OMB Issues Statement of Administration Policy on National Defense Authorization Act for FY 2021
WASHINGTON,
The Administration strongly supports enactment of a National Defense Authorization Act (NDAA) for a 60th consecutive year. It is also grateful for the strong, bipartisan work this year
by the
The Administration applauds the Committee's bipartisan support for a national defense discretionary topline of
Nevertheless, H.R. 6395 includes several provisions that present serious concerns. Among other major provisions, the Administration strongly objects to section 2829, which would require renaming of certain military institutions. It also has serious concerns about provisions of the bill
that seek to micromanage aspects of the executive branch's authority, impose highly prescriptive limitations on the use of funds for
to protect national security interests. Many of these provisions would pose significant challenges to continued execution of the NDS.
The Administration looks forward to working with
If H.R. 6395 were presented to the President in its current form, his senior advisors would recommend that he veto it.
1 Renaming Certain Military Installations and Other Defense Property (Section 2829). The Administration strongly objects to section 2829 of the bill, which would require renaming of any military installation or defense property named after any person who served in the political or military leadership of any armed rebellion against
Modification and Clarification of Construction Authority in the Event of a Declaration of War or National Emergency (Section 2801). The Administration strongly objects to section 2801 because it would significantly curtail the authority of
imposing spending caps, limiting the source of funds, constraining the Secretary of Defense's
ability to waive laws that impede expeditious response to an emergency, and imposing burdensome congressional reporting requirements. Section 2808 was originally enacted to allow for the adjustment of military construction priorities in the event of a declaration of war or national emergency, and this section would greatly restrict that ability. These arbitrary limits increase risks to the Armed Forces and the national security of
Requirement of Consent of the Chief Executive Officer for Certain Full-time National Guard Duty Performed in a State, Territory, or the
Force Reduction in
discretion of the officials whose concurrence would be required for the certification. Further, by requiring the concurrence of three military officers for the certification, the provision also would subordinate the Secretary of Defense's discretion to the judgment of those military subordinates, upending the military chain of command and the principle of civilian control of the military.
Force Reduction in
Commander in Chief.
Indo-Pacific Reassurance Initiative (IPRI) (Section 1251). The Administration supports the
Committee's intent to emphasize our deep commitment to defending our interests and those of
our allies in the Indo-Pacific region. The Administration looks forward to working with the
Diversity and Inclusion (Section 912). The Administration also appreciates the Committee's support for
Limitations on Use of Funds in the
Coordination in Transfer of Funds by
Advanced Naval Nuclear Fuel System Based on Low-Enriched Uranium (Section 3116).
The Administration objects to the bill's direction to establish a program to assess the viability of using low-enriched uranium in naval nuclear reactors. In 2018, the Secretary of Energy and the Secretary of the
Formally Utilized Sites Remedial Action Program (Section 3103). The Administration objects to section 3103 because it would reduce
Information and Intelligence Exclusions (Sections 1631-1632 and 1712). The Administration supports the intent of sections 1631, 1632, and 1712. These sections, however, do not adequately reflect the Director of National Intelligence's statutory responsibility to protect intelligence sources and methods with regard to cybersecurity threat intelligence related to information systems operated by agencies within the Intelligence Community. With respect to section 1631, the Administration supports appropriate collaboration on cyber threat information within the United States Government. The Administration, however, strongly objects to the lack of an opt-out provision reasonably tailored to address sources and methods information sharing related to such systems. With respect to section 1632, the Administration expects to use the rulemaking authority in subsection (e) to address similar concerns. Finally, the Administration strongly objects to section 1712, which would lead to the potential disclosure in public reports of classified information and information relating to intelligence sources and methods. It should be noted, however, that the
Assistant Secretary of Defense for Space and Strategic Deterrence Policy (Section 921). The Administration is grateful for the continued partnership with
Military Construction Infrastructure and Weapon System Synchronization for Ground-Based Strategic Deterrent (Section 2404). The Administration welcomes the Committee's general approach in section 2404 to provide some of the flexibility requested by the Administration for Ground-Based Strategic Deterrent launch facility and launch center conversion activities. In order to keep these critical projects on time and on budget, however, the Administration requests that
Limitations on Divestiture and Retirement (Sections 122-125, 1045, and 1047). The Administration strongly objects to language in sections 122 (RC-135), 123 (E-8), 124 (RQ-4), 125 (KC-135, KC-10), 1045 (EQ-4), and 1047 (A-10) that limits
Bombers (Section 129). The Administration strongly objects to this provision because it would constrain
Enhanced Domestic Content Requirement for Major Defense Acquisition Programs (Section 825). The Administration strongly objects to section 825 requiring Major Defense Acquisition Programs (MDAPs) to be 100 percent manufactured domestically by the arbitrary deadline of
Documentation Relating to the F-35 Aircraft Program (Section 131). The Administration strongly objects to section 131, which would limit the ability of the Secretary of Defense to grant Milestone C approval for the F-35 program or enter into full-rate production until 30 days after the Secretary has submitted extensive congressional reporting requirements that go well beyond the requirements of 10 U.S.C. 2366c for a Milestone C decision. The reporting requirements are 5 overly burdensome and, in some cases, would be extremely difficult, if not impossible, to answer. The requirements would therefore cause significant delay in achieving a full-rate production decision and providing critical warfighting capability.
