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Recommendation 24: Repeal, preserve, or maintain various DoD congressional 

reporting requirements.

Problem

For more than 40 years, Congress, DoD, oversight agencies, and external analysts have endorsed efforts 

to eliminate existing reporting requirements and restrain the growth of future requirements. 

Acquisition leaders have charged that reporting requirements distract offices from their primary 

missions. Researchers have argued complying with reporting requirements is costly. Oversight 

agencies indicate that reporting requirements frequently become duplicative. Congress itself has 

acknowledged that many reporting requirements become obsolete over time. Overall, the current 

system of defense acquisition reporting requirements lacks the needed coherence or consistency to 

achieve its policy aims. 

Despite widespread support for reporting requirement reform, remedies have repeatedly failed. The 

difficulty of measuring the costs and benefits of specific reporting requirements inhibits reform. So 

does the nature of the identified reports, which may address commendable aims when considered in 

isolation, but which create broader problems when considered as a whole because of the collective 

burden they create. 

Background

The difficulties for executive branch agencies that arise from congressional reporting requirements are 

unintended consequences of congressional oversight. Reporting requirements can provide crucial 

context for drafting legislation, inform congressional efforts to ensure agencies fulfill statutory 

directives, and assist Congress in monitoring internal functioning of the executive branch.

1Reporting 

requirements can also burden resources of the targeted agency and become duplicative or obsolete over 

time,

2 creating tension between congressional oversight and the executive focus on core agency 

missions. 

Balancing these necessary, but differing, aims has been the goal of a number of previous efforts to 

improve the reporting requirements framework. As early as 1978, GAO indicated the total number of 

recurring reports had increased from 377 to 759 between 1920 and 1970, yet acknowledged it was 

unable to provide Congress with “an accurate cost assessment for reports preparation” because agency 

cost data contained “wide variances in both dollars and staffing for very similar reports.”3 Unease 

regarding reporting requirements animated five distinct legislative efforts to modify and eliminate 

entire blocs of reports during the 1980s and 1990s, as well as a 1993 study from the Clinton 

Administration that castigated the reporting requirements system for imposing more than $100 million 

 

1 Ibid. 

2 GAO, Congressional Reports: OMB and Other Agency Reporting Requirements, August 1992, accessed August 4, 2017, 

http://www.gao.gov/assets/90/89386.pdf. Congressional Research Service, Reexamination of Agency Reporting Requirements: Annual 

Process Under the GPRA Modernization Act of 2010 (GPRAMA), May 29, 2013, accessed August 4, 2017, 

https://fas.org/sgp/crs/misc/R42490.pdf. 3 GAO, Statistics on Congressional Reporting Requirements, July 25, 1978, accessed August 4, 2017, 

https://www.gao.gov/assets/130/123963.pdf. 
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in annual costs in the service of reports that frequently “seem to have little intrinsic value.”4 Congress 

acted on four separate occasions in the 1990s and 2000s to alter the structural dynamics that had 

undermined previous reform initiatives.

5 Despite these efforts, the challenge posed by reporting 

requirements has persisted through the present day. 

DoD has been a central actor in the broader reporting requirements dilemma. The previously 

mentioned 1993 study from the Clinton Administration amassed data on reporting requirements for 

selected agencies and noted that DoD was obligated to submit more reports to Congress than any other 

federal agency, other than the presidency itself.

6 In 2003, DoD proposed to eliminate or modify 

183 DoD-specific congressional reporting requirements, but Congress largely rejected the proposal due 

to the department’s inability to “demonstrate that the costs of these reports were higher than the 

perceived benefits.” 7 As recently as 2013, an Office of Management and Budget (OMB) proposal to 

eliminate or modify hundreds of mandatory plans and reports across the executive branch featured 

more proposals regarding DoD requirements than any other government entity.

8

The defense-specific aspect of the reporting requirements problem induced Congress to pursue a 

defense-specific solution. Section 1080 of the FY 2016 NDAA declared that DoD must submit a list to 

Congress of all congressional reporting requirements imposed on the department by any NDAA as of 

April 1, 2015.

9 According to the statute, DoD’s obligation regarding each report included on the list 

would terminate 2 years after the enactment date.

10 Congress hoped to reduce the reporting burden on 

DoD in one sweeping action. In accordance with Section 1080, DoD submitted the list to Congress on 

March 10, 2016.

11 Subsequently, Congress modified the termination provision through Section 1061 of 

the FY 2017 NDAA, which delayed the termination date for a select group of the reports listed by DoD 

until December 31, 2021.

12 In doing so, Congress distinguished between reports that would be allowed 

to terminate according to the original timeline—concluding on November 25, 2017—and reports that 

would remain mandatory for another five years. On January 18, 2017, DoD submitted an updated list to 

 

4 White House Office of the Vice President, Streamlining Management Control – Part 2, September 1993, accessed August 7, 2017, 

https://clintonwhitehouse6.archives.gov/1994/06/1994-06-30-npr-report-on-streamlining-management-control-part-a.html. 

Congressional Research Service, Reexamination of Agency Reporting Requirements: Annual Process Under the GPRA Modernization Act of 

2010 (GPRAMA), May 29, 2013, accessed August 4, 2017, https://fas.org/sgp/crs/misc/R42490.pdf. Congress enacted legislation targeting 

groups of reporting requirements in 1980, 1982, 1986, 1995 and 1998. 

5 Congressional Research Service, Reexamination of Agency Reporting Requirements: Annual Process Under the GPRA Modernization Act 

of 2010 (GPRAMA), May 29, 2013, accessed August 4, 2017, https://fas.org/sgp/crs/misc/R42490.pdf. The laws were the Government 

Management Reform Act of 1994, the Federal Reports Elimination and Sunset Act of 1995, the Reports Consolidation Act of 2000, and the 

GPRA Modernization Act of 2010. 

6 White House Office of the Vice President, Streamlining Management Control – Part 2, September 1993, accessed August 7, 2017, 

https://clintonwhitehouse6.archives.gov/1994/06/1994-06-30-npr-report-on-streamlining-management-control-part-a.html. 7 RAND National Defense Research Institute, Measuring the Statutory and Regulatory Constraints on DoD Acquisition, 2006, accessed 

August 7, 2017, https://www.rand.org/content/dam/rand/pubs/technical_reports/2006/RAND_TR347.pdf. 8 Congressional Research Service, Reexamination of Agency Reporting Requirements: Annual Process Under the GPRA Modernization Act 

of 2010 (GPRAMA), May 29, 2013, accessed August 4, 2017, https://fas.org/sgp/crs/misc/R42490.pdf. 9 FY 2016 NDAA, Pub. L. No. 114-92, 129 Stat. 1000 (2015). 10 Ibid. 

11 Office of the Assistant Secretary of Defense for Legislative Affairs, Letter to Congress, FY17 NDAA (P.L. 114-328), section 1061(k) DoD 

Report, January 18, 2017. 12 FY 2017 NDAA, Pub. L. No. 114-328 (2015). Section 1061 also removed several reporting requirements from the termination schedule 

entirely, thereby preserving them indefinitely. 
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Congress that encompassed all of the reports still designated for termination in November 2017.

13

Those reports have now terminated. The reports extended for another 5 years by Section 1061 remain 

set to terminate in December 2021. 

Congress’s rationale for its latest effort to eliminate DoD reporting requirements is consistent with its 

longstanding views on the dangers of an excessive reporting burden. In the conference report for the

FY 2016 NDAA, the HASC and SASC agreed that “excessive reporting” placed a burden on DoD and 

needed to be balanced against “the importance and value of reports from the Department of Defense as 

a key enabler of effective oversight.”14

A broad consensus exists among defense stakeholders that the current level of reporting requirements 

hampers DoD’s ability to effectively direct resources to core objectives. Despite the consensus, 

however, the problem has proven resistant to easy solutions. The fundamental reason for its 

persistence is the tension between the legitimate needs of congressional oversight and the desires of 

defense agencies to focus on their primary mission functions. Even taking these factors into account, 

credible attempts to improve the situation have been stymied by a more parochial issue: a lack of 

convincing case-by-case arguments for the elimination of reporting requirements. As discussed above, 

federal agencies have long struggled to calculate the costs of reporting requirements in a broadly 

applicable manner. 

In the absence of such cost estimates, the next step must be to analyze the merits of individual 

reporting requirements to justify their elimination or modification. It is in this regard that many 

previous efforts have fallen short. The Clinton Administration’s 1993 study concluded that “an 

essential factor in the elimination of reports has been the provision of convincing reasons.”15 The study 

cited a failed 1986 congressional effort to reduce reporting requirements, for which Congress 

“eliminated 71 percent of the reports whose elimination agencies had adequately justified” but only 

eliminated 10 percent of the reports “when agencies did not provide adequate justification.”16 Due to 

the lack of adequate justification for most reporting requirements, only 23 reports were eliminated out 

of a total of 240 recommendations; a subsequent GAO report blamed “inadequate justification of 

reports proposed for elimination” as a factor in the broader failure of the effort.

17 In 2003, DoD’s 

proposed elimination of reporting requirements was similarly undermined by its inability to convince 

Congress on the merits of the reports at issue.18

The success of reporting requirements reform efforts hinges on the quality of the analysis. The 

Section 809 Panel focused its analysis on reports that affect the defense acquisition system, using the 

ongoing congressional effort under Section 1080 of the FY 2016 NDAA and Section 1061 of the FY 2017 

 

13 Office of the Assistant Secretary of Defense for Legislative Affairs, Letter to Congress, FY17 NDAA (P.L. 114-328), section 1061(k) DoD 

Report, January 18, 2017. 14 FY 2016 NDAA, Pub. L. No. 114-92, Joint Explanatory Statement of the Committee of Conference, 

https://www.gpo.gov/fdsys/pkg/CPRT-114JPRT97637/pdf/CPRT-114JPRT97637.pdf. 15 White House Office of the Vice President, Streamlining Management Control – Part 2, September 1993, accessed August 7, 2017, 

https://clintonwhitehouse6.archives.gov/1994/06/1994-06-30-npr-report-on-streamlining-management-control-part-a.html. 16 Ibid. 17 Ibid. 

18 RAND National Defense Research Institute, Measuring the Statutory and Regulatory Constraints on DoD Acquisition, 2006, accessed 

August 7, 2017, https://www.rand.org/content/dam/rand/pubs/technical_reports/2006/RAND_TR347.pdf. 
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NDAA as a starting point. The panel determined which reports should be categorized as defense 

acquisition reports and performed a case-by-case analysis of existing acquisition reporting requirements 

to improve the short-term reporting environment. 

Case-by-Case Reporting Requirements

Twenty-nine reporting requirements related to defense acquisition (See Table 8-1 below) terminated on 

or before November 25, 2017, as a result of congressional actions in the FY 2016 and FY 2017 NDAAs. 

Because these reports were due to sunset before publication of this report, the Section 809 Panel did not 

consider them in its analysis, but it does support the congressional action to terminate them. 

Table 8-1. Reporting Requirement Set to Sunset by November 25, 2017

U.S.C. Title or Statute Summary Frequency

10 U.S.C. § 235 Procurement of Contract Services: Specification of Amounts 

Requested in Budget Annual

10 U.S.C. § 1705(f) Department of Defense Acquisition Workforce Development Fund Annual

10 U.S.C. § 1722b(c) Career Development for Civilian and Military Personnel in the 

Acquisition Workforce Biennial

10 U.S.C. § 2537(b) Improved National Defense Control of Technology Diversions 

Overseas Annual

10 U.S.C. § 2306b(l)(4) Reporting Requirements Relating to Multiyear Contracts – Annual 

Report Annual

10 U.S.C. § 2330a(c) Inventories and Reviews of Contracts for Services Annual

10 U.S.C. § 2410i(c), second 

sentence

Prohibition on Contracting with Entities that Comply with the 

Secondary Arab Boycott of Israel – Waiver Authority Annual

10 U.S.C. § 2445b Cost, Schedule, and Performance Information of Major Automated 

Information System Programs Annual

10 U.S.C. § 2506(b) DoD Technology and Industrial Base Policy Guidance Annual

10 U.S.C. § 2861(d) Authority to Carry out Military Construction Projects in Connection 

with Industrial Facility Investment Program Annual

10 U.S.C. § 2866(b)(3) Use of Financial Incentives and Water Cost Savings Annual

10 U.S.C. §2912(d) Availability and Use of Energy Cost Savings Annual

Pub. L. No. 101-189; 103 Stat. 

