H.R. 4310confrpt: Conference Report on National Defense Authorization Act for Fiscal Year 2013

H.R. 4310confrpt

Conference Report on National Defense Authorization Act for Fiscal Year 2013

December 20, 2012 (112th Congress, 2nd Session)

Staff Contact

Floor Situation

On Thursday, December 20, 2012, the House is scheduled to begin consideration of the Conference Report on H.R. 4310 (H. Rept. 112-705), the National Defense Authorization Act for FY2013, under a rule.  The rule would provide for one hour of general debate and one motion to recommit if applicable.  H.R. 4310 was introduced by Rep. Buck McKeon (R-CA) on March 29, 2012, and was approved by the House on May 18, 2012 by a vote of 299-120.  The Senate approved its version of the Act (S. 3254) on December 4, 2012 by a vote of 98-0

Bill Summary

The Conference Report on H.R. 4310 would authorize appropriations for the Department of Defense (DoD) and for the national security programs of the Department of Energy (DoE) for Fiscal Year 2013.  This budget authority is intended to enhance national security through the procurement of materiel, the modernization of the Armed Forces, and continued funding for overseas contingency operations in Iraq and Afghanistan. 

The bill also contains a number of provisions concerning military personnel policy, education and training, military pay and allowances, acquisition policy and management, DoD organization and management, civilian personnel, and matters relating to foreign nations.

The bill would authorize a total discretionary budget authority of $633.3 billion for FY2013 ($1.7 billion above the President’s FY2013 budget request) for programs within the jurisdiction of the Armed Services Committee.  Of this amount, $527.5 billion is for “base” DoD programs, including $17.4 billion for Department of Energy national security programs and the Defense Nuclear Facilities Safety Board, and $88.5 billion for OCO requirements.

These amounts include: $98.4 billion for procurement; $10.1 billion for procurement to support OCO; $69.9 billion for research, development, & testing (RDT&E); $175.5 billion for operation and maintenance (O&M); $62.1 billion for O&M supporting OCO; $135.7 billion for military personnel; $14 billion for personnel supporting OCO. 


Provisions relating to military personnel: The bill would authorize a 1.7% pay increaseand extend bonuses and special pay for our men and women in uniform.  Compared with end-strength levels for FY2012 authorized under current law, the bill would authorize reductions in active-duty personnel across all four services: 9,900 fewer for the Army; 3,000 fewer for the Navy; 4,800 fewer for the Marine Corps; and 3,340 fewer for the Air Force.

The bill would include a provision establishing cost-sharing rates under the TRICARE pharmacy benefits program for fiscal year 2013 in statute, and would in fiscal years 2014 through 2022 limit any annual increases in pharmacy copayments to increases in retiree cost-of-living adjustments.   This would be offset by a 5-year pilot program that requires TRICARE-for-life recipients to obtain refills of maintenance drugs through the TRICARE mail-order program.

The bill would also provide new regulations and procedures for combating and prosecuting sexual assault within the military, as well as deterring potential sexual predators.  The bill would require that new commanders assess the climate of their organizations with regard to sexual assault shortly after assuming command and then annually thereafter.  Additionally, the bill would require the Secretary of Defense to make information about resources available to report and respond to sexual assaults widely available throughout the Department.  The conference report would also require each of the military services to establish a special victims’ capability for the investigation, prosecution and victim support in connection with sexual assault and other offenses under the Uniform Code of Military Justice.

The bill would also require the Secretary to develop a comprehensive policy on the prevention of suicide among service members, and would require the Secretary to establish a position within the Office of the Secretary of Defense (OSD) that would be responsible for overseeing all suicide prevention and resilience programs of DOD and the military services.


Provisions addressing readiness of troops, equipment, and facilities: With the funds authorized in this bill the following key capabilities and programs would be addressed:

