Defense Policy Bill Heads to Conference with Focus on Strategic Technologies

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Publication date: 
3 July 2018
Number: 
80

As the conference committee for this year’s iteration of the National Defense Authorization Act begins its work, conferees will navigate numerous proposals for changes in defense R&D and innovation policy.

On June 18, the Senate passed its version of the National Defense Authorization Act (NDAA) on a vote of 85 to 10. The House already passed its version on May 24 on a vote of 351 to 66, and a conference committee will now convene to hammer out the legislation’s final form.

The NDAA is a sprawling bill that Congress passes annually to provide policy updates for the Department of Defense and National Nuclear Security Administration. Led by their respective Armed Services Committees, the House and Senate each make largely separate sets of policy proposals before negotiating in conference which proposals should become law. The conferees will also have to resolve any contradictions between the bills and the respective reports that accompany them.

While the NDAA addresses military and national security policy generally, it always includes numerous provisions relating to R&D and defense technology. This year, Congress has been moving quickly to advance the bill. Congressional leaders have said they believe they can finish work on it by the end of the fiscal year on Sept. 30 and possibly as soon as late July.

Innovation in strategic technologies a major focus this year

For several years, DOD and the Armed Services Committees have taken a strong interest in augmenting the department’s ability to develop strategically important technologies to help U.S. military forces maintain superiority over adversaries. Their efforts have focused on developing administrative mechanisms for facilitating the advancement of such technologies and on giving special support to particular technology areas such as directed energy, hypersonics, artificial intelligence (AI), and quantum information science (QIS).

In the fiscal year 2017 NDAA, Congress directed DOD to revive the position of under secretary of defense for research and engineering (USD(R&E)) to spearhead these efforts. DOD established the position in February of this year and the Senate confirmed former NASA Administrator Mike Griffin to occupy it shortly thereafter. Congress and Griffin are now working to identify DOD’s next steps in moving their agenda forward.

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Under Secretary of Defense for Research and Engineering Mike Griffin testified before the House Armed Services Committee in June about aggressive efforts by China to gain access to the fruits of U.S. R&D.

Under Secretary of Defense for Research and Engineering Mike Griffin testified before the House Armed Services Committee in June about aggressive efforts by China to gain access to the fruits of U.S. R&D.

(Image credit – C-SPAN)

National Security Science and Technology Strategy. A House provision directs DOD to develop and implement a strategy to prioritize its science and technology investments, and to update the strategy annually through 2021. Elements to be incorporated in the strategy include assessments of high-priority S&T programs, including hypersonics, directed energy, synthetic biology, and AI, as well as recommendations for changes in authorities, regulations, and policies that would support the strategy’s goals.

Reports on U.S. and adversary capabilities. A Senate provision directs DOD and the director of national intelligence to review, in consultation with the Air Force Research Laboratory and Defense Advanced Research Projects Agency, “key national security technology capability advantages, competitions, and gaps between the United States and ‘near peer’ nations,” including areas where a domestic industrial base shortfall may arise. A separate Senate provision directs the Defense Intelligence Agency to prepare a report comparing the capabilities of the U.S. and its adversaries in emerging technology areas, including QIS and directed energy.

Report on the defense research and engineering enterprise. Another Senate provision directs DOD to assemble a report that includes recommendations on the management and coordination of the department’s R&D portfolio, its research and engineering workforce, its research and testing facilities and infrastructure, and its relations with “academia, the acquisition community, the operational community, and the commercial sector.”

Enhancement of USD(R&E)’s authority. A Senate provision grants the USD(R&E) full authority over DOD and service branch R&D programs in priority areas, including directed energy, hypersonics, AI, and future space satellite architectures.

Quantum information science. A House provision requires DOD to deliver a briefing to Congress on potential military applications of QIS. A Senate provision directs DOD to establish a coordinated R&D program in quantum information science and technology under the direction of the USD(R&E).

Directed energy. A House provision extends through fiscal year 2019 provisions in the NDAAs for fiscal years 2017 and 2018 that grant the USD(R&E) authority over prototype development for directed energy weapons systems. A Senate provision provides new detail regarding how the USD(R&E) should prioritize and coordinate directed energy testing activities. A separate Senate provision clarifies that the Joint Directed Energy Transition Office has authority over high-powered microwave technologies in addition to the other technologies within its jurisdiction.

Rapid innovation. A Senate provision codifies the Defense R&D Rapid Innovation Program, which provides a mechanism and funding for rapidly transitioning projects developed through DOD’s Small Business Innovation Research program into acquisition contracts. A separate Senate provision directs the USD(R&E) to establish procedures for identifying areas of rapid technological change and for expediting investment, R&D, and demonstration projects in those areas.

Strategic Capabilities Office. A House provision directs DOD to develop a plan to eliminate its Strategic Capabilities Office (SCO) and transfer its functions elsewhere in the department by the beginning of fiscal year 2021. A Senate provision prohibits DOD from terminating SCO unless it certifies that its key functions will be replicated and appropriately managed elsewhere in the DOD organization. DOD established SCO in 2012 to explore novel tactical uses for existing and near-future technologies and the office’s budget has rapidly grown to over $1 billion. It is currently being folded into the USD(R&E) organization and its founding director, physicist Will Roper, recently stepped aside to become assistant secretary of the Air Force for acquisition.