1394 211(e) (FY 1990-1991 NDAA) Balanced Technology Initiative Program Annual

Pub. L. No. 107-107 346(b) (115 

Stat. 1062) (FY 2002 NDAA)

Development of Army Workload and Performance System and 

Wholesale Logistics Modernization Program Annual

10 U.S.C. § 817(d) (2306 note) 

(FY 2003 NDAA)

Grants of Exceptions to Costs or Pricing Data Certification 

Requirements and Waivers of Cost Accounting Standards Annual

Pub. L. No. 109-163 123(d)(1) 

(119 Stat. 3157 (FY 2006 NDAA) Cost Limitation for Next-General Destroyer Program Annual

Pub. L. No. 109-163 218(c)(3) 

(119 Stat. 3172) (FY 2006 NDAA)

Requirements for Development of Tactical Radio Communications 

Systems Annual

Pub. L. No. 110-181 328(b)(1) 

(10 U.S.C. § 4544 note) (FY 2008 

NDAA)

Extension of Authority for Army Industrial Facilities to Engage in

Cooperative Activities with Non-Army Entities Annual

Pub. L. No. 110-181 330(e) 

(122 Stat. 68) (FY 2008 NDAA)

Pilot Program for Availability of Working-Capital Funds for Certain 

Product Improvements Annual

Pub. L. No. 110-181 845 (5 U.S.C. 

App. 5 note) (FY 2008 NDAA) Disclosure of Government Contractor Audit Findings SemiAnnual

Pub. L. No. 111-84 121(e) (123 

Stat. 2212) (FY 2010 NDAA) Littoral Combat Ship Procurement Annual
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U.S.C. Title or Statute Summary Frequency

Pub. L. No. 111-383 243(c) 

(10 U.S.C. § 2358 note) (FY 2011 

NDAA)

Pilot Program to Include Technology Protection Features During 

Research and Development of Defense Systems Annual

Pub. L. No. 111-383 866(d)(1) 

(10 U.S.C. § 2302 note) (FY 2011 

NDAA)

Pilot Program on Acquisition of Military Purpose Non-Developmental 

Items Annual

Pub. L. No. 112-239) 126(b) 

(126 Stat. 1657) (FY 2013 NDAA)

Designation of Mission Modules of the Littoral Combat Ship as a 

Major Defense Acquisition Program Quarterly

Pub. L. No. 112-239) 144(c) 

(126 Stat. 1663) (FY 2013 NDAA)

Treatment of Certain Programs for the F-22A Raptor Aircraft as Major 

Defense Acquisition Program Annual

Pub. L. No. 112-239 865 (126 Stat. 

1861) (FY 2013 NDAA) Reports on Use Indemnification Agreements Annual

Pub. L. No. 112-239 1276(e) 

(10 U.S.C. § 2350c note) (FY 2013 

NDAA)

DoD Participation on Multilateral Exchange of Air Transportation and 

Air Refueling Services (ATARES) Annual

Pub. L. No. 113-66 1611(d) 

(127 Stat. 947) (FY 2014 NDAA) Advancing Small Business Growth Annual

Pub. L. No. 113-291 232(e) 

(10 U.S.C. § 2358 note) (FY 2015 

NDAA)

Pilot Program on Assignment to Defense Advanced Research Projects 

Agency of Private Sector Personnel with Critical Research and 

Development Expertise

Annual

Also as a result of congressional actions in the FY 2016 and FY 2017 NDAAs, there are currently 

28 reporting requirements related to defense acquisition that are set to terminate on December 31, 2021. 

The Section 809 Panel conducted assessments of each report to inform its recommendations, which are 

included below. Although the Section 809 Panel recommends eliminating the majority of the reporting 

requirements, it also recommends maintaining some on a short-term basis for further examination and 

preserving others in a manner consistent with Recommendation 23 of this report. 
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THE FOLLOWING STATUTORY REPORTING REQUIREMENTS SHOULD BE REPEALED.

Subrecommendation 24a: Repeal the statutory requirement for the Defense Test Resource 

Management Center biennial strategic and budget reports, 10 U.S.C. § 196(d) and (e).

Background

Congress established the reporting requirements for defense test and evaluation facilities and resources 

in 10 U.S.C. § 196(d) and (e). The FY 2003 NDAA added 10 U.S.C. § 196, which created the Test 

Resource Management Center (TRMC) and established its requirements.19 Section 196(d)(3) requires the 

director of the center to submit a report to the Secretary of Defense that includes a strategic plan for test 

and evaluation facilities and resources, as well as a description of the review on which the plan is 

based.20 The director of the center must develop the strategic plan by coordinating with the Director of 

Operational Test and Evaluation (DOT&E), secretaries of the Military Services, and heads of Defense 

Agencies with test and evaluation responsibilities.21 The strategic plan must cover 10 fiscal years, and it 

must be submitted at least once every 2 years. The review on which the plan is based must assess the 

adequacy of the test and evaluation facilities and resources to meet the Department’s test and 

evaluation requirements.22 Section 196(d)(4) requires that, within 60 days of receiving the report, the 

Secretary must transmit the report to Congress.23 Additionally, Section 196(e)(2) requires the director of 

the center to submit a report to the Secretary on the proposed budgets for test and evaluation facilities 

and resources, along with certifications as to whether the proposed budgets are adequate and provide 

support for the strategic plan.24 Section 196(e)(3) requires the Secretary to submit a report to Congress 

that addresses any proposed budgets that the director did not certify as adequate. The deadlines for the 

budget reports from DOT&E and the Secretary are, respectively, January 31 and March 31 of the 

preceding fiscal year.25 

Findings

The reporting requirements at 10 U.S.C. § 196(d) and (e) were implemented to promote a long-term, 

strategic planning process for test and evaluation facilities and resources, and to provide Congress with 

better oversight of the process. The primary function of TRMC is to oversee funding and maintenance 

for the test ranges that constitute DoD’s Major Range and Test Facility Base (MRTFB).26 The strategic 

plan and budget reports analyze how well the budgeted resources meet DoD’s stated objectives 

regarding MRTFB. The Military Services responded to the creation of the TRMC and corresponding 

budgetary mandates by increasing their range operating budgets, which climbed by more than 

50 percent in FY 2006 and remained at heightened levels through at least FY 2011.27 TRMC reporting 

requirements overlap substantially with DOT&E’s annual report at 10 U.S.C. §139(h), which calls on 

DOT&E to detail “resources and facilities available for operational test and evaluation and levels of 

 

19 FY 2003 NDAA, Pub. L. No. 107-314, 116 Stat. 2487 (2002). 20 Ibid. 

21 Ibid. 

22 Ibid. 

23 Ibid. 

24 Ibid. 

25 Ibid. 26 GAO, Weapons Acquisition Reform: Actions Needed to Address Systems Engineering and Developmental Testing Challenges, September 

2011, accessed July 13, 2017, http://www.gao.gov/assets/330/323377.pdf. 27 Ibid. 
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funding made available for operational test and evaluation activities.”28 Because TRMC and DOT&E 

are required to coordinate their findings in these areas, the report at 10 U.S.C. § 139(h) is sufficient to 

disclose the necessary information to Congress without any redundancy. 

Conclusions

TRMC reporting requirements at 10 U.S.C. § 196(d) and (e) are redundant to a larger and more 

influential report at 10 U.S.C. § 139(h). TRMC is required to work with DOT&E on the relevant 

findings, and DOT&E discloses its own findings separately to Congress. This arrangement is 

unnecessary and duplicative. Congressional oversight of test and evaluation facilities and resources 

would be better served by ensuring both offices coordinate properly on the findings contained within 

DOT&E’s annual report. Congress repeal this reporting requirement.

The Test Resource Management Center dissented from the Section 809 Panel’s 

recommendation. TRMC argued that although a ‘slight overlap’ existed between the 

DOT&E report at 10 U.S.C. § 139(h) and the TRMC reports at 10 U.S.C. § 196(d) and (e), 

the TRMC reports possessed a “broader focus” that was crucial to ensuring adequate 

resources for DoD’s testing infrastructure.29 After receiving this comment, the 

Section 809 Panel opted not to alter its recommendation, taking the position that the 

reports at 10 U.S.C. § 196(d) and (e) do not offer enough value on their own to justify 

their continuation, in light of the existence of the DOT&E report.

Subrecommendation 24b: Repeal the statutory requirement for the Ballistic Missile Defense 

Programs annual budget justification reports, 10 U.S.C. § 223a(a).

Background

10 U.S.C. § 223a(a) establishes a reporting requirement for DoD’s early-stage ballistic missile 

procurement process. The reporting requirement was initially imposed in the FY 2004 NDAA, which 

created 10 U.S.C, § 223a.

30 The original statutory language of Section 223a included paragraph (a), 

directing the Secretary to report to Congress regarding three distinct procurement elements of DoD’s

ballistic missile defense system programs: (a) the “production rate capabilities” of all intended 

production facilities in a ballistic missile defense program; (b) the “potential date of availability” for the 

initial fielding of each element in a ballistic missile defense program; and (c) the “estimated date on 

which the administration of the acquisition of that element [of a ballistic missile defense program] is to 

be transferred” from the Missile Defense Agency (MDA) to a military department.31 The requirements 

applied to “each ballistic missile defense system element” under the authority of MDA, and they were 

specifically targeted at the early stages of a ballistic missile program, when the agency was still 

“engaged in planning for production and initial fielding.”32 The statute required the Sec Def to submit 

the information to Congress on an annual basis, as a part of the DoD’s budget justification materials 

that accompany DoD’s proposed annual budget.33 There have been no subsequent amendments to the 

 

28 Director of Operational Test and Evaluation, 10 U.S.C. § 139. 29 Test Resource Management Center, email to Section 809 Panel staff, November 13, 2017. 30 FY 2004 NDAA, Pub. L. No. 108-136, 117 Stat. 1420 (2003). 31 Ibid. 

32 Ibid. 

33 Ibid. 
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report requirement, and 10 U.S.C. § 223a(a) remains unchanged from the original statute.34 As such, the 

report is still required annually. 

Findings

In January 2002, Secretary of Defense Donald Rumsfeld issued a memorandum that exempted DoD’s 

missile defense programs from the reporting requirements for major defense acquisition programs

(MDAPs).

35 In May 2002, DoD broadened the scope of classification regarding missile defense 

programs, rendering previously public information such as developmental test details newly 

classified.36 The classification decision sparked criticism from members of Congress and congressional 

staffers, who charged that the Bush Administration was inhibiting the ability of the House and Senate 

Armed Service Committees to fulfill their proper roles overseeing the ballistic missile defense 

program.37 In response, Congress passed 10 U.S.C. § 223a(a) in the FY 2004 NDAA, compelling DoD to 

provide budget justification materials to Congress regarding early-stage procurement targets and 

projections.38 More than 13 years later, the broad case for congressional oversight still exists due to 

continuing flaws in early-stage ballistic missile planning; a May 2015 GAO report concluded that 

several ballistic missile defense programs were “pursuing high-risk approaches” that failed to adhere 

to best practices and risked “cost growth and schedule delays” in acquisition outcomes. The specific 

report at 10 U.S.C. § 223a(a)—created due to discrete political circumstances—is not unique in pursuing 

that goal, and overlaps with several other reports promoting the same end. The redundant nature of 

the reports suggests that streamlining can occur without a loss in oversight. 

Conclusions

Transparency in early-stage ballistic missile procurement is an important element of proper oversight, 

yet the information contained within the reporting requirement at 10 U.S.C. § 223a(a) overlaps with 

other ballistic missile reporting requirements, notably the report in 10 U.S.C. § 225(c) and sections 232 

and 1662 of the FY 2002 NDAA and FY 2015 NDAA, respectively. All of these reports focus on earlystage developments within ballistic missile programs. Moreover, the report at 10 U.S.C. § 223a(a) 

justifies budgetary requests, which already contain information relating to relevant programs. The 

report is redundant and does not offer enough value on its own to justify its continuation. 

The Missile Defense Agency concurred with the Section 809 Panel’s recommendation.39 

 

34 Ballistic Missile Defense Programs: Procurement, 10 U.S.C. § 223a. 35 Congressional Research Service, Missile Defense: The Current Debate, July 19, 2005, accessed June 1, 2017, 

https://fas.org/sgp/crs/weapons/RL31111.pdf. 36 Ibid. 