  • Restore funding for three Navy Cruisers, each with at least a decade of service life remaining, that were scheduled for early retirement;
  • Retain the Air Force Global Hawk Block 30 unmanned intelligence, surveillance, and reconnaissance (ISR) aircraft in an operational status;
  • Maintain minimum sustained production of Abrams tanks, Bradley fighting vehicles, and Hercules recovery vehicles;
  • Support advance procurement of the EA-18G Growler to provide additional airborne electronic warfare capabilities;
  • Provide $1.8 billion in counter-IED funding for the warfighter;
  • Fully fund the Army Ground Combat Vehicledevelopment program;
  • Fully fund requests for 50 AH-64 Apaches, 59 UH-60 Blackhawks, and 44 CH-47 Chinooks, 29 F-35 Lightning II aircraft, 26 F-18 E/F Super Hornets, V-22 aircraft, 36 MQ-9 Reaper UAS;
  • Resource underfunded critical dual-use equipmentrequirements for Guard and Reserve forces;
  • Increase the authorized multi-year procurement of Virginia-class submarines to 10, up from 9;
  • Increase the authorized multi-year procurement Arleigh Burke-class destroyers to 10, up from 9;
  • Limit the DoD’s ability to spend FY13 Defense Production Act funds on biofuel refinery construction until they receive matching funds from the Departments of Energy and Agriculture.
  • With respect to the Air Guard aircraft and manpower, the bill would:
    • Require the Air Force to integrate the Army’s Time Sensitive / Mission Critical mission concept of operations into Air Force doctrine, strategy, modeling and operations by June 1, 2013;
    • Stop retirement of 26 C-5A aircraft, holding the strategic airlift total at 301 aircraft, until DoD completes a comprehensive study of air mobility requirements;
    • Require the Air Force to maintain an additional 32 C-130 or C-27J tactical airlift aircraft to meet the Army’s requirement of 40 dedicated aircraft to support Time Sensitive / Mission Critical direct support airlift; and
    • Permit the Air Force to continue with prior FY13 aircraft divestments, transfers, and retirements.


Selected policy provisions:


Ballistic missile defense: The conference report would include a provision to require the Secretary of Defense to evaluate at least three possible locations in the United States – at least two of which would be on the East Coast – that would be best suited for future deployment of a missile defense interceptor site to protect the homeland against long-range missile threats from nations such as North Korea and Iran. The provision would also require the Secretary to prepare an environmental impact statement for each location the Secretary evaluates. Finally, the provision would require the Director of the Missile Defense Agency to develop a contingency plan for the deployment of a potential future homeland missile defense interceptor site, in case the President determines to proceed with such additional deployment, and to notify the congressional defense committees when such contingency plan has been developed.

The bill would also state the sense of Congress concerning homeland ballistic missile defense and would require a report on the status of efforts to improve the homeland ballistic missile defense capability of the United States.

Afghanistan: The conference report would reauthorize vital authorities for commanders on the ground and key programs to assist the transition period between now and 2014, including building Afghan National Security Forces.  The bill would require presidential notification of any change in force level in Afghanistan and the associated risk of such a change in force level.

Additionally, the bill would impose reporting requirements on insider attacks in Afghanistan, as well as a certification on the vetting and professional standards of the Afghan Public Protection Force for the provision of security on installations where U.S. Forces are present, in order to mitigate the recent increase in “green on blue” attacks.

Global Challenges: The conference report would require Combatant Commanders to assess capability gaps against North Korea, China, and Iran.

The bill would also provide additional funding for national security space programs, at a level approximately $50 million above the Administration’s request.  Additionally, the bill would also increase oversight of cyber operations and capabilities, and would support several key areas of science and technology investments.

Auditability: The bill would implement recommendations from the House Armed Services Committee (HASC) Financial Management and Auditability Reform Panel that would improve execution and management of Department of Defense Enterprise Resource Planning systems.

Competition and Innovation: The FY13 NDAA conference report would require the Secretary to develop a national security strategy for the industrial base and eliminate obstacles to small business competition for Defense Department initiatives.

Iran: The conference report would assert that the U.S. should be prepared to take all necessary measures, including military action if required, to prevent Iran from threatening the U.S., its allies, or Iran’s neighbors with a nuclear weapon and reinforces the military option should it prove necessary.  In related provisions, the bill would extend sanctions to additional sectors of the Iranian economy, including energy, shipping, ship building, and financial services, in an effort to further restrict areas where the Government of Iran can generate revenue.

Strategic Forces: The bill would modernize and support DoD’s nuclear forces, including intercontinental ballistic missiles, nuclear bombers, cruise missiles and the Navy’s strategic submarines and submarine-launched ballistic missiles.  Specifically, the bill would:

  • Implement measures and oversight mechanisms to ensure greater efficiency and effectiveness at National Nuclear Security Administration and begin the process of reform of the Defense Nuclear Facilities Safety Board.
  • Impose oversight on nuclear reductions, including requiring a new nuclear posture review prior to the president undertaking reductions to America’s nuclear deterrent.
  • Support missile defense cooperation with key allies, including Israeli Cooperative Missile Defense programs like Iron Dome.