Several proposals confront foreign exploitation of U.S. technology

This year, Congress has become increasingly interested in countering foreign efforts to gain access to intellectual property, U.S.-trained experts, and other fruits of U.S.-based R&D. China has become a particular focus for lawmakers.

Export controls on critical technologies. As part of a broader overhaul of the Committee on Foreign Investment in the United States (CFIUS), a Senate provision directs the president to establish in coordination with the Departments of Commerce, Defense, Energy, and State a “regular, ongoing interagency process to identify emerging and foundational technologies” that are essential to U.S. national security and to establish appropriate controls to prevent their transfer via export to adversary nations.

China. A Senate provision modifies the contents of DOD’s annual report on military and security developments involving China to include Chinese efforts to gain access to U.S. technology through investment, industrial espionage, cybertheft, and “academia,” as well as efforts “to influence the media, cultural institutions, business, and academic and policy communities of the United States to be more favorable to its security and military strategy and objectives.”

A House provision directs the president to submit a “whole-of-government strategy” with respect to China, which includes consideration of, among other items, the “use of intelligence networks to exploit open research and development,” the “use of economic tools, including market access and investment to gain access to sensitive United States industries,” the “abuse of employment and student visa programs to enter the United States” in order to conduct influence operations or establish Communist Party-controlled entities, and the “Chinese Communist Party’s coercion or intimidation of Chinese nationals studying or working in the United States or outside China.”

Foreign exploitation of U.S. universities. A House provision permits DOD to deny funding to research groups that fail to certify that no recipient of DOD funds has participated in an expert or talent recruitment program operated by China, Iran, North Korea, or Russia. An amendment to the Senate bill offered by Sen. John Cornyn (R-TX) would have directed DOD to establish an initiative to work with U.S. universities to protect “intellectual property, controlled information, key personnel, and information about critical technologies relevant to national security,” to limit “undue influence by countries engaged in illicit behaviors to exploit United States technology within the Department of Defense research, technology, and innovation enterprise,” and to support the development of domestic talent in relevant areas.

Although Cornyn’s amendment was not included in the final Senate NDAA bill, it could still be revived in conference. The Coalition for National Security Research, an advocacy group comprising universities, private companies, and other research organizations, has told FYI it intends to lobby Congress for its inclusion in lieu of the House provision.

Congress aims to improve DOD labs’ ability to collaborate

To enhance innovation at DOD laboratories, Congress continues to authorize various mechanisms that labs can use to exchange personnel and conduct collaborative research with universities and private companies.

Open campus program. A House provision authorizes the Air Force Research Laboratory to develop an open campus program modeled on the one currently operated by the Army Research Laboratory.

Entrepreneurship in DOD labs. A House provision authorizes DOD to establish a program to provide training in commercialization and entrepreneurship for personnel at DOD laboratories. A separate House provision directs DOD to develop regulations for permitting scientists at DOD labs to take unpaid sabbaticals to work in the private sector.

Modifications to new collaboration authority. Two Senate provisions modify an authority provided to DOD in the fiscal year 2018 NDAA that allows the department to create collaborative arrangements to “facilitate expedited access to university technical expertise, including faculty, staff, and students.” The first provision adds space, infrastructure resilience, photonics, and autonomy to the mission areas to which such arrangements can apply. The second extends the authority through fiscal year 2022 and directs that DOD and the military departments “shall,” rather than “may,” make use of it.

Use of partnership intermediaries. A Senate provision authorizes DOD laboratories to work with state, local, and authorized nonprofit entities that have been established to facilitate partnerships with regional businesses and academic institutions.

SBIR/STTR. A Senate provision would make DOD’s Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs permanent.

R&D coordination. A House provision directs DOD to establish an “innovators database” to compile information about small businesses that have received funds through DOD’s SBIR and STTR programs. The objective is to provide a resource for DOD to “determine whether an organic technology exists or is being developed” by a DOD-supported entity before initiating a new contracting process. Another House provision directs DOD to establish a department-wide process for coordinating research requests and ongoing research efforts “to minimize duplication and reduce costs.”

Recruiting and retaining STEM talent still a focus

Congress is also continuing to develop means that DOD laboratories and other technical organizations within the department and military services can use to recruit, train, and retain skilled personnel.

STEM jobs action plan. A House provision directs DOD to establish expected loss rates due to retirements and voluntary departures for different positions within its STEM workforce, to assess future requirements, and to formulate an action plan for ensuring the department can maintain adequate numbers of STEM personnel.

Minority STEM personnel recruitment study. Another House provision directs DOD to study how the department can attract and recruit students with STEM backgrounds from Hispanic Serving Institutions, Historically Black Colleges and Universities, and Asian American and Native American Pacific Islander Serving Institutions.

Direct and expedited hiring authority. The House and Senate bills contain several provisions that modify and expand on existing DOD direct-hire and expedited hiring authorities pertaining to personnel in STEM fields and other technical fields, as well as to recent graduates and current students of post-secondary educational institutions. One Senate provision also establishes a direct-hire authority for DOD laboratories to recruit STEM graduates from minority-serving educational institutions.