37 David Ruppe, “Bush Administration Thwarting Scrutiny of Missile Defense, Hill Critics Say,” Global Security Newswire, January 7, 2004, 

http://www.nti.org/gsn/article/bush-administration-thwarting-scrutiny-of-missile-defense-hill-critics-say/. 38 Ibid. 

39 Missile Defense Agency, phone call with Section 809 Panel staff, November 29, 2017. 
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Subrecommendation 24c: Repeal the statutory requirement for the Programs for Combating

Terrorism: Annual budget overview report, 10 U.S.C. § 229.

Background

Congress established the reporting requirement at 10 U.S.C. § 229 to more accurately assess the total 

cost of combating terrorism, which was defined by DoD in 1994 as encompassing “actions, including 

AT [antiterrorism] and CT [counterterrorism], taken to oppose terrorism through the entire threat 

spectrum.”40 10 U.S.C. § 229 establishes a requirement for the Secretary to submit a consolidated budget 

justification display that includes “all programs and activities of the Department of Defense combating 

terrorism program.” The report is intended to support the President’s annual budget for DoD and must 

be submitted in classified and unclassified form. The FY 2000 NDAA added 10 U.S.C. § 229, and the 

reporting requirements largely existed in their current form in the original provision.41 Congress 

mandated that the report include the amount requested for each program element, project, and 

initiative to support the combating terrorism program, as well as a rationale for each funding level 

request.42 The report must also provide a summary of estimated expenditures for the current year, the 

budget year, and through the completion of the current 5-year defense plan for the combating terrorism 

program.43 The only substantive amendment to section 229 occurred in the FY 2016 NDAA, when 

previously required semiannual reports on the combating terrorism program were eliminated.44 In all 

other respects, the reporting requirement as it currently stands in section 229 has existed since the

FY 2000 NDAA.45

Findings

In 1997, GAO reported that federal funding for combating terrorism was “unknown and difficult to 

determine,” and recommended a review of cost data reports on an annual basis.46 Since the 

requirement was enacted, GAO has issued multiple reports regarding the continuing weakness of 

federal funding data for combating terrorism. In 2002, GAO reported there were several difficulties in 

collecting and analyzing the data due to the various types of missions involved (e.g., intelligence, law 

enforcement) and the fact that funds for combating terrorism were often embedded in appropriation 

accounts that include other activities.47 In 2006, GAO specifically addressed DoD funding data for the 

War on Terror, determining the data to be unreliable.48 GAO has recommended that the Secretary take 

steps to ensure the reported costs for combating terrorism are reliable and to establish a methodology 

to determine how funding is apportioned for the War on Terror, but it is unclear whether DoD has 

achieved any improvements. The report includes data based on a distinction among antiterrorism,

counterterrorism, and combatting terrorism that was conceived before the terrorist attacks of September 

 

40 DoD Combatting Terrorism Program Procedures, DoDI 2000.14 (1994). 41 FY 2000 NDAA, Pub. L. No. 106-65, 113 Stat. 727 (1999). 42 Ibid. 

43 Ibid. 

44 FY 2016 NDAA, Pub. L. No. 114-92, 129 Stat. 977 (2015). 45 Programs for Combating Terrorism: Display of Budget Information, 10 U.S.C. §229. 46 GAO, Combating Terrorism: Spending on Government wide Programs Requires Better Management and Coordination, December 1997, 

accessed July 25, 2017, http://www.gao.gov/assets/230/224961.pdf. 47 GAO, Combating Terrorism: Funding Data Reported to Congress Should Be Improved, November 2002, accessed July 25, 2017, 

http://www.gao.gov/assets/80/79348.pdf. 48 GAO, Global War on Terrorism: DoD Needs to Improve the Reliability of Cost Data and Provide Additional Guidance to Control Costs, 

September 2005, accessed July 25, 2017, http://www.gao.gov/new.items/d05882.pdf. 
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11, 2001, which could explain why DoD has struggled to generate the specific data called for by the 

report. The report may reflect an outdated, pre-9/11 perspective. 

Conclusions

The combating terrorism reporting requirement at 10 U.S.C. § 229 appears to be an obsolete inheritance 

from a pre-9/11 approach to terrorism. Congress created the report to provide better insight into the 

total cost of DoD’s combatting terrorism program, but the structure of that program has undermined 

the report’s ability to facilitate improved congressional oversight of DoD’s response to the terrorist 

threat. The report predates the War on Terror and the vast transformation in DoD policy that has 

occurred since 2001. The report’s outdated approach has made it difficult for DoD to properly comply. 

In recognition of these facts, Congress acted in the FY 2016 NDAA to repeal related semiannual reports 

on the combatting terrorism program. That decision is merited, and further action to repeal the annual 

report as well should take place. For the reasons stated above, the Section 809 Panel recommends that 

Congress repeal this reporting requirement. 

The Section 809 Panel did not receive comments from DoD regarding this 

recommendation. 

Subrecommendation 24d: Repeal the statutory requirement for the Annual Long-Term Plan 

for the Procurement of Aircraft for the Navy and the Air annual strategic plan, 10 U.S.C.

§ 231a.

Background

10 U.S.C. § 231a establishes a reporting requirement for long-term aircraft procurement in support of 

U.S. strategic planning. The reporting requirement was initially imposed in the FY 2009 NDAA, which 

created Title 10 U.S.C. § 10 231a.49 The original statutory language of section 231a directed the Secretary

to submit an annual report to Congress regarding the integration of long-term aircraft procurement for 

the Navy and the Air Force into the broader strategic outline of U.S. defense policy.50 The statute 

required the report, titled Annual Aircraft Procurement Plan, to describe “a plan for the procurement of 

the aircraft specified in subsection (b) for the Department of the Navy and the Department of the Air 

Force” to a 30-year time horizon.51 The report would contain a detailed procurement program, as well 

as projected funding levels and an assessment of whether the “combined aircraft forces” of the Navy 

and the Air Force satisfied America’s national security requirements.52 The report was also statutorily 

obligated to support the framework outlined by the official National Security Strategy Report or the 

Quadrennial Defense Review.

53 If DoD concluded that the budget for a given fiscal year failed to provide 

the necessary funding to maintain aircraft procurement in accordance with the report, the statute 

further required that the report must specify “the risks associated with the reduced force structure of 

aircraft that will result from funding aircraft procurement at such level.”54 Subsequent amendments 

have expanded the scope of the Annual Aircraft Procurement Plan by broadening its analysis to include 

 

49 FY 2009 NDAA, Pub. L. No. 110-417, 122 Stat. 4379 (2008). 50 Ibid. 

51 Ibid. 52 Ibid. 

53 Ibid. 

54 Ibid. 
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Army aircraft and mandating detailed explanations and justifications for the cost estimates provided.55

The original components of the plan remain in statutory effect.

Findings

Congress modeled the aircraft procurement reporting requirement at 10 U.S.C. § 231a upon the 

preexisting 30-year naval construction report at 10 U.S.C. § 231. The reports were formulated with 

nearly identical statutory language. The Annual Aircraft Procurement Plan was intended to inform 

Congress regarding the “cumulative long-term effects of annual appropriation decisions,” expose any 

shortfalls between long-term aircraft objectives and short-term budgets, and compel DoD to articulate 

its guiding assumptions about the evolution of America’s airpower capabilities.56 Nearly from the very 

beginning, however, the 30-year aircraft procurement reports have struggled to achieve consistency 

due to the structural unpredictability of the aerospace industry. The first two reports, submitted by 

DoD alongside the FY 2011 and FY 2012 budget requests, provided only 10 years of programmatic 

detail due to “long-term uncertainties in requirements and technology.”57 A 2011 CBO analysis 

concluded that the reports would be more informative for Congress if DoD provided a greater level of 

detail concerning “the expected inventory of each type of aircraft over the span covered,” as well as the 

underlying assumptions for each type of aircraft. DoD experienced difficulty in attempting to 

rationalize that information.58 DoD neglected to submit a report altogether in the FY 2015 budget cycle, 

and recent reports have failed to clarify the impact of the sequestration caps established by the Budget 

Control Act of 2011 on the department’s projected aircraft procurement.59 DoD’s ability to implement 

the reporting requirement has been undermined by aerospace structural factors, such as the likelihood 

of rapid technological shifts and the unpredictable evolution of the department’s requirements. These 

inherent forces within the aerospace sector have proven difficult to adapt to an annual report. 

Conclusions

The long-term aircraft procurement reporting requirement at 10 U.S.C. § 231a is modeled on a similar 

report for naval vessels at 10 U.S.C. § 231. The naval vessel report has proven to be an asset for both 

DoD and Congress; the aircraft procurement report has not experienced similar success. The differing 

structural realities of the naval vessel and aircraft procurement sectors have affected the utility of the 

respective reports, and the aircraft procurement report has been troubled from the start. Rapid shifts 

and enduring volatility in the aerospace sector render it ill-suited for consistent projections on such a 

long time horizon. DoD has struggled to comply with the reporting mandate, failing to achieve its 

objectives in multiple reports and failing to submit a report altogether in FY 2015. The goal of the report 

is admirable, but the nature of the underlying information appears to render it impracticable. 

The Section 809 Panel did not receive comments from DoD regarding this 

recommendation. 

 

55 Budgeting for Life-Cycle Cost of Aircraft for the Navy, Army, and Air Force: Annual Plan and Certification, 10 U.S.C. § 231a. 56 Congressional Budget Office, The Value of 30-Year Defense Procurement Plans for Congressional Oversight and Decisionmaking, 

June 1, 2011, accessed June 12, 2017, https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/06-01-

dodtestimony.pdf. 57 Ibid. 58 Ibid. 

59 Mackenzie Eaglen, “Pentagon’s Aviation Plan Headed for a Dead Stick Landing,” American Enterprise Institute, May 31, 2015, accessed 

June 12, 2017, https://www.aei.org/publication/pentagon-aviation-report-dead-stick-landing/. 
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Subrecommendation 24e: Repeal the statutory requirement for the Cyber Mission Forces 

annual budget overview report, 10 U.S.C. § 238(a).

Background

10 U.S.C. § 238(a) establishes a reporting requirement for the Secretary to submit a budget justification 

display that includes “a major force program category for the five-year defense plan of the Department 

of Defense for the training, manning, and equipping of the cyber mission forces.”60 The reports are also 

obligated to detail the program elements for cyber mission forces.61 The FY 2015 NDAA added 

10 U.S.C. § 238 to better account for cyber mission forces.62 The provision required the Secretary to 

submit the first budget justification report to Congress starting with the budget materials for FY 2017, 

and to submit reports thereafter for each fiscal year.63 The reporting requirement at section 238(a) has 

not been amended since the FY 2015 NDAA.64

Findings

The DoD 2015 Cyber Strategy outlined five strategic goals for its cyber operations, including to “build 

and maintain ready forces and capabilities to conduct cyberspace operations.”65 The preparation 

process for the FY 2017 defense budget request included determining and outlining the costs for the 

Cyber Mission Force, which comprises 133 teams, to ensure that it would be fully operational by the 

end of FY 2018.66 Because the reporting requirement was implemented for the first time in FY 2017, 

little analysis has been conducted of the report itself.

Conclusions

Congress created the cyber mission forces reporting requirement at 10 U.S.C. § 238(a) in the FY 2015 

NDAA. The report is intended to promote congressional oversight of DoD’s Cyber Mission Force, 

which is not scheduled to be fully operational until the end of FY 2018. Because the report has only 

been in effect for 1 fiscal year, it is difficult to evaluate its relative merits; however, it appears the goals 

of the Cyber Mission Force would be better served by withdrawing the report until DoD has had the 

necessary time to implement its cyber strategy. After DoD has initiated the program, Congress could 

determine whether the burden of a reporting requirement is justified. But it is unclear if the report is 

necessary at the present time, and therefore difficult to validate its costs. 

The Office of the USD(AT&L) dissented from the Section 809 Panel’s recommendation. 

