§223. Ballistic missile defense programs: program elements

(a) Program Elements Specified by President.-In the budget justification materials submitted to Congress in support of the Department of Defense budget for any fiscal year (as submitted with the budget of the President under section 1105(a) of title 31), the amount requested for activities of the Missile Defense Agency shall be set forth in accordance with such program elements as the President may specify.

(b) Separate Program Elements for Programs Entering Engineering and Manufacturing Development.-(1) The Secretary of Defense shall ensure that each ballistic missile defense program that enters engineering and manufacturing development is assigned a separate, dedicated program element.

(2) In this subsection, the term "engineering and manufacturing development" means the period in the course of an acquisition program during which the primary objectives are to-

(A) translate the most promising design approach into a stable, interoperable, producible, supportable, and cost-effective design;

(B) validate the manufacturing or production process; and

(C) demonstrate system capabilities through testing.

(c) Management and Support.-The amount requested for a fiscal year for any program element specified for that fiscal year pursuant to subsection (a) shall include requests for the amounts necessary for the management and support of the programs, projects, and activities contained in that program element.

(Added Pub. L. 105–261, div. A, title II, §235(a)(1), Oct. 17, 1998, 112 Stat. 1953 ; amended Pub. L. 107–107, div. A, title II, §232(a), (b), Dec. 28, 2001, 115 Stat. 1037 ; Pub. L. 107–314, div. A, title II, §225(b)(1)(A), Dec. 2, 2002, 116 Stat. 2486 ; Pub. L. 108–136, div. A, title II, §221(a), (b)(1), (c)(1), Nov. 24, 2003, 117 Stat. 1419 .)

Prior Provisions

Provisions similar to those in this section were contained in Pub. L. 104–106, div. A, title II, §251, Feb. 10, 1996, 110 Stat. 233 , which was set out as a note under section 221 of this title, prior to repeal by Pub. L. 105–261, §235(b).

Amendments

2003-Subsec. (a). Pub. L. 108–136, §221(a), inserted "by President" after "Specified" in heading, substituted "such program elements as the President may specify." for "program elements governing functional areas as follows:" in introductory provisions, and struck out pars. (1) to (6), which read as follows:

"(1) Technology.

"(2) Ballistic Missile Defense System.

"(3) Terminal Defense Segment.

"(4) Midcourse Defense Segment.

"(5) Boost Defense Segment.

"(6) Sensors Segment."

Subsec. (b)(2). Pub. L. 108–136, §221(c)(1), substituted "means the period in the course of an acquisition program during which the" for "means the development phase whose".

Subsec. (c). Pub. L. 108–136, §221(b)(1), substituted "for a fiscal year for any program element specified for that fiscal year pursuant to subsection (a)" for "for each program element specified in subsection (a)".

2002-Subsec. (a). Pub. L. 107–314 substituted "Missile Defense Agency" for "Ballistic Missile Defense Organization".

2001-Subsec. (a). Pub. L. 107–107, §232(a), substituted "in accordance with program elements governing functional areas as follows:" for "in accordance with the following program elements:" in introductory provisions, added pars. (1) to (6), and struck out former pars. (1) to (12) which read as follows:

"(1) The Patriot system.

"(2) The Navy Area system.

"(3) The Theater High-Altitude Area Defense system.

"(4) The Navy Theater Wide system.

"(5) The Medium Extended Air Defense System.

"(6) Joint Theater Missile Defense.

"(7) National Missile Defense.

"(8) Support Technologies.

"(9) Family of Systems Engineering and Integration.

"(10) Ballistic Missile Defense Technical Operations.

"(11) Threat and Countermeasures.

"(12) International Cooperative Programs."

Subsec. (b). Pub. L. 107–107, §232(b), amended heading and text of subsec. (b) generally. Prior to amendment, text read as follows: "Amounts requested for Theater Missile Defense and National Missile Defense major defense acquisition programs shall be specified in individual, dedicated program elements, and amounts appropriated for those programs shall be available only for Ballistic Missile Defense activities."

Acquisition Accountability Reports on the Ballistic Missile Defense System

Pub. L. 111–383, div. A, title II, §225, Jan. 7, 2011, 124 Stat. 4170 , provided that:

"(a) Baselines Required.-The Secretary of Defense shall ensure that the Missile Defense Agency establishes and maintains an acquisition baseline for each program element of the ballistic missile defense system, as specified in section 223 of title 10, United States Code.