Recruiting authority. A Senate provision includes SCO and the Defense Innovation Unit Experimental among DOD entities with the authority to use special incentives to recruit experts in science and engineering fields.

Major policy changes proposed for space and missile defense

Last year, the House Armed Services Committee pressed to transfer responsibility for many space activities from the Air Force to a new Space Corps while leaving the Air Force’s space-related R&D unaltered. DOD resisted the proposal and Congress instead opted to initiate a series of reforms to DOD and the Air Force’s administration of space activities. While the current House bill would continue last year’s stepwise reforms, it remains unclear how President Trump’s recent call for an independent Space Force will shape conference committee negotiations.

Space activity reforms. A House provision directs DOD to develop a distinct system for defense space acquisitions and directs the Air Force to develop and implement a plan to “increase the number and improve the quality” of its civilian and military “space cadre.” It also directs the Air Force to establish a new Numbered Air Force responsible for space warfighting operations and establishes a unified command responsible for joint space warfighting operations under U.S. Strategic Command. A Senate provision directs DOD to develop a space warfighting policy incorporating a review of U.S. space capabilities.

International Space Station. A Senate provision directs DOD to review projects it is carrying out aboard the International Space Station and to report back to Congress.

Authority over missile defense R&D. A House provision transfers authority over R&D programs intended for incorporation in missile defense systems from the USD(R&E) to the director of the Missile Defense Agency (MDA).

Missile defense testing. A Senate provision clarifies that MDA tests that “do not achieve an intercept or the main objective, should not be considered failures.” This position reflects statements by Griffin and others that DOD should consider vigorous testing as an integral part of technology development and regard failed tests as learning opportunities.

Space-based missile-tracking sensor architecture. A Senate provision directs DOD to accelerate the development and fielding of missile defense system capabilities, including a space-based sensor architecture for missile tracking. A separate provision negates a provision in last year’s NDAA that made initiation of work on such an architecture contingent on recommendations from the Trump administration’s missile defense policy review, which has not yet been released. A House provision directs DOD to proceed with preparations to develop the sensor architecture, regardless of the policy review.

Space-based missile defense system. A Senate provision directs DOD to begin development of a space-based missile defense system. Last year’s NDAA made initiation of such work contingent on it being recommended in the forthcoming missile defense policy review.

Hypersonic capabilities. A Senate provision directs MDA to accelerate work on hypersonic missile defense. A House provision encourages the Air Force to enter into long-term partnerships with universities to “conduct research and science and engineering education for next generation hypersonic capabilities.”

Lawmakers seek to steer nuclear security policy in new directions

Status of NNSA within Department of Energy. A Senate provision transfers authority over many NNSA activities from the Secretary of Energy to the NNSA administrator. The Senate report explains that Congress has been “wary of the influence of DOE’s competing interests on [NNSA] weapons programs, which are intended to meet the requirements of the DOD.” It also states that the Senate Armed Services Committee “believes that these fears have been realized to an extent” and is “frustrated that so many reports, studies, and panels have come to the same conclusions for more than 15 years, yet no structural change has been implemented.” The report notes the committee “does not intend for this provision to be interpreted as an indictment of the current Secretary of Energy or Administrator of the NNSA, who have performed admirably.”

Nuclear Weapons Council. A House provision makes the USD(R&E) a member of the Nuclear Weapons Council, an interagency body responsible for coordinating DOD and DOE activities relating to the management of the U.S. nuclear weapons stockpile.

Personnel exchange. A Senate provision instructs the Nuclear Weapons Council to establish a program for the interagency exchange of civilian and military personnel “working on nuclear weapons policy, production, and force structure issues” in the Office of the Secretary of Defense, the Joint Staff, the Navy, the Air Force, and the NNSA Office of the Deputy Administrator for Defense Programs.

Low-yield nuclear warhead. A House provision authorizes NNSA to begin development of a low-yield nuclear warhead for submarine-launched ballistic missiles, in line with the Trump administration’s Nuclear Posture Review. A corresponding Senate provision relaxes an existing requirement that NNSA acquire permission from Congress before developing a new low-yield warhead.

Plutonium strategy. A House provision directs DOD to commission an assessment of NNSA’s strategy for producing plutonium pits to meet the future needs of the U.S. nuclear weapons stockpile. DOE recently announced it would expand pit production by converting the Mixed Oxide (MOX) Fuel Fabrication Facility, currently under construction at DOE’s Savannah River Site, into a pit production facility. Lawmakers from New Mexico, who support expanding the existing production capacity at Los Alamos National Laboratory, have objected to the decision.

MOX facility. A House provision directs DOE to continue construction of the MOX facility, and a Senate provision prohibits DOE from terminating construction of the facility. The Senate provision would effectively negate DOE’s recent decision to halt construction and to convert the facility to produce plutonium pits, while the House provision would negate it if appropriators agree to fund continued construction. The MOX facility was intended to convert plutonium from nuclear weapons into usable nuclear fuel but the project has suffered from major schedule delays and cost overruns.

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