DoD argued that due to the challenging nature of the current budgetary environment, 

the report served a useful purpose by providing an opportunity to tell Congress “a clear 

and unambiguous story regarding how much we are spending to man, train and equip 

the CMF.”67 The panel opted not to alter its recommendation. A reporting requirement is 

 

60 FY 2015 NDAA, Pub. L. No. 113-291, 128 Stat. 3638 (2014). 61 Ibid. 

62 Ibid. 

63 Ibid. 

64 Cyber Mission Forces: Program Elements, 10 U.S.C. § 238. 65 DoD, DoD Cyber Strategy, April 2015, accessed July 25, 2017, https://www.defense.gov/Portals/1/features/2015/0415_cyberstrategy/Final_2015_DoD_CYBER_STRATEGY_for_web.pdf 66 Under Secretary of Defense (Comptroller)/Chief Financial Officer, FY 2017 Defense Budget Overview, January 2019, accessed July 25, 

2017, http://comptroller.defense.gov/Portals/45/Documents/defbudget/fy2017/FY2017_Budget_Request_Overview_Book.pdf 67 Office of the Under Secretary of Defense for AT&L, ASD(A), email to Section 809 Panel staff, November 8, 2017. 
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an unwieldy instrument for congressional outreach, the report is not necessary to build 

congressional support for the CMF, and other avenues are available to encourage 

support for the CMF without the corresponding costs of the report. 

Subrecommendation 24f: Repeal the statutory requirement for the Corrosion Control and 

Prevention annual budget and policy report, 10 U.S.C. § 2228(e).

Background

10 U.S.C. § 2228(e) establishes a reporting requirement for implementing DoD’s long-term strategy to 

reduce corrosion in military equipment and infrastructure. The reporting requirement was initially 

imposed in the FY 2008 NDAA, which added a new paragraph (e) to the existing Section 2228 that 

governed DoD’s Office of Corrosion Policy and Oversight.68 Congress had previously empowered the 

office to “oversee and coordinate efforts throughout the Department of Defense to prevent and mitigate 

corrosion of the military equipment and infrastructure of the Department” through the development of 

anticorrosion policies and programs.69 The office also possessed responsibility for monitoring DoD 

acquisition practices to ensure that corrosion prevention technologies were properly integrated into the 

acquisition process, and for developing a long-term strategy to mitigate the effect of corrosion across 

the department.70 The FY 2008 NDAA required the Secretary to disclose the funding requirements and 

an estimated return on investment (ROI) for the implementation of the office’s long-term anticorrosion 

strategy, as well as provide a comparison with the actual funds requested in DoD’s annual budget and 

a justification for any shortfall between required and requested funds.71 It also required the 

Comptroller General to submit a second report to Congress that assessed DoD’s budget submission for 

anticorrosion policy, as well as the department’s own anticorrosion report.72 Congress subsequently 

altered the reporting requirement to encompass a greater level of detail and replaced the Comptroller 

General’s role with a different requirement that the “corrosion control and prevention executive of a 

military department” submit annual reports to the Director of Corrosion Policy and Oversight that 

provided “recommendations pertaining to the corrosion control and prevention program of the 

military department.”73 The most recent change occurred in the FY 2017 NDAA, in which Congress 

amended the provision to establish an end date for the reporting requirement upon the submission of 

the FY 2022 budget.74

Findings

The reporting requirement at 10 U.S.C. § 2228(e) arose due to the severity of the corrosion problem 

confronting the Defense Department. Corrosion costs DoD tens of billions of dollars annually; in 2010, 

the department estimated that the annual cost of equipment and infrastructure corrosion was 

$22.9 billion.75 The Office of Corrosion Policy and Oversight was created to develop policies that would 

reduce corrosion and coordinate the implementation of those policies throughout DoD. A 2013 GAO 

 

68 FY 2008 NDAA, Pub. L. No. 110-181, 122 Stat. 79 (2008). 69 Office of Corrosion Policy and Oversight, 10 U.S.C. § 2228. 70 Ibid. 

71 FY 2008 NDAA, Pub. L. No. 110-181, 122 Stat. 79 (2008). 72 Ibid. 

73 Office of Corrosion Policy and Oversight, 10 U.S.C. § 2228. 74 FY 2017 NDAA, Pub. L. No. 114-328, 130 Stat. 2376 (2016). 75 GAO, Defense Management: The Department of Defense’s Fiscal Year 2012 Corrosion Prevention and Control Budget Request, April 13, 

2011, accessed July 14, 2017, http://www.gao.gov/assets/100/97425.pdf. 
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report concluded that DoD’s anticorrosion efforts were inadequate, both in terms of the quality of the 

annual reports and the department’s ability to implement the recommendations of the reports.76 For 

example, GAO stated that the military departments “did not always collect required information” 

regarding ROI for corrosion projects, and that they were “unable to determine whether projects had 

achieved their estimated ROI” as a result.77 DoD’s own internal estimates indicated that the annual cost 

of corrosion remained essentially unchanged 7 years after the office was created, totaling $23.4 billion 

annually through FY 2013.78 The inadequate quality of the reports posed an obstacle to congressional 

oversight. Due to these shortcomings, it appears congressional support for the Office of Corrosion 

Policy and Oversight itself is declining. In its version of the FY 2018 NDAA, the House of 

Representatives voted to repeal 10 U.S.C. § 2228 and eliminate the USD(AT&L) office entirely, but 

require the Military Services to oversee their own anti-corrosion policy efforts.

79 The final version of the 

NDAA preserved the office but mandated a one-time report from the Secretary to evaluate “the 

continued need for the Office of Corrosion Policy and Oversight,” as well as to recommend “whether to 

retain or terminate the Office.”80 The provision sends a clear signal regarding congressional 

unhappiness with DoD’s current anticorrosion framework. Congress’s decision to set a separate 

termination date for the reporting requirement in conjunction with the submission of the FY 2022 

budget suggests that Congress views the current report at 10 U.S.C. § 2228(e) with similar skepticism.81

Conclusions

In its recent actions, Congress has already signaled that the corrosion control reporting requirement at 

10 U.S.C. § 2228(e) is likely to be eliminated over the next several years. In the FY 2017 NDAA, 

Congress specifically voted to establish an end date for the report alongside the FY 2022 budget. In the

FY 2018 NDAA, Congress expressed skepticism about the very existence of the Office of Corrosion 

Policy and Oversight. The report does not appear to have assisted in mitigating the problem of 

corrosion within DoD, as the costs of corrosion have remained largely unchanged since its creation. 

The Office of Corrosion Policy and Oversight dissented from the Section 809 Panel’s 

recommendation. The office defended the report’s value in providing Congress with “an 

accounting of corrosion prevention and mitigation,” while highlighting DoD’s 

“corrosion cost avoidance.”82 After receiving this comment, the panel opted not to alter 

its recommendation because the comment did not directly address the concerns raised 

by the panel’s analysis.

 

76 GAO, Defense Management: DOD Should Enhance Oversight of Equipment-Related Corrosion Projects, September 2013, accessed 

July 14, 2017, http://www.gao.gov/assets/660/657498.pdf. 77 Ibid. 

78 Joint Technology Exchange Group, Topic: Corrosion Prevention and Repair, March 30, 2015, accessed July 14, 2017, 

http://jteg.ncms.org/wp-content/gallery/20150330_Corrosion/JTEG%20Corrosion%20Forum%20%28Combined%29%20pdf.pdf. 79 National Defense Authorization Act for Fiscal Year 2018, House of Representatives, H.R. 2810, Sections 902 and 903 (2017), 

https://www.congress.gov/congressional-report/115th-congress/house-report/404/1?overview=closed. 80 FY 2018 NDAA, Pub. L. No. 115-91 (2017) 81 FY 2017 NDAA, Pub. L. No. 114-328, 130 Stat. 2376 (2016). 82 Office of Corrosion Policy and Oversight, email to Section 809 Panel staff, November 11, 2017. 
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Subrecommendation 24g: Repeal the statutory requirement for the Major Satellite 

Acquisition Programs annual integration report, 10 U.S.C. § 2275.

Background

10 U.S.C. § 2275 establishes a reporting requirement for the integration of acquisition and delivery 

schedules within major satellite acquisition programs (MSAP). The reporting requirement was initially 

imposed in the FY 2013 NDAA, which created a new section 2275 of Title 10.83 The original statutory 

language of section 2275 directed the USD(AT&L) to submit reports to Congress disclosing the total 

funding for all MSAPs, as well as the extent to which the schedules for the acquisition and delivery of 

capabilities had been integrated for each program.84 The statute compelled a unique report for each 

MSAP. In addition to certain cost and capability requirements, the reports were required to assess 

whether the MSAP was a nonintegrated program due to a failure to integrate “the schedules for the 

acquisition and the delivery of the capabilities of the segments for the program.”85 If such a 

nonintegrated designation was declared for any MSAP by the USD(AT&L), the statute called for a 

second phase of reporting requirements to enhance congressional oversight over the program. The 

USD(AT&L) was obligated to evaluate the impact of the program’s nonintegration on its mission and 

describe the actions being enacted to achieve full integration.86 The USD(AT&L) was also obligated to 

submit annual update reports to Congress on the integration status of each nonintegrated MSAP until 

the program had achieved integration, or until 5 years had passed, after which the reporting 

requirement for the program would terminate but an automatic GAO review of the program would be 

triggered.87 There have been no subsequent amendments to the report requirement, and 10 U.S.C.

§ 2275 remains unchanged.88 

Findings

The reporting requirement at 10 U.S.C. § 2275 stemmed from longstanding concerns regarding the 

impact of flawed integration strategies on the cost and schedule objectives of major satellite acquisition 

programs. In 2007, the Air Force’s Space and Missile Systems Center reconstituted a program 

management assistance group that was charged with improving persistent system integration 

difficulties.89 As a consequence, Congress sought to improve integration strategies for MSAPs by 

passing 10 U.S.C. § 2275 in the FY 2013 NDAA, which required DoD to craft broad outlines for the 

integration of acquisition and delivery schedules and strengthened congressional oversight over the 

process.90 Congress acted in the belief that a more intensive effort to monitor major satellite acquisition 

schedules would prompt DoD to strengthen its own synchronization efforts.91 The effort has had mixed 

results. A RAND study published in 2015 concluded that integration difficulties continue to be one of 

 

83 FY 2013 NDAA, Pub. L. No. 112-239, 126 Stat. 1870 (2013). 84 Ibid. 

85 Ibid.

86 Ibid. 

87 Ibid. 

88 Reports on Integration of Acquisition and Capability Delivery Schedules for Segments of Major Satellite Acquisition Programs and 

Funding for Such Programs, 10 U.S.C. § 2275. The provision was modified by a technical amendment in December 2014, but no 

substantive alteration occurred. 89 GAO, Space Acquisitions: DOD Faces Challenges in Fully Realizing Benefits of Satellite Acquisition Improvements, March 21, 2012, 

accessed June 1, 2017, http://www.gao.gov/assets/590/589487.pdf. 90 GAO, Space Acquisitions: DOD Is Overcoming Long-Standing Problems, but Faces Challenges to Ensuring Its Investments Are Optimized, 

April 24, 2013, accessed June 1, 2017, https://www.gao.gov/assets/660/654137.pdf. 91 Ibid. 
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the primary causes of cost growth and schedule delays in MSAP’s.92 A GAO report from 2015 noted 

that a combination of congressional and DoD efforts had led to notable improvements in MSAP 

performance in recent years.93 The nature of DoD’s major satellite programs is evolving in a manner 

that could reduce vulnerability to integration problems in the near future because most of them have 

advanced to their mature phases of acquisition, in which cost and schedule problems are diminished.94

Concerns over MSAP program integration that prompted the reports at 10 U.S.C. § 2275 in the first 

place may not be representative of the main issues that will confront MSAPs in the years to come. For

those MSAP programs that still remain in the early stages, improvements in DoD’s oversight of MSAPs 

could make the problems addressed by the report less pressing in the years to come. 

Conclusions

The MSAP reporting requirement at 10 U.S.C. § 2275 is outdated in its focus on program integration. 

Congress imposed the report to address flawed MSAP integration strategies that were driving up costs 

and causing schedule delays in the early stages, but the maturation of most MSAP programs to mature 

phases of acquisition has reduced the risk caused by those problems. Furthermore, the report has 

contributed to improvements in early-stage MSAP performance, which diminishes the need for the 

report among those MSAP programs that have not yet matured. In effect, the report at 10 U.S.C. § 2275 

is outmoded because it is directed at a problem that no longer undermines MSAP performance to the 

extent that it did several years prior. 

The Office of the USD(AT&L) concurred with the Section 809 Panel’s recommendation.95 

Subrecommendation 24h: Repeal the statutory requirement for the Commercial Space 

Activities annual Cooperation with DoD report, 10 U.S.C. § 2276(e).