"(b) Elements of Baselines.-Each acquisition baseline required by subsection (a) for a program element shall include the following:

"(1) A comprehensive schedule for the program element, including-

"(A) research and development milestones;

"(B) acquisition milestones, including design reviews and key decision points;

"(C) key test events, including ground and flight tests and ballistic missile defense system tests; and

"(D) delivery and fielding schedules.

"(2) A detailed technical description of-

"(A) the capability to be developed, including hardware and software;

"(B) system requirements;

"(C) how the proposed capability satisfies a capability identified by the commanders of the combatant commands on a prioritized capabilities list;

"(D) key knowledge points that must be achieved to permit continuation of the program and to inform production and deployment decisions; and

"(E) how the Missile Defense Agency plans to improve the capability over time.

"(3) A cost estimate for the program element, including-

"(A) a life cycle cost estimate;

"(B) program acquisition unit costs for the program element;

"(C) average procurement unit costs and program acquisition costs for the program element; and

"(D) an identification when the program joint cost analysis requirements description document is scheduled to be approved.

"(4) A test baseline summarizing the comprehensive test program for the program element outlined in the integrated master test plan.

"(c) Annual Reports on Acquisition Baselines.-

"(1) Annual reports required.-Not later than February 15, 2011, and annually thereafter, the Director of the Missile Defense Agency shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the acquisition baselines required by subsection (a). The first such report shall set forth the acquisition baselines, and each later report shall identify the significant changes or variances, if any, in any such baseline from any earlier report under this subsection.

"(2) Form.-Each report under this subsection shall be submitted in unclassified form, but may include a classified annex.

"(d) Annual Reports on Missile Defense Executive Board Activities.-The Director shall include in each report under subsection (c) a description of the activities of the Missile Defense Executive Board during the preceding fiscal year, including the following:

"(1) A list of each meeting of the Board during the preceding fiscal year.

"(2) The agenda and issues considered at each such meeting.

"(3) A description of any decisions or recommendations made by the Board at each such meeting."

Budget and Acquisition Requirements for Missile Defense Agency Activities

Pub. L. 110–181, div. A, title II, §223, Jan. 28, 2008, 122 Stat. 39 , provided that:

"(a) Revised Budget Structure.-The budget justification materials submitted to Congress in support of the Department of Defense budget for any fiscal year after fiscal year 2009 (as submitted with the budget of the President under section 1105(a) of title 31, United States Code) shall set forth separately amounts requested for the Missile Defense Agency for each of the following:

"(1) Research, development, test, and evaluation.

"(2) Procurement.

"(3) Operation and maintenance.

"(4) Military construction.

"(b) Revised Budget Structure for Fiscal Year 2009.-The budget justification materials submitted to Congress in support of the Department of Defense budget for fiscal year 2009 (as submitted with the budget of the President under section 1105(a) of title 31, United States Code) shall-

"(1) identify all known and estimated operation and support costs; and

"(2) set forth separately amounts requested for the Missile Defense Agency for each of the following:

"(A) Research, development, test, and evaluation.

"(B) Procurement or advance procurement of long lead items, including for Terminal High Altitude Area Defense firing units 3 and 4, and for Standard Missile-3 Block 1A interceptors.

"(C) Military construction.

"(c) Availability of RDT&E Funds for Fiscal Year 2009.-Upon approval by the Secretary of Defense, and consistent with the plan submitted under subsection (f), funds appropriated pursuant to an authorization of appropriations or otherwise made available for fiscal year 2009 for research, development, test, and evaluation for the Missile Defense Agency-

"(1) may be used for the fielding of ballistic missile defense capabilities approved previously by Congress; and

"(2) may not be used for-

"(A) military construction activities; or

"(B) procurement or advance procurement of long lead items, including for Terminal High Altitude Area Defense firing units 3 and 4, and for Standard Missile-3 Block 1A interceptors.

"(d) Full Funding Requirement Not Applicable to Use of Procurement Funds for Fiscal Years 2009 and 2010.-In any case in which funds appropriated pursuant to an authorization of appropriations or otherwise made available for procurement for the Missile Defense Agency for fiscal years 2009 and 2010 are used for the fielding of ballistic missile defense capabilities, the funds may be used for the fielding of those capabilities on an 'incremental' basis, notwithstanding any law or policy of the Department of Defense that would otherwise require a 'full funding' basis.

