10 U.S.C. § 4175 — Use of test and evaluation installations by

Page 2692 TITLE 10—ARMED FORCES § 4175 out in a note preceding section 3001 of this title and note below. 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. LIMITATIONS ON MODIFICATIONS OF CERTAIN GOVERN- MENT-FURNISHED EQUIPMENT; ONE-TIME AUTHORITY TO TRANSFER A CERTAIN MILITARY PROTOTYPE Pub. L. 111–84, div. A, title X, § 1043, Oct. 28, 2009, 123 Stat. 2456, as amended by Pub. L. 111–383, div. A, title X, § 1075(d)(12), Jan. 7, 2011, 124 Stat. 4373, provided that: ‘‘(a) LIMITATION.—An article of military equipment that is an end item of a major weapon system may not be furnished or transferred to a private entity for the conduct of research, development, test and evaluation under contractual agreement with the Department of Defense, if such research, development, test, and eval- uation necessitates significantly modifying the mili- tary equipment, until the senior acquisition official of a military department, or his designee, submits to the congressional defense committees certification in writ- ing— ‘‘(1) that the modification of such article of mili- tary equipment is necessary to execute the contrac- tual scope of work and there is no suitable alter- native to modifying such article; ‘‘(2) that the research, development, test, and eval- uation effort is of sufficient interest to the military department to warrant the modification of such arti- cle of military equipment; ‘‘(3) that— ‘‘(A) prior to the end of the period of performance of such a contractual agreement, the article of military equipment will be restored to its original condition; or ‘‘(B) it is not necessary to restore the article of military equipment to its original condition be- cause the military department intends to dispose of the equipment or operate the equipment in its modified form. ‘‘(4) that the private entity has sufficient resources and capability to fully perform the contractual re- search, development, test, and evaluation; and ‘‘(5) that the military department has— ‘‘(A) identified the scope of future test and eval- uation likely to be required prior to transition of the associated technology to a program of record; and ‘‘(B) a plan for the conduct of such future test and evaluation, including the anticipated roles and re- sponsibilities of government and the private entity, as applicable. ‘‘(b) CERTIFICATION.—No military equipment that is an end item of a major weapons system may be trans- ferred or furnished to a private entity for purposes of research and development as authorized under sub- section (a) unless the senior officer of the military service concerned certifies to the congressional defense committees [Committees on Armed Services and Ap- propriations of the Senate and the House of Represent- atives] that such equipment is not essential to the de- fense of the United States. ‘‘(c) ONE-TIME AUTHORITY TO TRANSFER.—The Sec- retary of the Navy may transfer, to Piasecki Aircraft Corporation of Essington, Pennsylvania (in this section referred to as ‘transferee’), all right, title, and interest of the United States, except as otherwise provided in this subsection, in and to Navy aircraft N40VT (Bureau Number 163283), also known as the X–49A aircraft, and associated components and test equipment, previously specified as Government-furnished equipment in con- tract N00019–00–C–0284. The transferee shall provide consideration for the transfer of such military equip- ment to the transferor of an amount not to exceed fair value, as determined, on a non-delegable basis, by the Secretary. ‘‘(d) APPLICABLE LAW.—The transfer or use of mili- tary equipment is subject to all applicable Federal and State laws and regulations, including, but not limited to, the Arms Export Control Act [22 U.S.C. 2751 et seq.], the Export Administration Act of 1979 [50 U.S.C. 4601 et seq.], continued under Executive Order 12924 [listed in a table under 50 U.S.C. 1701], International Traffic in Arms Regulations (22 C.F.R. 120 et seq.), Export Admin- istration Regulations (15 C.F.R. 730 et seq.), Foreign Assets Control Regulations (31 C.F.R. 500 et seq.), and the Espionage Act [act June 15, 1917, ch. 30, 40 Stat. 217, see Tables for classification]. ‘‘(e) CONDITION OF EQUIPMENT TO BE TRANSFERRED.— ‘‘(1) AS-IS CONDITION.