Background

10 U.S.C. § 2276(e) establishes a reporting requirement for DoD’s cooperation with the commercial 

space industry. The reporting requirement was initially imposed in the FY 2013 NDAA, which created 

10 U.S.C. § 2276.

96 The statutory language of section 2276 included paragraph (e), which directed the 

Secretary to submit an annual report to Congress regarding the funds, services and infrastructure that 

were impacted by any collaboration between DoD and private sector companies in the commercial 

space sector.97 Section 2276, as a whole, authorized DoD to approve use of its space transportation 

infrastructure by private sector companies, in exchange for payments or services, to reduce the upkeep 

costs for that infrastructure and enhance public-private cooperation.98 The reporting requirement

encompassed any aspect of DoD space infrastructure that had been subject to private-sector use 

through the authority, as well as any funds that DoD had secured in exchange for providing use of the 

 

92 RAND, National Defense Research Institute, Acquisition of Space Systems: Past Problems and Future Challenges, Volume 7, 2015, 

accessed June 1, 2017, http://www.acq.osd.mil/parca/docs/2015-rand-MG1171z7.pdf. 93 GAO, Space Acquisitions: Some Programs Have Overcome Past Problems, but Challenges and Uncertainty Remain for the Future, 

April 29, 2015, accessed June 2, 2017, http://www.gao.gov/assets/670/669930.pdf. 94 Ibid. 

95 Office of the Under Secretary of Defense for AT&L, ASD(A), email to Section 809 Panel staff, November 8, 2017. 96 FY 2013 NDAA, Pub. L. No. 112-239, 126 Stat. 1872 (2013). 97 Ibid. 

98 Ibid. 
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infrastructure.99 The statute required the Secretary to submit the report to Congress by January 31 of 

each year.100 There have been no subsequent amendments to the report requirement, and 10 U.S.C.

§ 2276(e) remains unchanged in its current form from the original statute.101

Findings

The reporting requirement at 10 U.S.C. § 2276(e) emanated from the novel approach of using space 

infrastructure that was sanctioned by Congress with the passage of the FY 2013 NDAA. Section 2276 

permitted DoD to receive payments and services from commercial companies in exchange for granting 

them the right to use the department’s space infrastructure for their own launch purposes.102 At the 

time, NASA itself did not possess a similar authority.103 Advocates for the initiative touted the potential 

for lower costs and greater efficiencies in maintaining DoD’s space infrastructure, without any risk of 

compromising the department’s asset ownership and with flexibility in modifying its assets for future 

purposes.104 Advocates also believed that the initiative could benefit the commercial space industry and 

support the National Space Policy as a whole through a more effective use of national resources and 

enhanced public-private partnerships.105 Given the innovative nature of the new authority, the 

reporting requirement at 10 U.S.C. § 2276(e) likely served as a means for Congress to assess its merits as 

it was implemented. For example, Congress specified in an accompanying statement to the FY 2013 

NDAA that the authority was “intended for those commercial entities who already operate at 

Department of Defense sites or will be required to operate there due to the nature of the mission they 

are conducting,” and the report would have served as a tool to ensure DoD was properly observing 

congressional intent.106 In practice, the authority does not appear relevant due to the lack of interest 

expressed by the commercial space sector. For example, a U.S. Air Force presentation in May 2014 

noted that “no private sector entity has expressed interest in leveraging this provision.” There is no 

indication that demand has increased in subsequent years.107

Conclusions

The commercial space reporting requirement at 10 U.S.C. § 2276(e) lacks a compelling rationale due to 

DoD’s minimal use of the underlying space infrastructure authority. Congress created the report to 

ensure transparency during the development of an innovative new process, through which DoD was 

authorized to allow private-sector companies to use the department’s space transportation 

 

99 Ibid. 

100 Ibid. 101 Commercial Space Launch Cooperation, 10 U.S.C. § 2276. 102 U.S. Air Force, Title 10 USC, Sec 2276: Commercial Space Launch Cooperation, May 2014, accessed June 5, 2017, 

https://www.faa.gov/about/office_org/headquarters_offices/ast/advisory_committee/meeting_news/media/2014/may/20_Title_10_US

C_CSLC_May_2014.pdf. 103 Dan Leone, “NASA Wants More Spaceport Infrastructure Opened to Private Sector,” Space News, July 3, 2013, accessed January 5, 

2018, http://spacenews.com/36111nasa-wants-more-spaceport-infrastructure-opened-to-private-sector/. 104 U.S. Air Force, Title 10 USC, Sec 2276: Commercial Space Launch Cooperation, May 2014, accessed June 5, 2017, 

https://www.faa.gov/about/office_org/headquarters_offices/ast/advisory_committee/meeting_news/media/2014/may/20_Title_10_US

C_CSLC_May_2014.pdf. 105 Ibid. 106 FY 2013 NDAA, Pub. L. No. 112-239, Joint Explanatory Statement of the Committee of Conference, 

https://www.ngaus.org/sites/default/files/NDAA%20Conference%20Report.pdf. 107 U.S. Air Force, Title 10 USC, Sec 2276: Commercial Space Launch Cooperation, May 2014, accessed June 5, 2017, 

https://www.faa.gov/about/office_org/headquarters_offices/ast/advisory_committee/meeting_news/media/2014/may/20_Title_10_US

C_CSLC_May_2014.pdf. 
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infrastructure in exchange for payments or services that could reduce upkeep costs for the 

infrastructure. The need for congressional oversight was rooted in the program’s novelty. There is little 

evidence that DoD has used the authority to an extent that could justify an annual report on its 

operation. As long as the authority remains little-used, the report lacks sufficient justification to remain 

in existence. If DoD does begin to use the authority with greater frequency, Congress can scrutinize the 

authority’s early performance and determine whether a new reporting requirement is necessary. 

The Section 809 Panel did not receive comments from DoD regarding this 

recommendation. 

Subrecommendation 24i: Repeal the statutory requirement for the Depot-Level 

Maintenance overview report, 10 U.S.C. § 2466(d).

Background

10 U.S.C. § 2466(d) establishes a reporting requirement for the Secretary to submit to Congress the 

percentage of funds expended in the preceding fiscal year, projected for the current fiscal year, and 

projected for the subsequent fiscal year for performance of depot-level maintenance. The report is due 

within 90 days after the submission of the President’s budget. The reporting requirement was initially 

imposed in the FY 1998 NDAA, which used a previously-mandated, one-time report as a model for the 

permanent report.108 The initial version of the report only encompassed funds expended during the 

preceding fiscal year, but subsequent amendments broadened the report to current and ensuing fiscal 

years as well. The report encompasses each of the Armed Forces other than the Coast Guard, as well as 

each Defense Agency.109

Findings

GAO has reviewed and written extensively on the depot-level maintenance reports at 10 U.S.C.

§ 2466(d), highlighting the continuing errors, omissions, and weaknesses in the data reported. Starting 

from 1999, the data collected were so error-prone and inadequate that GAO “could not determine 

whether the military services were in compliance with the 50-percent ceiling,” which imposed a 

50 percent cap on the annual percentage of depot funds that could be spent on contracting.110 In the 

same report, GAO stated that it did not believe that DoD’s projections of future depot maintenance 

expenditures for FYs 2000–2004 were “reasonably accurate.”111 In 2003, GAO released another report 

that discussed the many deficiencies in the reported data, resulting in a recommendation to streamline 

multiple reports into a single report that covered only a 3-year period (prior year, current year, and 

budget year) and to extend the deadline for the report to April 1 of each year.112 Despite the adoption of 

some recommendations, GAO was still unable to validate DoD’s compliance with the 50-percent ceiling 

 

108 FY 1998 NDAA, Pub. L. No. 105-85, 111 Stat. 1695 (1997) 109 Limitations on the Performance of Depot-Level Maintenance of Materiel, 10 U.S.C. § 2466. 110 GAO, Depot Maintenance: Action Needed to Avoid Exceeding Ceiling on Contract Workloads, August 2000, accessed June 29, 2017, 

http://www.gao.gov/assets/230/229470.pdf. 111 Ibid. 112 GAO, Depot Maintenance: DoD’s 50-50 Reporting Should Be Streamlined, September 2003, accessed June 29, 2017, 

http://www.gao.gov/assets/230/229470.pdf.
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or to determine its reported projections to be reasonably accurate due to persistently unreliable data.113

In 2005, GAO also noted that the reports did not provide analyses of annual changes, long-term trends, 

or methodologies used to prepare projections, which limited the reports’ usefulness for Congress to 

exercise its oversight role.114 Seven years later, in the FY 2012 NDAA, Congress created a depot 

maintenance reporting requirement at 10 U.S.C. § 2464(d) that addressed some of these concerns by 

adopting a broader and longer-term perspective on depot policy and mandating more detailed 

justifications from DoD concerning projected shortfalls. The Section 809 Panel has recommended that 

this requirement at 10 U.S.C. § 2464(d) be maintained. 

Conclusions

Depot maintenance funding is a crucial matter, yet the reporting requirement at 10 U.S.C. § 2466(d) is 

not the best mechanism to ensure the existence of proper transparency and oversight. Inaccurate data 

has undermined the report’s value; the information submitted by DoD to Congress for many years was 

flawed to such a large extent that analysts were unable to use it in the service of even basic conclusions. 

The report’s narrow focus on funding has limited its utility to address broader issues of depot 

maintenance, which may have contributed to the creation of a related report at 10 U.S.C. § 2464(d) that 

has proven to be considerably more effective as a source of data for congressional oversight since its 

creation in the FY 2012 NDAA. The broader mandate of 10 U.S.C. § 2464(d) and its greater success with 

data collection has created a redundancy of effort for the report at 10 U.S.C. § 2466(d). For the reasons 

stated above, the Section 809 Panel recommends that Congress repeal this reporting requirement.

The Office of the Assistant Secretary of Defense for Logistics and Material Readiness

(L&MR) dissented from the Section 809 Panel’s recommendation. L&MR argued that the 

reports at 10 U.S.C. § 2464(d) and 10 U.S.C. § 2466(d) are “complementary,” and that the 

former focuses on establishing the proper “organic capabilities” for depot maintenance 

while the latter focuses on ensuring sufficient resource commitment to sustain “core 

[depot] capabilities.”115 After receiving this comment, the panel opted not to alter its 

recommendation in the belief that the report at 10 U.S.C. § 2464(d) is a more effective 

vehicle for congressional oversight of depot maintenance policies than the report at 

10 U.S.C. § 2466(d). The extent to which the two reports may be complementary does not 

outweigh the issues of data quality and redundancy that lessen the value of the report at 

10 U.S.C. § 2466(d).

Subrecommendation 24j: Repeal the statutory requirement for the Covered Naval Vessels

Repair Work in Foreign Shipyards annual report, 10 U.S.C. § 7310(c).

Background

10 U.S.C. § 7310(c) establishes a reporting requirement for DoD’s use of foreign shipyards in the repair 

and maintenance of covered naval vessels. The reporting requirement was initially imposed in the

 

113 GAO, Depot Maintenance: Actions Needed to Provide More Consistent Funding Allocation Data to Congress, November 2006, accessed 

June 29, 2017, http://www.gao.gov/assets/260/254047.pdf. 114 GAO, Depot Maintenance: Persistent Deficiencies Limit Accuracy and Usefulness of DoD’s Funding Allocation Data Reported to 

Congress, November 2005, accessed June 29, 2017, http://www.gao.gov/assets/250/248595.pdf. 115 Office of the Assistant Secretary of Defense for Logistics & Material Readiness, email to Section 809 Panel staff, November 8, 2017. 
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FY 2009 NDAA, which amended the existing 10 U.S.C. § 7310.