"(e) Relationship to Other Law.-Nothing in this provision shall be construed to alter or otherwise affect in any way the applicability of the requirements and other provisions of section 234(a) through (d) of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Public Law 108–375; 118 Stat. 1837; 10 U.S.C. 2431 note).

"(f) Plan Required.-Not later than March 1, 2008, the Director of the Missile Defense Agency shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a plan for transitioning the Missile Defense Agency from using exclusively research, development, test, and evaluation funds to using procurement, military construction, operations and maintenance, and research, development, test, and evaluation funds for the appropriate budget activities, and for transitioning from incremental funding to full funding for fiscal years after fiscal year 2010.

"(g) Objectives for Acquisition Activities.-

"(1) In general.-Commencing as soon as practicable, but not later than the submittal to Congress of the budget for the President for fiscal year 2009 under section 1105(a) of title 31, United States Code, the Missile Defense Agency shall take appropriate actions to achieve the following objectives in its acquisition activities:

"(A) Improved transparency.

"(B) Improved accountability.

"(C) Enhanced oversight.

"(2) Required actions.-In order to achieve the objectives specified in paragraph (1), the Missile Defense Agency shall, at a minimum, take actions as follows:

"(A) Establish acquisition cost, schedule, and performance baselines for each ballistic missile defense system element that-

"(i) has entered the equivalent of the systems development and demonstration phase of acquisition; or

"(ii) is being produced and acquired for operational fielding.

"(B) Provide unit cost reporting data for each ballistic missile defense system element covered by subparagraph (A), and secure independent estimation and verification of such cost reporting data.

"(C) Include, in the budget justification materials described in subsection (a), a description of actions being taken in the fiscal year in which such materials are submitted, and the actions to be taken in the fiscal year covered by such materials, to achieve such objectives.

"(3) Specification of ballistic missile defense system elements.-The ballistic missile defense system elements that, as of October 2007, are ballistic missile defense system elements covered by paragraph (2)(A) are the following elements:

"(A) Ground-based Midcourse Defense.

"(B) Aegis Ballistic Missile Defense.

"(C) Terminal High Altitude Area Defense.

"(D) Forward-Based X-band radar-Transportable (AN/TPY–2).

"(E) Command, Control, Battle Management, and Communications.

"(F) Sea-Based X-band radar.

"(G) Upgraded Early Warning radars."

References to New Name for Ballistic Missile Defense Organization

Pub. L. 107–314, div. A, title II, §225(a), Dec. 2, 2002, 116 Stat. 2486 , provided that: "Any reference to the Ballistic Missile Defense Organization in any provision of law, regulation, map, document, record, or other paper of the United States shall be considered to be a reference to the Missile Defense Agency."

Cooperative Ballistic Missile Defense Program Element

Pub. L. 105–85, div. A, title II, §233, Nov. 18, 1997, 111 Stat. 1663 , as amended by Pub. L. 107–314, div. A, title II, §225(b)(4)(A), Dec. 2, 2002, 116 Stat. 2486 , provided that:

"(a) Requirement for New Program Element.-The Secretary of Defense shall establish a program element for the Missile Defense Agency, to be referred to as the 'Cooperative Ballistic Missile Defense Program', to support technical and analytical cooperative efforts between the United States and other nations that contribute to United States ballistic missile defense capabilities. Except as provided in subsection (b), all international cooperative ballistic missile defense programs of the Department of Defense shall be budgeted and administered through that program element.

"(b) Authority for Exceptions.-The Secretary of Defense may exclude from the program element established pursuant to subsection (a) any international cooperative ballistic missile defense program of the Department of Defense that after the date of the enactment of this Act [Nov. 18, 1997] is designated by the Secretary of Defense (pursuant to applicable Department of Defense acquisition regulations and policy) to be managed as a separate acquisition program.

"(c) Relationship to Other Program Elements.-The program element established pursuant to subsection (a) is in addition to the program elements for activities of the Missile Defense Agency required under section 251 of the National Defense Authorization Act for Fiscal Year 1996 (Public Law 104–106; 110 Stat. 233; [former] 10 U.S.C. 221 note)."