ii) whether the results of such test and evaluation confirm that the items or compo- nents actually tested are effective and suit- able for combat; and (B) additional information on the oper- ational capabilities of the items or compo- nents 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 De- fense for Research and Engineering, and the con- gressional defense committees. Each such report shall be submitted to those committees in pre- cisely the same form and with precisely the same content as the report originally was sub- mitted 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 acquisi- tion program beyond low-rate initial production may not be made until the Director has sub- mitted 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 para- graph (4) is made for a major defense acquisition program, a decision is made within the Depart- ment 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 con- gressional 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 quan- tity of articles of a new system that are to be procured for operational testing shall be deter- mined 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 de- fense acquisition program (as defined in sec- tion 139(a)(2)(B) of this title); or (2) the operational test and evaluation agen- cy 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 PER- SONNEL.—In the case of a major defense acquisi- tion program (as defined in subsection (a)(2)), no person employed by the contractor for the sys- tem being tested may be involved in the conduct of the operational test and evaluation required under subsection (a). The limitation in the pre- ceding 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 de- ployed in combat. (e) IMPARTIAL CONTRACTED ADVISORY AND AS- SISTANCE SERVICES.—(1) The Director may not contract with any person for advisory and as- sistance services with regard to the test and evaluation of a system if that person partici- pated in (or is participating in) the develop- ment, production, or testing of such system for a military department or Defense Agency (or for another contractor of the Department of De- fense). (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 Inspec- tor General of the Department of Defense shall review each such waiver and shall include in the Inspector General’s semi-annual report an as- sessment 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 Page 2682 TITLE 10—ARMED FORCES § 4171 Director shall include in such annual report a description of each waiver granted under sub- section (e)(2) since the last such report. (h) OPERATIONAL TEST AND EVALUATION DE- FINED.—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 pur- poses of subsection (a), that term does not in- clude an operational assessment based exclu- sively on— (1) computer modeling; (2) simulation; or (3) an analysis of system requirements, engi- neering 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 Engi- neering,’’ for ‘‘Under Secretary of Defense for Acquisi- tion, 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, subpro- gram, 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 be- yond low-rate initial production until initial oper- ational test and evaluation of the program is com- pleted. ‘‘(2) In this subsection, the term ‘major defense acqui- sition 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), amend- ed 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 ‘‘Oper- ational 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, Tech- nology, 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 Representa- tives.’’ 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), sub- stituted ‘‘139’’ for ‘‘138’’. Subsec. (h)(1). Pub. L. 103–337, § 1070(a)(11)(C), sub- stituted ‘‘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 Tech- nology’’ for ‘‘Under Secretary of Defense for Acquisi- tion’’. 1992—Subsec. (e)(3). Pub. L. 102–484 designated exist- ing 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 sec- tion 1701(a)(3) of Pub. L. 117–81, set out in a note pre- ceding 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. Page 2683 TITLE 10—ARMED FORCES § 4172 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 an- nual 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 COMPO- NENTS.—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 Ap- propriations of the Senate and the House of Rep- resentatives] and the Secretary of Defense a report describing of the performance of the items or compo- nents evaluated as part of the operational test and evaluation for each major defense acquisition pro- gram conducted under such section by the Director of Operational Test and Evaluation in relation to com- parable 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 sub- mission 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 con- gressional defense committees a report addressing any concerns related to information included in the annual report, or providing updated or additional in- formation, 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 Depart- ment of Defense with responsibility for develop- mental 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 ac- tual developmental, live fire, and operational testing costs for major defense acquisition programs. ‘‘(2) CONCURRENCE AND COORDINATION REQUIRED.—Be- fore implementing the policies, procedures, guidance, and method developed under paragraph (1), the Direc- tor of Operational Test and Evaluation, the senior of- ficial of the Department of Defense with responsi- bility 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 mili- tary 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 As- sessment and Program Evaluation or another ap- propriate official of the Department of Defense, and shall be made available for analysis by testing, ac- quisition, and other appropriate officials of the De- partment of Defense, as determined by the Director of Operational Test and Evaluation, the senior offi- cial of the Department of Defense with responsi- bility for developmental testing, or the Director of the Test Resource Management Center. ‘‘(B) DIAGGREGATION [sic] BY COSTS.—To the max- imum 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 DE- FINED.—In this section, the term ‘major defense acqui- sition 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 re- quired before full-scale production (a) REQUIREMENTS.—(1) The Secretary of De- fense shall provide that— (A) a covered system may not proceed be- yond low-rate initial production until realistic survivability testing of the system is com- pleted 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 ini- tial 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 test- ing is completed in accordance with this sec- tion; and (B) in the case of a product improvement to a major munitions program or a missile pro- gram, 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 de- velopment phase of the system or program (in- cluding a covered product improvement pro- gram) to allow any design deficiency dem- onstrated by the testing to be corrected in the design of the system, munition, or missile (or in the product modification or upgrade to the sys- tem, munition, or missile) before proceeding be- yond 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 surviv- ability and lethality tests of this section to a covered system, munitions program, missile pro- gram, or covered product improvement program if the Secretary determines that live-fire testing of such system or program would be unreason- ably expensive and impractical and submits a certification of that determination to Con- gress—