Congress Passes National Defense Authorization Act for Fiscal Year 2022

The National Defense Authorization Act (NDAA) for Fiscal Year 2022 is headed to President Biden for his signature after the Senate passed it today on a vote of 88 to 11. The House passed the bill on Dec. 7 on a vote of 363 to 70. This is the 61st year in a row that Congress has completed an annual update to defense policy.

The science and technology provisions in this year’s NDAA make relatively modest changes to existing policy compared with other recent iterations of the legislation. The provisions that were included reflect Congress’ ongoing interest in accelerating the adoption of emerging technologies; advancing specific technology categories such as quantum computing, microelectronics, and biotechnology; and streamlining collaboration between the Department of Defense and extramural researchers. This year, Congress has also turned its attention to the mysteries surrounding “unidentified aerial phenomena” and the ailment colloquially known as “Havana Syndrome.”

While the House and Senate Armed Services Committees both completed their drafts of the bill by the beginning of September, only the House passed its version . Floor debate on the Senate’s version hit an impasse this month, but the finalized version does include floor amendments the Senate was likely to have approved. Although lawmakers advanced legislation updating policy for U.S. intelligence agencies in both the House and Senate that was intended for incorporation into the NDAA, it was ultimately not included. However, provisions covering the State Department were.

An explanatory statement accompanying the final bill includes discussion of what proposed provisions lawmakers included, modified, and left out. Throughout this bulletin, numbers in brackets refer to provisions’ section numbers in the bill.

Extramural research

Research security. Congress has used recent iterations of the NDAA to implement measures at DOD and other agencies that aim to prevent the exploitation of federally funded research by rival countries, most notably China. In this year’s NDAA, no provisions are dedicated to research security, although the House’s version of the NDAA proposed to require that federal science agencies bar personnel on projects they fund from participating in “malign foreign talent recruitment programs,” and to mandate research security training for project personnel. Those and other research security proposals could still be included in separate legislation Congress is considering that is aimed at bolstering U.S. innovation and competitiveness with China. That legislation is set to be finalized by a conference committee, but the timeline for that process has not been announced.

Collaborations with China. The NDAA bars any funding that DOD may provide to EcoHealth Alliance, a nonprofit public health research organization, from being used “in China on research supported by the government of China,” unless the defense secretary provides a waiver. [Sec. 735] EcoHealth Alliance has previously used National Institutes of Health funding to collaborate with the Wuhan Institute of Virology and has at least sought funding from the Defense Advanced Research Projects Agency for related work. Last year, a number of Republicans, including President Trump, criticized the collaboration with the Wuhan lab as part of their allegation the COVID-19 pandemic may have originated there, and NIH ultimately revoked a grant to EcoHealth Alliance in deference to the White House. The House originally proposed to prohibit DOD from providing any funding whatsoever to EcoHealth Alliance and, in addition, to bar any DOD funding from being used to conduct research in China or to support research conducted by entities controlled by the Chinese government.

Nuclear policy consortium. The National Nuclear Security Administration is directed to establish a “policy research consortium of institutions of higher education and nonprofit entities” that focuses on issues such as nuclear nonproliferation, nuclear deterrence, arms control, and nuclear security. [Sec. 3113] NNSA already funds a consortium focused on nuclear science, engineering, and security, and the new policy-focused consortium will arrive in the wake of the MacArthur Foundation’s decision last summer to terminate its support for nuclear policy research.

University collaboration program. The NDAA amends the list of subject areas DOD can support through a recently established program aimed at facilitating collaborations with universities to include: nuclear science, security, and nonproliferation; chemical, biological, radiological, and nuclear defense; spectrum activities; research security and integrity; and printed circuit boards. [Sec. 218]

Minority institutions. DOD is directed to develop a plan to “promote defense-related engineering, research, and development activities at minority institutions for the purpose of elevating the capacity of such institutions in those areas.” The department is also authorized to establish a program that competitively awards funds for that same purpose. [Sec. 220] The provision builds on recent efforts by Congress to increase DOD support for Historically Black Colleges and Universities and other minority-serving institutions. The House had originally proposed a stronger provision laying groundwork for the creation of a “Minority Institute for Defense Research” with the status of a University Affiliated Research Center . That same proposal would have required existing DOD UARCs and Federally Funded R&D Centers to allocate at least 5% of the contract funds they receive to subcontracts with minority institutions.