Special Operations Forces: The conference report would preserve and institutionalize capabilities such as irregular warfare and security force assistance within the services and U.S. Special Operations Command.  The bill would authorize an additional $159 million to fulfill a critical unfunded requirement identified by the Commander of U.S. Special Operations Command for high-definition Intelligence, Surveillance, and Reconnaissance (ISR) capabilities.

Guantanamo Bay: The FY13 NDAA conference report would prohibit the transfer of detainees from Guantanamo Bay to the United States.

Detainees in Afghanistan: The FY13 NDAA conference report would require notice to Congress before the transfer or release of any foreign detainees in Afghanistan. The conference report would also require various assessments regarding the disposition of such detainees.


The following is from the section of the Conference Report (H. Rept. 112-705) specifically addressing “Rights Unaffected” (section 1029), a provision dealing with habeas corpusand detention policies:

The House bill contained a provision (sec. 1033) that would state that nothing in the Authorization for Use of Military Force (Public Law 107-40) (AUMF) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) (FY2012 NDAA) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in an Article III court for any person who is lawfully in the United States when detained and who is otherwise entitled to the availability of such writ or such rights.

The Senate amendment contained a provision (sec. 1033) that would state that an authorization for the use of military force shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.

The Senate recedes with an amendment that would state that nothing in the AUMF or the FY 2012 NDAA shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.

The conferees note that Under Article 1, section 9 of the Constitution, habeas corpus rights “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Supreme Court has stated that Congress may not be presumed to have limited habeas corpus rights absent “an unmistakably clear statement” to that effect. (Hamdan v. Rumsfeld, 548 U.S. 557, 575 (2006); Boumedienne v. Bush, 553 U.S. 723, 738 (2008)).

The conferees note that no provision of the AUMF or the FY2012 NDAA addresses the availability of the writ of habeas corpus. On the contrary, section 1021(e) of the FY 2012 NDAA expressly states: “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” Further, the conferees acknowledge that constitutional rights may not be restricted or denied by statute. Consequently, nothing in the AUMF or the FY 2012 NDAA restricts or denies existing habeas corpus rights or any other existing constitutional rights.


The FY2013 defense bill is a key mechanism by which Congress fulfills one of its Article I, Section 8 constitutional responsibilities to provide for the common defense.  Members of the Armed Services Committee scrutinized every aspect of the defense enterprise to find ways to accomplish this mission more effectively in today’s fiscal environment.

According to the Committee on Armed Services, this bill demonstrates the commitment of Chairman McKeon (R-CA) and members of the committee to:

  • Provide resources to meet the threats America faces;
  • Keep faith with America’s men and women in uniform;
  • Align our military posture in a dangerous world; and
  • Rebuild a force after a decade at war.

The FY 2013 National Defense Authorization Act reflects concern about America’s mounting debt, but also ensures that our Armed Forces have the resources they need to meet an increasingly dangerous world. It also recognizes that the military has absorbed 50% of deficit reduction efforts to date, though it comprises only less than 20% of the federal budget.

Both the President’s budget request and the House-passed budget authorized National Defense above the Budget Control Act; however, in crafting the House budget, the House was careful to identify other non-defense sources to accommodate the needed increase in national security accounts while reducing the overall funding below the BCA cap.

The FY13 NDAA provides our war fighters and their families with the care and support they need, deserve, and have earned; while ensuring that proposed drawdown plans do not cut to the heart of the Army and Marine Corps.

The NDAA ensures that America’s military is robust, flexible, and capable. The bill will provide our warfighters with the time, resources, and authorities they need to win the war in Afghanistan and continue to prosecute the wider War on Terror.

The bill restores and retains vital systems, platforms, and authorities needed to maintain America’s combat power after a decade of war while declining to take up Administration requests, such as two rounds of base closure, which could damage vital military infrastructure.  It also invests in capabilities necessary to meet the challenges of the future.


The Congressional Budget Office (CBO) estimated that the House-passed H.R. 4310 would authorize appropriations totaling $637 billion for fiscal year 2013; however, the conference agreement would only authorize $633.3 billion.

Because enacting the conference legislation would affect direct spending, pay-as-you-go procedures apply.  CBO estimates that, on net, those changes would decrease deficits by $422 million over the 2013-2017 period and by $52 million over the 2013-2022 period.