116 The underlying text of the section was 

already in place by enactment of the FY 2009 NDAA, namely stating that naval vessels based out of 

homeports in the United States were prohibited from being “overhauled, repaired, or maintained in a 

shipyard outside the United States or Guam, other than in the case of voyage repairs.”117 Furthermore, 

naval vessels based out of homeports overseas were prohibited from receiving repair work in those 

shipyards for a period of 15 months before any planned reassignment to a shipyard in the United 

States, and naval vessels based in U.S. homeports were required to receive repair work in those 

shipyards for a period of 15 months before any planned reassignment to a homeport overseas.118 Upon 

its creation, the reporting requirement in paragraph (c) provided an overview of the number of naval 

vessels that fell within the section’s authority. Congress mandated that the Secretary of the Navy 

submit the report annually, and that each report detail “all repairs and maintenance performed on any 

covered naval vessel that has undergone work for the repair of the vessel in any shipyard outside the 

United States or Guam.”119 Each report was to assess the previous fiscal year, rather than the fiscal year 

in which it was being submitted.120 Congress determined a precise set of criteria that were required for 

incorporation into each report, including the percentage of the Navy’s annual ship repair budget that 

was dedicated to the repair of covered vessels in foreign shipyards; the legal justification for the use of 

foreign shipyards; the name and class of any vessel, and the category of repair undertaken in any 

foreign shipyard; the location of any foreign shipyard used for repairs; details regarding the duration, 

cost, and schedule of any repairs in a foreign shipyard; and the nature of the contract for any repairs 

performed in a foreign shipyard.121 The reporting requirement has not been amended since the FY 2009 

NDAA.122

Findings

Along with a related report in section 1017(e) of the FY 2007 NDAA, the reporting requirement in 

10 U.S.C. § 7310(c) constitutes another aspect of Congress’s longstanding commitment to support the 

domestic shipbuilding industry. Section 7310 is one of several legislative initiatives undertaken by 

Congress to bolster domestic shipyards, including the Jones Act (which mandates domestic ownership 

of all domestic maritime shipping), 10 U.S.C. § 7309, and 14 U.S.C. § 665.123 The reporting requirement, 

implemented at the end of 2008, further strengthened congressional ability to monitor DoD’s use of 

foreign shipyards for repairs on naval vessels. There is little evidence, however, to support the notion 

that naval vessels seeking repairs in foreign shipyards represent a practical problem for naval 

operations, which raises the question as to whether domestic factors are outweighing military 

considerations in the operation of the reporting requirement. The issue of naval repairs in foreign 

shipyards appears to have more salience as a domestic matter than as a military concern. 

 

116 FY 2009 NDAA, Pub. L. No. 110-417, 122 Stat. 4584 (2008). 117 Overhaul, Repair, Etc. of Vessels in Foreign Shipyards: Restrictions, 10 U.S.C. § 7310. 118 Ibid. 119 FY 2009 NDAA, Pub. L. No. 110-417, 122 Stat. 4584 (2008). 120 Ibid. 121 Ibid. 122 Overhaul, Repair, Etc. of Vessels in Foreign Shipyards: Restrictions, 10 U.S.C. § 7310. 123 National Defense University, Shipbuilding Industry 2011, Spring 2011, accessed June 19, 2017, 

http://es.ndu.edu/Portals/75/Documents/industry-study/reports/2011/icaf-is-report-shipbuilding-2011.pdf. 
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Conclusions

The foreign shipyard repair and maintenance reporting requirement at 10 U.S.C. § 7310(c) lacks a 

compelling policy rationale. Federal support for the domestic shipbuilding sector is a longstanding 

national policy; however, the reporting requirement itself has only existed since 2009, marking it as a 

recent supplement to a policy framework that had existed for many decades prior. The report is not 

justified as a useful tool for naval repairs oversight, which is ostensibly the subject of the report. The 

report’s inadequate justification and limited policy effect render it difficult to support on substantive 

grounds. 

The Section 809 Panel did not receive comments from DoD regarding this 

recommendation. 

Subrecommendation 24k: Repeal the statutory requirement for the Reserve Component 

Equipment annual procurement report, 10 U.S.C. § 10543(a).

Background

10 U.S.C. § 10543(a) establishes a reporting requirement for the proposed expenditures and 

appropriations supporting the major procurement activities of the Reserve Components of the armed 

forces. The reporting requirement was initially imposed in the FY 1997 NDAA, which created 10 U.S.C.

§ 10543.124 The provision required the Secretary to disclose to Congress “the estimated expenditures 

and the proposed appropriations” underlying equipment and military construction procurement for 

“each of the Reserve Components of the armed forces.”125 The report was due to be completed annually 

and submitted as a part of the annual future-years defense program report under 10 U.S.C. § 221.

126

Although Congress has subsequently broadened the scope of section 10543 as a whole, the reporting 

requirement in paragraph (a) has not been amended since the FY 1997 NDAA.127

Findings

The reporting requirement at 10 U.S.C. § 10543(a) arose due to congressional concerns over inadequate 

equipment provisions for the National Guard and Reserve Components. As early as 1983, the Army 

recognized the need to enhance reserve readiness by establishing the Minimum Essential Equipment 

for Training program, which intended to “identify, by unit, specific types and quantities of equipment 

that were critical to training in Reserve Component units and to give those units priority.”128 The 

initiative failed due to poor management, however, and Congress increasingly took notice in the early 

1990’s due to fears that “shortages of essential equipment continue to hamper Army National Guard 

and Army Reserve efforts to conduct effective training.”129

Amidst ongoing DoD struggles to properly equip the Reserve Components, Congress mandated the 

annual report on Reserve Component equipment and military construction in 1996 as part of its effort 

 

124 FY 1997 NDAA, Pub. L. No. 104-201, 110 Stat. 2699 (1996). 125 Ibid. 126 Ibid. 127 National Guard and Reserve Component Equipment Procurement and Military Construction Funding: Inclusion in Future-Years 

Defense Program, 10 U.S.C. § 10543. 128 GAO, Army Reserve Components: Minimum Essential Equipment for Training Has Not Been Effectively Managed, May 1990, accessed 

June 20, 2017, http://www.gao.gov/assets/220/212554.pdf. 129 Ibid. 
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to ensure that the reserves received adequate funding to maintain a proper degree of readiness.130 The 

effect of the report in the intervening 2 decades is questionable. The policy dilemma remains acute: As 

recently as March 2017, the Army’s deputy chief of staff for operations (G-3) acknowledged to 

Congress that reserve readiness remained problematic due to shortfalls in personnel, training and 

equipment.131 Nevertheless, the report itself is made redundant by 10 U.S.C. § 10541 (National Guard 

and Reserve Component Equipment: Annual Report to Congress), which requires a comprehensive 

submission to Congress regarding numerous facets of equipment procurement for the National Guard 

and the Reserve Components.132

The information provided by the report at 10 U.S.C. § 10543(a) is already contained within the larger 

report at 10 U.S.C. § 10541, which was first created in 1990 and predates the later report by half a 

decade.133 A 2007 analysis by the Federal Research Division of the Library of Congress cited the report 

at 10 U.S.C. § 10541 repeatedly as the primary source for Reserve Component funding data, without 

mentioning the separate report at 10 U.S.C. § 10543(a).134 The relationship between the two reports 

indicates that the report at 10543(a) has not fulfilled its original purpose. 

Conclusions

The Reserve Component equipment procurement reporting requirement at 10 U.S.C. § 10543(a) is made 

redundant by 10 U.S.C. § 10541, which represents the paramount source of congressional oversight for 

Reserve Component and National Guard readiness. This redundancy deprives the report at 10 U.S.C.

§ 10543(a) of much of its potential value. Reserve Component equipment readiness remains an 

important issue, but a duplicative report can distract from proper congressional oversight as much as it 

can inform. In light of its overlapping condition, the limited benefits of the report do not justify its 

continuation. 

The Office of the Under Secretary of Defense for Personnel and Readiness concurred 

with the Section 809 Panel’s recommendation.135 

Subrecommendation 24l: Repeal the statutory requirement for the Reserve Components 

annual procurement threshold report, 10 U.S.C. § 10543(c).

Background

The reporting requirement established by 10 U.S.C. § 10543(c) is closely related to the reporting 

requirement at 10 U.S.C. § 10543(a), discussed above. Paragraph (a) of section 10543 requires that DoD 

detail the estimated expenditures and proposed appropriations for Reserve Components in regards to 

equipment procurement and military construction, and paragraph (c) creates a conditional report for 

 

130 RAND, Equipping the Reserve Components of the Armed Services, 1997, accessed June 20, 2017, 

https://www.rand.org/content/dam/rand/pubs/documented_briefings/2005/DB209.pdf. 131 Charlsy Panzino, “3-Star: More Training Days for the Guard as the Army Struggles with Readiness,” Army Times, March 8, 2017, 

accessed January 5, 2018, https://www.armytimes.com/articles/3-star-more-training-days-for-the-guard-as-the-army-struggles-withreadiness. 132 National Guard and Reserve Component Equipment: Annual Report to Congress, 10 U.S.C. § 10541. 133 FY 1991 NDAA, Pub. L. No. 101-510, 104 Stat. 1714 (1990). 134 Federal Research Division, Funding for Reserve Component Equipment: An Analysis of the Budget Process, November 2007, accessed 

June 20, 2017, https://www.loc.gov/rr/frd/pdf-files/CNGR_Funding-Equipment.pdf. 135 Office of the Under Secretary of Defense for Personnel and Readiness, email to Section 809 Panel staff, November 29, 2017. 
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DoD in the event that the department’s funding request for equipment procurement and military 

construction falls short of a congressionally-mandated threshold. The reporting requirement in 

paragraph (c) was imposed in the FY 1998 NDAA as an amendment to the existing section 10543, 

which had been created the previous year.136 The statute asserted that DoD must aggregate its annual 

funding requests for Reserve Component equipment procurement and military construction, and then 

determine whether the aggregate request equaled at least 90 percent of the “average authorized 

amount applicable for that fiscal year.”137 If the aggregate request failed to meet the 90 percent

threshold, the Secretary was obligated to submit a report to Congress that specified “the additional 

items of equipment that would be procured, and the additional military construction projects that 

would be carried out” if the funding request was elevated to the 90 percent threshold.138 In the FY 2012 

NDAA, Congress amended the reporting requirement to allow more time for the Secretary to complete 

the report by extending the period from 15 days to 90 days after the submission of the presidential 

budget.139 No other amendments to the provision have occurred since the FY 1998 NDAA.140

Findings

The reporting requirement at 10 U.S.C. § 10543(c) is linked to the Reserve Component equipment 

procurement report at 10 U.S.C. § 10543(a). The report at 10 U.S.C. § 10543(c) is conditional in nature—

triggered by a failure to meet a funding threshold rather than a simple annual disclosure of data—yet it 

is still inherently derived from the information produced in paragraph (a) of section 10543. As a result, 

arguments regarding the efficacy of the annual report must also be considered in assessing the 

conditional report. The two reports should be considered in tandem, and the redundancy of the report 

in paragraph (a) affects the utility of the report in paragraph (c) as well.

Conclusions

The Reserve Component reporting requirement at 10 U.S.C. § 10543(c) should be repealed for reason 

similar to those justifying repeal of the report at 10 U.S.C. § 10543(a). The report arises on a provisional 

basis if DoD’s annual funding requests for Reserve Component equipment procurement and military 

construction fall short of a designated threshold. That threshold is linked to information collected to 

satisfy the obligation of 10 U.S.C. § 10543(a); however, as detailed above, the data provided by 

10 U.S.C. § 10543(a) is duplicative with the primary Reserve Component report at 10 U.S.C. § 10541. 

Even though the two reports emphasize different elements of the issue for Congress, their value is 

mutually undermined by redundancy with 10 U.S.C. § 10541. The report’s utility is too limited to 

justify its continuation. 

The Office of the Under Secretary of Defense for Personnel and Readiness concurred 

with the Section 809 Panel’s recommendation.141

 

136 FY 1998 NDAA, Pub. L. No. 105-85, 111 Stat. 1872 (1997). 137 Ibid. 138 Ibid. 139 FY 2012 NDAA, Pub. L. No. 112-81, 125 Stat. 1587 (2011). 140 National Guard and Reserve Component Equipment Procurement and Military Construction Funding: Inclusion in Future-Years 

Defense Program, 10 U.S.C. § 10543. 141 Office of the Under Secretary of Defense for Personnel and Readiness, email to Section 809 Panel staff, November 29, 2017. 
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Subrecommendation 24m: Repeal the statutory requirement for the Missile Defense Agency

annual overview report, FY 2002 NDAA, 232(h)(3).