DEPSCoR. The Defense Established Program to Stimulate Competitive Research awards grants to institutions in states and territories that have historically received a small share of DOD research funding. Congress first established the program in 1990, but it was defunded in 2010 until Congress restored appropriations to it in 2019. This year’s NDAA gives the program a more prominent status in statute. [Sec. 214]

Other Transaction Authority. The NDAA provides DOD with new statutory flexibility in determining when it can use “Other Transaction Authority” for research projects. [Sec. 821] OTA is less bureaucratically burdensome than DOD’s ordinary purchasing mechanisms, and the original Senate report explained the provision reflects that DOD has become “much more proactive” in issuing guidance on proper uses of the authority.

Unfunded SBIR/STTR projects. DOD is directed to submit an annual report to Congress detailing up to five high-priority projects in its Small Business Innovation Research and Small Business Technology Transfer programs that it did not have funding to continue. [Sec. 865] The House had proposed creating a six-year pilot program that would require that each military service branch annually select at least five SBIR/STTR projects that would be managed as its own program in a bid to improve the SBIR/STTR programs’ track record in technology maturation.

Policy for emerging technologies

PPBE reform. One of the potentially most consequential provisions in this year’s NDAA establishes a commission to recommend reforms to the Planning, Programming, Budgeting, and Execution framework that has structured DOD program management for 60 years. [Sec. 1004] One frequently cited rationale for PPBE reform is that it unduly constrains DOD’s ability to respond quickly to technological advances and changing technology requirements.

National Defense S&T Strategy. The NDAA broadens the scope of the science and technology strategy that Congress mandated three years ago. DOD is now directed to use the strategy to recommend mechanisms for identifying and closing critical capability gaps, ways to convey defense technology priorities to industry, and ways to educate senior defense leaders and policymakers about the potential impacts of emerging technologies. In addition, the strategy will address how DOD can make “appropriate investments” in research and technology development within the department and develop “appropriate partnerships” outside of it. [Sec. 211]

Joint Requirements Oversight Council. The NDAA enhances the role of the under secretary of defense for research and engineering on DOD’s Joint Requirements Oversight Council, including by designating the position as the council’s “chief technical adviser.” The provision also stipulates that the under secretary should assist in evaluating the feasibility of requirements under development and identify options for new requirements “based on opportunities provided by new or emerging technologies.” The council is responsible for advising the Joint Chiefs of Staff on equipment needs across the military service branches. [Sec. 903]

Executive education. DOD is directed to set up a course for “appropriate general and flag officers and senior executive-level civilian leaders” that covers how emerging technologies may be applied to DOD military and business activities. [Sec. 228]

Steering committee. The DOD steering committee on emerging technology that last year’s NDAA created is now expanded to include the principal deputy director of national intelligence as a co-chair, with the option to also include other senior DOD and intelligence officials. [Sec. 216]

Comparative analyses. DOD is directed to develop procedures for conducting comparative analyses of different countries’ capabilities in specific technology areas. As an initial effort, the department is directed to compare U.S. and Chinese efforts in directed energy systems, hypersonics, emerging biotechnologies, quantum science, and cyberspace capabilities. [Sec. 1251]