Reprioritization of Military Construction Funding to Unrequested Projects (Section 4601).
The Administration objects to the bill's realignment of military construction funding from priority projects to other projects not included in the FY 2021 President's Budget Request. Contrary to the Administration's fiscally responsible policy to fully fund projects, the bill proposes to fund 12 military construction projects incrementally, effectively creating an unfunded obligation of
Pilot Program on Prosecution of Special Victim Offenses Committed by Attendees of Military Service Academies (Section 549A). The Administration strongly objects to this provision because it outsources authority for discipline, as well as undermines commander accountability and the chain of command relationship. This provision is inconsistent with many provisions in the Uniform Code of Military Justice, necessitating major revision of the Rules for Courts-Martial, which is not practicable by the provision's effective date. The likely consequence is that there would be no operable military justice system for sexual assault cases and other covered cases arising from the military service academies for some period of time. Additionally, section 540F of the FY 2020 NDAA called for a study and report to assess the feasibility of such a pilot program, which is due by
Basic Needs Allowance for Low-Income Regular Members (Section 602). The Administration strongly objects to providing a basic needs allowance to low-income members because
6 detailed, personal income information to
Notice and Comment for Proposed Actions of the Secretary of Defense Relation to Food and Beverage Ingredients (Section 1753). The Administration strongly objects to the requirement to publish a
Modification to Limitation on the Realignment or Reduction of Military Medical Manning End Strength (Section 715). The Administration strongly objects to any prohibition related to realignment or reduction of military medical end strength until the Secretary of Defense submits a report to
Mandatory Criteria for Strategic Basing Decisions (Section 1048). The Administration strongly objects to section 1048 because isolating a limited set of basing factors, reporting pre-decisional basing information, and providing publicly releasable quantitative analysis on community support will embolden special interest groups to influence
Limitation on Reserve Components of the
Support Provided to Other United States Agencies for Counterdrug Activities and Activities to Counter Transnational Organized Crime (Section 1012). The Administration objects to the language in section 1012 requiring congressional notification 15 days before providing counterdrug and counter transnational organized crime support to
7 Nonimmigrant Status for Certain Nationals of
565, was passed by the House and sent to the
Limitation on Authority to Exclude Employees from Chapter 71 of Title 5 (Section 1102).
The Administration objects to section 1102 because it would constrain the President's authority
to protect national security interests through a critical workforce management tool. This authority has allowed Presidents to respond quickly to emerging threats and national emergencies since 1978, and this prohibition is unwarranted.
Limiting the Number of Local Wage Areas Defined Within a Pay Locality (Section 1106).
The Administration strongly objects to section 1106 because it would unnecessarily increase the costs for Federal agencies to conduct business in certain parts of the country by forcing agencies to pay their employees well above market wage levels.
Modification of Requirements Relating to
Pilot Program to Support Combatant Command Military Construction Priorities (Section 2807). Although the Administration supports the Committee's intent to expedite the posture priorities in the Indo-Pacific Command, it objects to section 2807, which would establish a pilot program to reserve 10 percent of all appropriated military construction funds for execution by the Combatant Command. The Administration has placed a significant focus on ensuring that the necessary capabilities are achieved in
8 Homeland Defense Radar--Hawaii (HDR-H) (Section 4201). The Administration strongly disagrees with the authorization of funding for the Homeland Defense Radar -
Modifications to Supervision and Award of Certain Contracts (Section 841). The Administration strongly objects to section 841 because the provision will increase acquisition time, add to project costs, affect construction quality, and duplicate existing reporting and advertising requirements to well-known SBA and Federal systems. It would insert the government in prime contractors' subcontracting arrangements by promoting government-directed subcontractor arrangements. It also would limit technical capability at the subcontractor level by creating a regional preference for firms, potentially affecting contractor performance by excluding more experienced firms, and could exclude competitive and cost-effective small businesses outside those parameters, extend contract lead times, and increase project costs.