Background

Section 232(h)(3) of the FY 2002 NDAA establishes an annual reporting requirement for the MDA test 

program. In its original form, section 232 – which is classified as a note under 10 U.S.C. § 2431 –

required the DOT&E to “assess the adequacy and sufficiency of the Ballistic Missile Defense 

Organization test program” for the preceding fiscal year.142 Congress also required the official to 

submit a report by February 15 of each year that summarized the results of the assessment.143 The 

reporting requirement was amended in the FY 2009 NDAA in order to broaden the scope of the report 

by compelling the DOT&E to consider “the operational effectiveness, suitability, and survivability of 

the ballistic missile defense system, and its elements, that have been fielded or tested before the end of 

the fiscal year.”144 Thus, the annual report to Congress encompassed both a review of each year’s 

Ballistic Missile Defense Organization test program (later amended to the MDA test program) and an 

analysis of any ballistic missile programs that were fielded or tested that year. The substantive 

components of the reporting requirement have not been amended since the FY 2009 NDAA.145 

Findings

Section 232(h) originated during a period of reorganization and expansion in DoD’s ballistic missile 

defense program. MDA emerged in its contemporary form in 2002, during a period in which the 

administration of President George W. Bush signaled a strong commitment to increased funding for 

missile defense programs.146 The reporting requirement at section 232(h)(3) was likely intended to 

compel further transparency from MDA and enhance the ability of Congress to exercise an appropriate 

level of oversight. Fifteen years later, however, the MDA test program remains flawed. A GAO report 

from April 2016 determined that the test program was prone to “constant alterations,” which rendered 

it difficult to “assess individual element and BMDS developmental progress and to trace the costs 

associated with each test.”147 GAO offered a similarly critical perspective in May 2017, asserting that 

MDA’s test program lacked an adequate degree of “traceability and insight” and suggesting that MDA 

undertake to improve the test program’s consistency, scheduling, cost estimates and funding 

disclosures.148 MDA’s test program is thus likely to remain a source of concern in the near future.

Conclusions

The reporting requirement imposed in section 232(h)(3) of the FY 2002 NDAA does not provide enough 

value to justify its perpetuation. The requirement overlaps with other missile defense reporting 

requirements, such as 10 U.S.C. § 223a(a) and 10 U.S.C. § 225(c), as well as section 1662 of the FY 2015 

NDAA, in that each possesses a focus on early-stage developments within the ballistic missile program. 

 

142 FY 2002 NDAA, Pub. L. No. 107-107, 115 Stat. 1039 (2001). 143 Ibid. 144 FY 2009 NDAA, Pub. L. No. 110-417, 122 Stat. 4390 (2008). 145 Weapons Development and Procurement Schedules, 10 U.S.C. § 2431. 146 GAO, Defense Acquisitions: Missile Defense Agency’s Flexibility Reduces Transparency of Program Cost, April 30, 2007, accessed 

June 23, 2017, https://www.gpo.gov/fdsys/pkg/GAOREPORTS-GAO-07-799T/html/GAOREPORTS-GAO-07-799T.htm. 147 GAO, Missile Defense: Ballistic Missile Defense System Testing Delays Affect Delivery of Capabilities, April 28, 2016, accessed June 23, 

2017, http://www.gao.gov/assets/680/676855.pdf. 148 GAO, Missile Defense: Some Progress Delivering Capabilities, but Challenges with Testing Transparency and Requirements 

Development Need to be Addressed, May 2017, accessed June 23, 2017, http://www.gao.gov/assets/690/684963.pdf. 
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Further, the report has demonstrated little success at improving outcomes in the MDA testing program 

in the 15 years since it was created. The report’s duplicative information and inability to support MDA 

in achieving its goals of timeliness, transparency, and traceability supports the case for the 

requirement’s repeal. 

MDA concurred with the Section 809 Panel’s recommendation.149 DOT&E dissented 

from the recommendation. The office acknowledged that the report contained “some 

similarities in report content” with the other MDA reports, but argued that the report 

focused to a greater extent on the “adequacy of the MDA test program” than the other 

reports. The panel opted not to alter its recommendation in the belief that redundancy in 

report content between this report and the other MDA reports outweighs the report’s 

value in terms of enhanced oversight.150 

Subrecommendation 24n: Repeal the statutory requirement for the Ford-Class Aircraft 

Carrier annual cost estimate report, FY 2007 NDAA, 122(d)(1).

Background

Section 122(d)(1) of the FY 2007 NDAA establishes a reporting requirement for deviations from the 

Navy’s cost estimates regarding its Ford-Class aircraft carrier program. Section 122 implemented a 

framework for Navy procurement on the Ford-Class program by mandating that the lead ship could 

not exceed $10.5 billion in procurement funds, and all follow-on ships could not exceed $8.1 billion in 

procurement funds.151 The provision did authorize adjustments in the procurement budget for several 

specified reasons, such as inflation, outfitting, and post-delivery costs, the application of new 

technologies, nonrecurring design and engineering costs, and safety deficiencies.152 The provision also 

imposed conditions on the technology justification, namely that cost adjustments for new technologies 

were only warranted if the technologies were projected to decrease life-cycle costs or respond to 

emerging threats that undermined American national security.153 In paragraph (d)(1) of the provision, 

Congress directed the Secretary of the Navy to submit an annual report detailing “any change in the 

amount” of the procurement budget for a Ford-Class aircraft carrier under any of the official 

justifications.154 The reporting requirement has not been amended since the FY 2007 NDAA.

Findings

Despite the best efforts of Congress, the Ford-Class aircraft carrier program has been plagued with cost 

overruns in the decade since the passage of the FY 2007 NDAA. In June 2017, GAO reported that the 

lead ship CVN-78 had experienced 23 percent cost growth to an estimated $12.9 billion, more than 

$2 billion in excess of the original congressional ceiling.155 At the same time, CVN-78 was expected to 

possess reduced capability at delivery despite the enormous additional funding that had been directed 

 

149 Missile Defense Agency, phone call with Section 809 Panel staff, November 29, 2017. 150 DOT&E, email to Section 809 Panel staff, December 8, 2017. 151 FY 2007 NDAA, Pub. L. No. 109-364, 120 Stat. 2105 (2006). 152 Ibid. 153 Ibid. 154 Ibid. 155 GAO, Ford-Class Aircraft Carrier: Follow-On Ships Need More Frequent and Accurate Cost Estimates to Avoid Pitfalls of Lead Ship, 

June 2017, accessed June 27, 2017, https://www.gao.gov/assets/690/685241.pdf. 
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into its procurement.156 Follow-on ships in the Ford-Class program have not proven immune from 

similar cost failings; the next ship, CVN-79, is now projected to cost $11.4 billion, more than $3 billion 

higher than the original congressional ceiling.157 GAO remains doubtful that the underlying cost 

problems in the Ford-Class program have been properly remedied. In the same report, GAO argued 

that “the cost estimate for the second Ford-Class aircraft carrier, CVN 79, is not reliable and does not 

address lessons learned from the performance of the lead ship, CVN 78.”158 GAO’s analysis 

demonstrates the intense oversight directed at the Ford-Class program independently of the reporting 

requirement at section 122(d)(1). In the past 10 years, GAO has conducted multiple assessments of the 

Ford-Class program’s budgetary development at the behest of Congress, publishing reports in 2007, 

2013, 2014, 2015, and 2017.159 Furthermore, the CRS wrote a report on the history and status of the FordClass program in August 2017 and the SASC conducted a hearing on the Ford-Class program in 

October 2015.160 The program’s size and importance for the Navy’s future has produced a level of 

intensive oversight that extends far beyond what the reporting requirement can provide. The report 

itself is thus a marginal factor and subsequently of little value in congressional oversight of the FordClass program. 

Conclusions

In recent years, separate oversight mechanisms have overtaken the Ford-Class aircraft carrier reporting 

requirement that was imposed in section 122(d)(1) of the FY 2007 NDAA. The need for vigilant 

congressional oversight of the Ford-Class program has not diminished, but the report itself is now a 

peripheral component of oversight efforts led by congressional committees and offices such as GAO 

and CRS. As a result of the intense scrutiny that the Ford-Class program is likely to operate under for at 

least the near-term, the reporting requirement has become largely redundant to other oversight efforts.

The Navy’s Office of Legislative Affairs concurred with the Section 809 Panel’s 

recommendation.

161

Subrecommendation 24o: Repeal the statutory requirement for the Carriage by Vessel

annual Repair Work in Foreign Shipyards report, FY 2007 NDAA, 1017(e).

Background

Section 1017(e) of the FY 2007 NDAA establishes a reporting requirement for covered vessels that 

undergo repair work at foreign shipyards. Section 1017 created a new provision that is classified as a 

note under 10 U.S.C. § 2631.162 The statutory language of section 1017 identified the objective of the 

provision as the maintenance of the national defense industrial base.163 To accomplish that aim, 

Congress directed the Secretary to create an “acquisition policy” with a new criterion for “obtaining 

 

156 Ibid. 157 Ibid. 158 Ibid. 159 Ibid. 160 Congressional Research Service, Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, August 2017, 

accessed October 26, 2017, https://fas.org/sgp/crs/weapons/RS20643.pdf. 161 Department of the Navy, Office of Legislative Affairs, email to Section 809 Panel staff, December 14, 2017. 162 Supplies: Preference to United States Vessels, 10 U.S.C. § 2631. 163 FY 2007 NDAA, Pub. L. No. 109-364, 120 Stat. 2379 (2006). 
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carriage by vessel of cargo.”164 The new criterion would require the consideration of “the extent to 

which an offeror of such carriage had overhaul, repair, and maintenance work for covered vessels of 

the offeror performed in shipyards located in the United States.”165 By this means, Congress directed 

DoD to evaluate whether any company seeking a contract to deliver supplies to the department by ship 

also utilized foreign shipyards for any repair or maintenance work on its fleet. The reporting 

requirement at paragraph (e) instructed DoD to provide an annual overview to Congress regarding any 

contractor to which the new acquisition policy applied, as well as the details of the contractor’s repair 

work in foreign shipyards.166 The reporting requirement has not been amended since the FY 2007 

NDAA.167

Findings

Similar to a related report at 10 U.S.C. § 7310(c), the report required by Section 1017(e) arose out of 

Congress’s longstanding support for the use of domestic shipyards in the defense acquisition system. 168

Section 1017 of the FY 2007 NDAA broadened this support into a new aspect of the defense acquisition 

system by requiring DoD to evaluate whether offerors used foreign or domestic shipyards for repair 

and maintenance work on their covered vessels. Analogous to 10 U.S.C. § 7310(c), the report’s policy 

rationale is limited and appears to be primarily rooted in domestic, rather than military, concerns. 

Furthermore, the effect of the report on DoD’s supply system since its implementation is unclear. 

Conclusions

In a similar fashion to the reporting requirement at 10 U.S.C. § 7310(c), the carriage by vessel reporting 

requirement that was imposed in section 1017(e) of the FY 2007 NDAA lacks a compelling policy 

justification. The report is aimed at bolstering the domestic shipbuilding sector by increasing the 

scrutiny on contractors using foreign shipyards, but there is little evidence that the issue is 

substantively important to DoD’s operations or that the report has even had a discernible impact. The 

inadequate policy justification for the report argues against its continuation. 

The Section 809 Panel did not receive comments from DoD regarding this 

recommendation. 

Subrecommendation 24p: Repeal the statutory requirement for the Bandwidth Capacity 

annual overview report, FY 2009 NDAA, 1047(d)(2).