Acquisition pilots. The NDAA directs DOD to establish two five-year pilot programs that will aim to facilitate the acquisition of new technologies. One will require DOD to initiate at least four projects to “develop and implement unique acquisition mechanisms” for high-priority technologies, employing alternative practices for activities such as cost estimation, performance assessment, and assigning intellectual property rights. The provision also instructs DOD to consider including four specific technology areas in the pilot: “offensive missile capabilities, space-based assets, personnel and quality-of-life improvement, and energy generation and storage.” The other pilot will hold competitions for funding awards, generally up to $50 million apiece, to support projects aimed at accelerating the transition of technologies from advanced R&D and prototyping efforts into acquisition programs. [Secs. 833 and 834]

Procurement prizes. The NDAA clarifies that an authority allowing DOD to offer prizes for “advanced technology achievements” can be used for awarding procurement agreements. The provision requires DOD to notify Congress before launching any competitions that offer a prize of more than $10 million. The original Senate report on the provision argued that the use of such prizes could be used to “more seamlessly and rapidly move successful technologies into operational use.” [Sec. 822]

Streamlined contracting. A pilot program that allows DOD to waive certain contracting requirements for technology projects is extended by two years. The pilot targets projects that are valued at less than $7.5 million and are conducted by small businesses. [Sec. 862]

Partnership intermediaries. DOD is directed to undertake a five-year pilot program through which it will engage “qualified private-sector organizations” to assist technology producers in identifying potential military users for their products and provide them with technical assistance in participating in DOD acquisition processes. [Sec. 231] A separate provision extends a pilot program that allows U.S. Special Operations Command to use intermediaries to award contracts to small businesses for developing “technology-enhanced capabilities,” and it increases the total amount that may be spent through the program from $2 million to $20 million. [Sec. 852]

Defense Innovation Unit. DIU is a DOD entity tasked with building contracting relationships with innovative technology companies, and it currently has offices in Washington, D.C., Silicon Valley, Austin, and Boston, and will soon open one in Chicago. The NDAA authorizes the unit to expand engagement with “private-sector industry and communities in various regions of the United States” in part to “expand outreach to communities that do not otherwise have a DIU presence, including economically disadvantaged communities.” [Sec. 213]

Technology initiatives

Biotechnology commission. The NDAA establishes a “National Security Commission on Emerging Biotechnology” that will review advances in the field as well as associated threats and policy issues, recommending steps the U.S. can take to improve its position. [Sec. 1091] The commission follows on the heels of the National Security Commission on Artificial Intelligence, which released its final report this year.

Microelectronics R&D. Congress directs DOD to select “two or more entities” to carry out the activities of the “national network for microelectronics R&D” authorized through the CHIPS for America Act . To the “extent practicable,” the entities are to “collectively represent the geographic diversity of the United States.” [Sec. 217] Congress is currently considering providing funding needed to implement CHIPS Act initiatives through special legislation. The NDAA’s explanatory statement expresses concern that DOD has not sufficiently prepared to implement the network or other elements of the CHIPS Act and also suggests there is “confusion” among various federal agencies about their respective roles in implementing the act.

Quantum technology. DOD is directed to “establish a set of activities to accelerate the development and deployment of dual-use quantum capabilities,” and to provide funding through DARPA to “one or more organizations” to advance that goal. [Sec. 229] Senate appropriators have specifically proposed allocating an additional $60 million to DARPA’s budget for quantum computing activities, though the NDAA recommends $100 million. A separate NDAA provision provides statutory backing for the National Science and Technology Council’s Subcommittee on the Economic and Security Implications of Quantum Science, an interagency coordinating body. [Sec. 6606] A third provision adds quantum information science to the list of subject areas that can be supported through a new DOD grant program that aims to improve educational institutions’ ability to provide STEM training to students in the Junior Reserve Officer Training Corps. [Sec. 511]

Update: This item originally quoted language from the original Senate proposal directing DOD to act to “accelerate the development and deployment of a useful, large-scale, dual-use quantum computing capability,” but that language was generalized to “dual-use quantum capabilities” in the enacted version.