Standardization of Payment of Hazardous Duty Incentive Pay for Members of the Armed Forces (Section 613). The Administration objects to section 613 because it restricts the ability to prorate payments of all forms of hazardous duty pay. Requiring the payment without proration would be a notable departure from the norm and equity of other incentive pay authorities in which the payment amounts reflect the duration of actual qualifying service. Without proration, a member who performs a hazardous duty for only part of a month would receive a "windfall," and this devalues the payment for a member who must perform the hazardous duty for an entire month. This provision, with its narrow scope and restrictive provisions, removes the Secretary's discretion and flexibility concerning the payment method for hazardous duty pay.
Chair of
Sustainment mission by limiting its ability to execute or obligate more than 75 percent of FY 2021 funds. This funding is limited until the services and OSD appoint military officers to the
Analysis of Alternatives for Homeland Missile Defense Missions (Section 1656). The Administration strongly objects to section 1656, which would direct an Analysis of Alternatives for Homeland Missile Defense. In 2016,
Responsibility for the Sector Risk Management Agency Function of
The Administration strongly objects to this provision's assignment of responsibilities for the Defense Industrial Base within
Assistant Secretary of Defense for Industrial Base Policy (Section 902). The Administration strongly objects to section 902. The provision would constrain the Secretary of Defense's discretionary authority to use Assistant Secretary of Defense positions for his highest priorities. Further, this provision would create a legal inconsistency by creating an Assistant Secretary of Defense for Industrial Base Policy with authority over export control issues, when current law vests that authority with the Under Secretary of Defense for Policy.
Modifications to Implementation Plan for Restructure or Realignment of Military Medical Treatment Facilities (Section 716). The Administration strongly objects to the addition of a year-long waiting period before executing the changes to the military medical treatment facilities required by
Limitation on the Physical Move, Integration, Reassignment, or Shift in Responsibility of Marine Forces Northern Command (Section 1050). This provision unduly restricts the Commandant's ability to manage his service by placing artificial barriers to realignment of commands that are intended to provide the following: (1) Better posturing of
Extension of Limitation Relating to Classification of High-Level Waste (Section 3113). The Administration strongly objects to section 3113, which impairs
Nuclear Warhead Acquisition Processes (Section 3111). The Administration objects to section 3111, which would impose overly prescriptive and duplicative requirements on the
Plutonium Pit Production (Section 3115). The Administration objects to section 3115, which adds unnecessary requirements for an independent cost estimate that assigns a "confidence level." DOE Order 413.3B processes for managing capital asset acquisition already include the development of independent cost estimates at each critical decision milestone, including confidence levels based on project scale, complexity and scope reasonable at the expected milestone, as well as independent cost estimates when appropriate.
Sections 1213, 1258, 1259, and 1266, among other provisions, concern foreign policy and foreign assistance priorities, and while they may advance efforts that the Administration supports, the Administration is concerned that these provisions do not have a means to ensure the implementation of these authorities are consistent with
Clarifications regarding scope of employment and reemployment rights of members of the uniformed services (Section 534). The Administration objects to the arbitration provision of section 534. Barring military service discrimination claims from being sent to arbitration in accordance with existing agreements would circumvent established contracts and add unnecessary legal procedures. This would not clarify or reinforce the rights of members of the uniformed services. Instead, it would fundamentally alter the process of dispute resolution to an unknown end.
Amendment to definition of qualified apprentice (Section 817). The Administration objects to section 817 because it would attempt to undercut Industry-Recognized Apprenticeship Programs and other private sector-led workforce training models, which support workers in developing skills and finding jobs. Undermining high-quality and successful apprenticeship programs that have been developed by industry is a move in the wrong direction.
Special Rules for
Competition requirements for purchases from
Development of Hypersonic and Ballistic Missile Tracking Space Sensor Payload (Sections 1651 and 1653). The Administration appreciates the intent of section 1653 and agrees with the need to mature space-based sensing capabilities that could provide value for missile defense. The Administration, however, objects to the requirement that the MDA be solely responsible for the development of the hypersonic and ballistic tracking space sensor payload because it would fragment space capabilities across multiple agencies.
Modification of
The Administration strongly objects to section 217, which would realign the Joint Artificial Intelligence Center (JAIC) to the Deputy Secretary of Defense (DSD). Elevating
Report on Risk to National Security Posed by Quantum Computing Technologies (Section 1614). The Administration objects to provisions that have already been completed by the
Renewal of Fallon Range Training Complex Land Withdrawal and Reservation (Section 2842). The Administration appreciates section 2842, which would extend the current withdrawal and reservation of lands known as the
Renewal of
Constitutional Concerns. Certain provisions in this bill raise constitutional concerns. The Administration looks forward to working with the
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