—The military equipment transferred under subsection (c) shall be transferred in its current ‘as-is’ condition. The Secretary is not required to repair or alter the condition of any mili- tary equipment before transferring any interest in such equipment under subsection (c). ‘‘(2) SPARE PARTS OR EQUIPMENT.—The Secretary of the Navy is not required to provide spare parts or equipment as a result of the transfer authorized under subsection (c). ‘‘(f) TRANSFER AT NO COST TO THE UNITED STATES.— The transfer of military equipment under subsection (c) shall be made at no cost to the United States. Any costs associated with the transfer shall be borne by the transferee. ‘‘(g) ADDITIONAL TERMS AND CONDITIONS.—The Sec- retary shall require that the transfer authorized by sec- tion (c) be carried out by means of a written agreement and shall require, at a minimum, the following condi- tions to the transfer: ‘‘(1) A condition stipulating that the transfer of the X-49A aircraft is for the sole purpose of further devel- opment, test, and evaluation of vectored thrust ducted propeller (hereinafter in this section referred to as ‘VTDP’) technology. ‘‘(2) A condition providing the Government the right to procure the VTDP technology demonstrated under this program at a discounted cost based on the value of the X-49A aircraft and associated equipment at the time of transfer, with such valuation and terms determined by the Secretary. ‘‘(3) A condition that the transferee not transfer any interest in, or transfer possession of, the military equipment transferred under subsection (b) to any other party without the prior written approval of the Secretary. ‘‘(4) A condition that if the Secretary determines at any time that the transferee has failed to comply with a condition set forth in paragraphs (1) through (3), all items referred to in subsection (b) shall be transferred back to the Navy, at no cost to the United States. ‘‘(5) A condition that the transferee acknowledges sole responsibility of the X-49A aircraft and associ- ated equipment and assumes all liability for oper- ation of the X-49A aircraft and associated equipment. ‘‘(h) NO LIABILITY FOR THE UNITED STATES.—Upon the transfer of military equipment under subsection (b), the United States shall not be liable for any death, in- jury, loss, or damage that results from the use of such military equipment by any person other than the United States. ‘‘(i) ADDITIONAL TERMS AND CONDITIONS.—The Sec- retary may require such additional terms and condi- tions in connection with a transfer under subsection (b) as the Secretary considers appropriate to protect the interests of the United States. ‘‘(j) DEFINITIONS.—In this subsection: ‘‘(1) The term ‘major system’ has the meaning pro- vided in section 2302 of title 10, United States Code [see 10 U.S.C. 3041(a), (b)]. ‘‘(2) The term ‘contractual agreement’ includes contracts, grants, cooperative agreements, and other transactions.’’ § 4175. Use of test and evaluation installations by commercial entities (a) CONTRACT AUTHORITY.—The Secretary of Defense may enter into contracts with commer- Page 2693 TITLE 10—ARMED FORCES § 4175 cial entities that desire to conduct commercial test and evaluation activities at a Major Range and Test Facility Installation. (b) TERMINATION OR LIMITATION OF CONTRACT UNDER CERTAIN CIRCUMSTANCES.—A contract en- tered into under subsection (a) shall contain a provision that the Secretary of Defense may ter- minate, prohibit, or suspend immediately any commercial test or evaluation activity to be conducted at the Major Range and Test Facility Installation under the contract if the Secretary of Defense certifies in writing that the test or evaluation activity is or would be detrimental— (1) to the public health and safety; (2) to property (either public or private); or (3) to any national security interest or for- eign policy interest of the United States. (c) CONTRACT PRICE.