Artificial intelligence. DOD is directed to “review the potential applications of artificial intelligence and digital technology to DOD platforms, processes, and operations,” and to develop appropriate performance metrics. [Sec. 226] A separate provision authorizes DOD to carry out a pilot program through which it will build repositories of data sets for training AI models that companies can use in developing software for defense applications. [Sec. 232]

Spectrum superiority. DOD is directed to designate a senior official responsible for implementing the electromagnetic spectrum superiority strategy it released in 2020 — a move the department already made when it assigned the role to the vice chair of the Joint Chiefs of Staff last summer. [Sec. 907] The strategy outlines issues involved in supporting effective use of spectrum in an operational environment that is “increasingly congested, contested, and constrained.”

Directed energy for missile defense. The NDAA directs DOD to delegate authority over directed energy systems for hypersonic and ballistic missile defense to the Missile Defense Agency, and states that work on such systems should prioritize early-stage R&D. [Sec. 1664] In its original draft, the House indicated the provision reflects dismay over DOD removing funds for such technologies from MDA’s fiscal year 2022 budget request. In the Trump administration, DOD’s chief technology official declared a loss of confidence in the feasibility of missile defense systems that employ airborne lasers. Senate appropriators have included some funding for MDA’s directed energy program in their fiscal year 2022 spending bill while House appropriators have not.

Microreactor testing. DOD is authorized to “assemble a collection of four National Guard units to participate in the testing and evaluation of a micro nuclear reactor program.” [Sec. 230] DOD is currently exploring small-scale reactor designs through its Strategic Capabilities Office.

Critical minerals. DOD is directed to initiate a one-year program in partnership with one or more universities to demonstrate techniques for recovering rare earth elements from acid mine drainage and other coal byproducts. The Department of Energy supports such work as well, and the NDAA directs DOD to cooperate with DOE to ensure that DOD priorities are addressed by DOE-supported R&D on the extraction, processing, and recycling of critical minerals in general. [Secs. 320 and 845]

STEM workforce and education

Laboratory personnel authorities. The NDAA formally codifies an authority that allows DOD labs and similar facilities to bypass certain standard hiring procedures for advanced degree holders for up to 5% of their science and engineering positions. It also codifies another authority allowing such facilities to conduct “personnel demonstration projects.” [Secs. 212 and 215]

NNSA pay rates. The NDAA extends for five years an authority allowing NNSA to set special pay rates for up to 200 scientific, engineering, and technical positions with safety-related duties. [Sec. 3117]

Manufacturing education. DOD is directed to submit a report to Congress that suggests modifications to its Manufacturing Engineering Education Program. [Sec. 846] The House had originally proposed that DOD assemble a “coalition” of educational institutions and other organizations to promote pathways for careers in manufacturing.

Goldwater scholarships. The NDAA includes provisions modifying the foundation-operated Barry Goldwater Scholarship program, which in its most recent year awarded scholarships to 408 undergraduate students studying science, engineering, or mathematics. The changes to the program include formally extending scholarship eligibility to engineering students, prioritizing scholarship awards to students at community colleges and minority-serving institutions, and allowing the program to offer research internship stipends as well as academic scholarships. [Secs. 6301 to 6307]

State Department fellowships. The NDAA authorizes the State Department to award grants and cooperative agreements related to science and technology fellowship programs. The provision is intended to facilitate activities such as applicant recruitment and stipend payments and it caps such expenditures at $500,000 in total. [Sec. 5303]

Special immigrant status. The NDAA does not include a House proposal to create a special visa pathway for a limited number of foreign scientists and technical experts whom DOD deems would make important contributions to national defense. The explanatory statement notes that DOD labs have existing authorities to “work with foreign national talent” and it encourages the department to “engage the whole-of-government to develop a mechanism to sponsor visas for highly skilled and vetted immigrants.”

Climate and nuclear waste hazards

Climate resilience. DOD is directed to conduct a “climate resilience mission impact assessment” that addresses risks the department faces related to extreme weather and climate change and outlines associated needs for R&D and equipment. The department is also directed to undertake an initiative to bolster the resilience of its infrastructure against climate hazards and ensure quick recovery from natural disasters. [Secs. 331 to 335]

Wildfire monitoring. The explanatory statement directs DOD to submit a detailed report to Congress on “capabilities to assist fighting wildfires through the use and analysis of satellite and other aerial survey technology.” Some advocates and lawmakers have expressed a strong interest in permanently implementing a currently temporary arrangement that makes military assets available for that purpose.

Environmental cleanup R&D. DOE is directed to establish an “Incremental Technology Development Program,” a “High-Impact Technology Development Program,” and an “Environmental Management University Program” to develop technologies that can facilitate the cleanup of legacy waste from nuclear weapons production. [Sec. 3114]

Enewetak Atoll. DOE is directed to commission a study on environmental hazards resulting from nuclear tests conducted at Enewetak Atoll in the Marshall Islands that will also address the impacts of climate change on the Runit Dome nuclear waste disposal site on the atoll. DOE submitted a report to Congress last year on the current integrity of Runit Dome, but advocates have raised concerns that rising sea levels will increase the danger that waste will escape from the facility. [Sec. 3140]

Radiation exposure compensation. Noting that the Radiation Exposure Compensation Act expires on July 9, 2022, the NDAA endorses the idea that the U.S. should continue compensating individuals who have experienced illnesses linked to radiation from atmospheric nuclear weapons testing or from their employment in the uranium industry. [Sec. 3141] While the provision does not itself extend such compensation, there is a bipartisan proposal pending in Congress to extend the act by 19 years and expand the categories of people who are eligible for compensation.

Plutonium facilities. DOE is directed to deliver progress reports to Congress on the construction of new plutonium processing facilities at Los Alamos National Lab in New Mexico and the Savannah River Site in South Carolina, and to certify that the sites will be able to adequately dispose of waste products. [Sec. 3111] NNSA is building the facilities to manufacture replacement plutonium cores for nuclear warheads, but a coalition of advocacy groups is suing the agency alleging it has not fully assessed the projects’ environmental impacts.

Unexplained phenomena

Unidentified aerial phenomena. Responding to strong congressional and public interest, last year DOD released videos of encounters with objects exhibiting aeronautically improbable behaviors that could not be readily explained as a known type of aircraft or some other phenomenon. DOD also set up a task force to further investigate such encounters, which it converted last month into an office called the Airborne Object Identification and Management Synchronization Group.

The NDAA formally authorizes the office and stipulates its duties, such as coordinating with other agencies, developing standard procedures for reporting and analyzing incidents, and evaluating associated threats and possible links to rival governments or nonstate actors. The provision also directs DOD to prepare to rapidly respond to incident reports and to designate organizations responsible for “scientific, technical, and operational analysis” of data gathered from field investigations. In addition, it directs the office to create a “science plan” for developing and testing theories about such encounters. [Sec. 1683]

Havana Syndrome. Congress has taken a strong interest in a years-long rash of “anomalous health incidents” that involve enduring trauma experienced by U.S. government personnel who in most cases were working overseas when it began. Because the first reports of such incidents involved personnel stationed in Havana, Cuba, the trauma is often referred to as “Havana Syndrome.” Although there is no firm explanation for these incidents, some scientific and medical experts have speculated they may have been caused by directed-energy devices. Earlier this fall, President Biden signed the HAVANA Act, which provides compensation to afflicted individuals.

The NDAA directs the president to designate a senior official as “anomalous health incidents interagency coordinator,” overseeing relevant efforts across the government. The coordinator will be responsible for developing policy options for preventing, mitigating, and deterring “suspected attacks presenting as such incidents,” as well as coordinating research in consultation with the White House Office of Science and Technology Policy. Relevant federal agencies are also directed to designate “anomalous health incident agency coordination leads,” who are not permitted to delegate their responsibilities and must be a Senate-confirmed official “or other appropriate senior official.” The provision further requires agencies to develop guidance concerning the incidents to agency employees thought to be at risk of exposure to them. [Sec. 6603]