—A contract entered into under subsection (a) shall include a provision that requires a commercial entity using a Major Range and Test Facility Installation under the contract to reimburse the Department of De- fense for all direct costs to the United States that are associated with the test and evaluation activities conducted by the commercial entity under the contract. In addition, the contract may include a provision that requires the com- mercial entity to reimburse the Department of Defense for such indirect costs related to the use of the installation as the Secretary of Defense considers to be appropriate. The Secretary may delegate to the commander of the Major Range and Test Facility Installation the authority to determine the appropriateness of the amount of indirect costs included in such a contract provi- sion. (d) RETENTION OF FUNDS COLLECTED FROM COM- MERCIAL USERS.—Amounts collected under sub- section (c) from a commercial entity conducting test and evaluation activities at a Major Range and Test Facility Installation shall be credited to the appropriation accounts under which the costs associated with the test and evaluation ac- tivities of the commercial entity were incurred. (e) REGULATIONS AND LIMITATIONS.—The Sec- retary of Defense shall prescribe regulations to carry out this section. (f) DEFINITIONS.—In this section: (1) The term ‘‘Major Range and Test Facility Installation’’ means a test and evaluation in- stallation under the jurisdiction of the De- partment of Defense and designated as a Major Range and Test Facility Installation by the Secretary. (2) The term ‘‘direct costs’’ includes the cost of— (A) labor, material, facilities, utilities, equipment, supplies, and any other resources damaged or consumed during test or evalua- tion activities or maintained for a particular commercial entity; and (B) construction specifically performed for a commercial entity to conduct test and evaluation activities. (Added Pub. L. 103–160, div. A, title VIII, § 846(a), Nov. 30, 1993, 107 Stat. 1722, § 2681; amended Pub. L. 105–85, div. A, title VIII, § 842, Nov. 18, 1997, 111 Stat. 1844; Pub. L. 105–261, div. A, title VIII, § 820, Oct. 17, 1998, 112 Stat. 2090; renumbered § 4175 and amended Pub. L. 116–283, div. A, title XVIII, §§ 1844(b)(1), 1845(b), Jan. 1, 2021, 134 Stat. 4245, 4247; Pub. L. 117–81, div. A, title XVII, § 1701(u)(5)(B), (6)(B), Dec. 27, 2021, 135 Stat. 2154.) Editorial Notes AMENDMENTS 2021—Pub. L. 116–283, § 1845(b), as amended by Pub. L. 117–81, § 1701(u)(6)(B), renumbered section 2681 of this title as this section. Pub. L. 116–283, § 1844(b)(1), which directed the renum- bering of section 2681 of this title as section 4144 of this title instead of this section, was repealed by Pub. L. 117–81, § 1701(u)(5)(B). 1998—Subsec. (g). Pub. L. 105–261, § 820(a), struck out heading and text of subsec. (g). Text read as follows: ‘‘The authority provided to the Secretary of Defense by subsection (a) shall terminate on September 30, 2002.’’ Subsec. (h). Pub. L. 105–261, § 820(b), struck out head- ing and text of subsec. (h). Text read as follows: ‘‘Not later than March 1, 1998, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives a report identifying existing and proposed procedures to ensure that the use of Major Range and Test Facility Installations by com- mercial entities does not compete with private sector test and evaluation services.’’ 1997—Subsec. (g). Pub. L. 105–85, § 842(a), substituted ‘‘2002’’ for ‘‘1998’’. Subsec. (h). Pub. L. 105–85, § 842(b), amended subsec. (h) generally. Prior to amendment, subsec. (h) read as follows: ‘‘(h) REPORT.—Not later than January 1, 1998, the Secretary of Defense shall submit to Congress a report describing the number and purposes of contracts en- tered into under subsection (a) and evaluating the ex- tent to which the authority under this section is exer- cised to open Major Range and Test Facility Installa- tions to commercial test and evaluation activities.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 applicable as if in- cluded 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. 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. Subpart F—Major Systems, Major De- fense Acquisition Programs, and Weapon Systems Development Editorial Notes PRIOR PROVISIONS A prior subpart F ‘‘Special Categories of Contracting: Research, Development, Test, and Evaluation’’, con- sisting of chapters 321 to 329, was repealed by Pub. L. 116–283, div. A, title XVIII, § 1841(a)(1)(A), Jan. 1, 2021, 134 Stat. 4242. CHAPTER 321—GENERAL MATTERS Sec. 4201. Major defense acquisition programs: defini- tion; exceptions. 4202. Authority to increase definitional threshold amounts: major defense acquisition pro- grams; major systems. 4203. Major subprograms.