Background

Section 1047(d)(2) of the FY 2009 NDAA establishes a reporting requirement in regards to the 

bandwidth requirements for MDAPs. Section 1047 required the Secretary and the Director of National 

Intelligence (DNI) to conduct an expansive joint review of the near, mid- and long-range bandwidth 

requirements for the military and intelligence communities.169 Congress mandated that the review 

encompass existing bandwidth capacities, projected bandwidth capacities, possible technological 

 

164 Ibid. 165 Ibid. 166 Ibid. 167 Supplies: Preference to United States Vessels, 10 U.S.C. § 2631. 168 National Defense University, Shipbuilding Industry 2016, Spring 2016, accessed June 6, 2017, 

http://es.ndu.edu/Portals/75/Documents/industry-study/reports/2016/es-is-report-shipbuilding-2016.pdf. 169 FY 2009 NDAA, Pub. L. No. 110-417, 122 Stat. 4602 (2008). 
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developments that could impact bandwidth capacities, and strategies to mitigate shortfalls and meet 

anticipated costs for bandwidth capacities for both communities.170 Congress also established a 1-year 

deadline, after the date of enactment, for the Secretary and DNI to submit a report to Congress 

detailing the conclusions of the report.171 Finally, Congress directed the two officials to establish a 

review process to guarantee that all MDAPs would enjoy the necessary bandwidth capacity in the 

future, as a part of the Milestone B or Key Decision Point B approval process.172 One year later, with the 

initial deadline having passed, Congress amended Section 1047 to eliminate the language referring to 

the one-time report.173 In its place, Congress established a new annual report to detail the conclusions 

that the Secretary and the DNI had reached concerning the bandwidth requirements needed to support 

MDAPs in the previous fiscal year.174 The reporting requirement has not been amended again since the

FY 2010 NDAA.175

Findings

The reporting requirement at Section 1047(d)(2) was intended to facilitate congressional oversight of

DoD’s bandwidth acquisition system. In the years preceding the FY 2009 NDAA, DoD received 

criticism for possessing a bandwidth acquisition structure that moved too slowly, lacked flexibility, and 

imposed unnecessary costs.176 Despite the report, bandwidth acquisition remained troublesome for 

DoD in the aftermath of the FY 2009 NDAA. A GAO report in July 2015 concluded that DoD’s 

bandwidth acquisition system was still “fragmented and inefficient,” resulting in a constant struggle to 

ensure that bandwidth requirements were achieved.177 GAO also criticized DoD for lacking the 

necessary data to craft long-term procurement decisions regarding bandwidth, and for failing to 

overcome a decentralized system of bandwidth procurement.178 GAO’s critical assessment highlighted 

the continuing difficulties confronting DoD’s attempts to ensure long-term bandwidth support for 

major programs, which was the central subject of the reporting requirement. Additionally, DoD did act 

in September 2016 to improve the quality of bandwidth capacity planning through updated guidance 

(DoDI 8420.02), yet the reporting requirement did not play a direct role in that process and is not wellpositioned to convey the impact of any changes to Congress.179 

Conclusions

The reporting requirement’s lack of success is rooted in its makeshift origin and ineffective 

configuration. The report was initially intended to be a 1-year report before it was made permanent in 

the FY 2010 NDAA. The contemporary permanent report is overly broad and poorly targeted to 

address the policy problem. The report imposes joint responsibility for bandwidth oversight onto the 

Secretary and the DNI; such responsibility is ill-suited for offices at that level, which are not ideal 

sources for the detailed oversight required by the report. As a result, the report fails to properly direct 

 

170 Ibid. 171 Ibid. 172 Ibid. 173 FY 2010 NDAA, Pub. L. No. 111-84, 123 Stat. 2449 (2009). 174 Ibid. 175 Major Defense Acquisition Programs: Certification Required Before Milestone B Approval, 10 U.S.C. § 2366b. 176 GAO, Defense Satellite Communications: DOD Needs Additional Information to Improve Procurements, July 2015, accessed June 27, 

2017, https://www.gao.gov/assets/680/671484.pdf. 177 Ibid. 178 Ibid. 179 DoD Satellite Communications (SATCOM), DoDI 8420.02 (2016). 
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its focus to generating the necessary data from DoD’s existing decentralized bandwidth system. The 

report has outlived whatever initial usefulness it may have possessed, and its imperfect structure 

undermines its utility to Congress and reduces the likelihood that tangible improvements in 

bandwidth acquisition would arise from congressional oversight of its data. 

The office of the DoD Chief Information Officer concurred with the Section 809 Panel’s 

recommendation.180 

Subrecommendation 24q: Repeal the statutory requirement for the Afghanistan 

Infrastructure Fund annual overview report, FY 2011 NDAA, 1217(i).

Background

Section 1217(i) of the FY 2011 NDAA establishes a reporting requirement in regards to a joint program 

between DoD and the State Department to fund infrastructure projects in Afghanistan as a part of the 

broader U.S. counterinsurgency strategy. Section 1217 created a new authority that is classified as a 

note under 22 U.S.C. 7513.181 The statutory language of Section 1217 granted far-reaching authority to a 

joint DoD–State Department “Afghanistan Infrastructure Fund” to develop infrastructure projects—

described only as “water, power, and transportation projects; and other projects in support of the 

counterinsurgency strategy in Afghanistan”—using up to $400 million in funds for the first fiscal year 

of the program.182 Congress directed the Secretary to provide notification at least 30 days before using 

any funds under the new program authority, explaining why the designated infrastructure project 

would be sustainable and justifying the project’s counterinsurgency rationale.183 The reporting 

requirement at paragraph (i) was intended to provide a general overview of the program by detailing 

the “allocation and use of funds” under the program, as well as a “description of each project” funded 

through the program authority.184 The reporting requirement, which was directed to the Secretary “in 

coordination with the Secretary of State,” was automatically triggered for each fiscal year “in which 

funds are obligated, expended, or transferred under the program.”185 Subsequent amendments 

extended the funding authority through FY 2014 and imposed limitations on the total amount of 

funding that could be utilized by DoD and State before submitting further justification to Congress.186

The reporting requirement itself has not been amended since its creation in the FY 2011 NDAA.187

Findings

Section 1217 was intended to further strengthen America’s counterinsurgency strategy in Afghanistan 

by funding “high-priority, large-scale infrastructure projects in support of the civil-military campaign 

in Afghanistan.”188 Within several years, the program authorized by Section 1217 appears to have 

exhausted its congressional support. The most recent amendment to Section 1217 occurred in the

 

180 DoD Chief Information Officer, email to Section 809 Panel staff, December 5, 2017. 181 Authorization of Assistance, 22 U.S.C. § 7513. 182 FY 2011 NDAA, Pub. L. No. 111-383, 124 Stat. 4393 (2011). 183 Ibid. 184 Ibid. 185 Ibid. 186 Authorization of Assistance, 10 U.S.C. § 7513. 187 Ibid. 188 FY 2011 NDAA, Pub. L. No. 111-383, Joint Explanatory Statement of the Committees on Armed Services of the U.S. Senate and House 

of Representatives, http://www.wifcon.com/dodauth11/hr6523_explan.pdf. 
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FY 2014 NDAA, in which funding authority for the Afghanistan Infrastructure Fund was authorized 

through FY 2014 at a lower level of funding ($250 million, as compared to $350 million in FY 2013 and 

the original $400 million in FY 2011).189 Congress opted not to provide any further funding authority to 

the Section 1217 program after FY 2014. Congress also approved two additional requirements that 

signaled its intention to end the program as a source of funding for new infrastructure projects after

FY 2014: (a) a new requirement upon the Secretary to assess whether the Afghan National Security 

Forces were capable of providing security for infrastructure projects funded through the program in

FY 2014190 and (b) a mandate that the Secretary consult with the Secretary of State and the USAID 

Administrator to draft a plan “for the transition to the Government of Afghanistan, or a utility entity 

owned by the Government of Afghanistan, of the project management of projects funded with amounts 

authorized by this Act for the Afghanistan Infrastructure Fund.”191 Congress also articulated the 

contours of the plan, namely a description of all projects that would transition to Afghan control and an 

assessment of the ongoing costs to the Afghan government and the United States of managing the 

projects, as well as the capability of the Afghan government to manage the projects successfully.192

Congress effectively required DoD to submit a plan for the termination of the direct American role in 

funding and maintaining infrastructure projects through the Afghanistan Infrastructure Fund. The 

statutory language articulated in the FY 2014 NDAA remains in effect, which indicates that the fund no 

longer possesses the authority to support new projects.

Conclusions

As the Afghanistan Infrastructure Fund nears its end, the reporting requirement for the program that 

was imposed in Section 1217(i) of the FY 2011 NDAA has lost its purpose. Congress created the report 

to facilitate its oversight of the program, but the fund has lacked the authority to finance new projects 

since the end of FY 2014. Congress’s decision to halt funding authority and instruct DoD to prepare for 

the transition of infrastructure projects funded through the program to Afghan control signals that the 

program is effectively defunct. In light of this, the oversight afforded by the report is no longer 

necessary. 

The Section 809 Panel did not receive comments from DoD regarding this 

recommendation. 

Subrecommendation 24r: Repeal the statutory requirement for the MDAP Testing and 

Evaluation annual justification of progress report, FY 2013 NDAA, 904(h)(1) and (2).

Background

Paragraphs (1) and (2) of Section 904(h) of the FY 2013 NDAA establish a reporting requirement to 

detail MDAPs that proceed to testing and evaluation despite internal DoD objections. The statutory 

language, which is classified as a note under 10 U.S.C. § 133, directed the USD(AT&L) to submit an 

annual report to Congress that describes every instance in which an MDAP moved forward in the 

testing and evaluation process over departmental objections. Congress specified that each report must 

consist of two components: a record of every MDAP that “proceeded to implement a test and 

 

189 FY 2014 NDAA, Pub. L. No. 113-66, 127 Stat. 907 (2013). 190 Ibid. 191 Ibid. 192 Ibid. 
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evaluation master plan” despite the Deputy Assistant Secretary of Defense for Developmental Test and 

Evaluation’s [DASD(DT&E)] finding of disapproval for the plan; and a record of every MDAP that 

“proceeded to initial operational testing and evaluation” despite the same official’s determination that 

the program was not yet ready for operational testing.193 For both categories, Congress mandated that 

the report explain the causes of the internal objections, the rationale behind DoD’s decision to proceed 

with the program regardless, and the actions taken by DoD to address the internal concerns while 

moving forward with testing and evaluation.194 Congress required the USD(AT&L) to submit the 

annual reports within 60 days of the end of each fiscal year.195 Congress also specified that the reports 

were only due between fiscal years 2013 and 2018, establishing a 5-year timeline without any reference 

to subsequent reporting requirements after fiscal year 2018.196 The reporting requirement in paragraphs 

(1) and (2) has not been amended since the FY 2013 NDAA.197

Findings

Section 904(h) of the FY 2013 NDAA was intended to address congressional discontent over the role of 

the DASD(DT&E) within DoD’s testing and evaluation process. Congress established the position in 

the FY 2009 NDAA for the purpose of strengthening the role of testing and evaluation in developing 

major weapons systems.198 Within 4 years, however, Congress concluded that DoD had failed to 

properly integrate the position into its internal structure. In a Joint Explanatory Statement that 

accompanied the FY 2013 NDAA, Congress criticized DoD for failing to provide the necessary 

resources, staff, and access to the position, as well as failing to ensure that the deputy assistant 

secretary was fully assimilated into the department’s testing and evaluation process.199 Congress also 

expressed concern that DoD had failed to give “adequate attention to shortcomings identified by 

DASD(DT&E) in developmental testing.”200 This final objection was addressed in paragraphs (1) and 

(2) of Section 904(h), which compelled DoD to submit a report to Congress disclosing any instance in 

which the testing and evaluation process for an MDAP moved forward over the objections of the 

DASD(DT&E).201 The reporting requirement was designed to assist the DASD(DT&E) in fully 

integrating the oversight role that Congress had originally envisioned. It was also created with a 5-year 

sunset, indicating that Congress may have believed that a reporting requirement instituted for 

bureaucratic reasons did not necessarily need to become a permanent fixture of congressional 

oversight.

Conclusions

The reporting requirement imposed by Congress in section 904(h)(1) of the FY 2013 NDAA is nearing 

the end of its designated lifespan. Congress established that the report would sunset in FY 2018, 

suggesting that Congress always intended for the report to serve a specific, short-term purpose in 

assessing DoD’s integration of the DASD(DT&E) into its broader testing and evaluation process. The 

 

193 FY 2013 NDAA, Pub. L. No. 112-239, 126 Stat. 1868 (2013). 194 Ibid. 195 Ibid. 196 Ibid. 197 Under Secretary of Defense for Acquisition, Technology, and Logistics, 10 U.S.C. § 133. 198 FY 2013 NDAA, Pub. L. No. 112-239, Joint Explanatory Statement of the Committee of Conference, 

https://www.ngaus.org/sites/default/files/NDAA%20Conference%20Report.pdf. 199 Ibid. 200 Ibid. 201 Ibid. 
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original congressional timeframe is appropriate, and the report does not need to be extended beyond 

its current 5-year window. The report’s sunset date offers a useful moment to evaluate the issue once 

again without reflexively extending the report’s existence. 

The Section 809 Panel did not receive comments from DoD regarding this 

recommendation. 

Subrecommendation 24s: Repeal the statutory requirement for the Ticonderoga-Class 

Cruisers and Dock Landing Ships annual modernization report, FY 2015 NDAA, 1026(d).

Background

Paragraph (d) of Section 1026 of the FY 2015 NDAA established a reporting requirement to bolster 

congressional oversight of the Navy’s modernization of Ticonderoga-Class cruisers and dock landing 

ships. Section 1026 authorized the Navy to use funds from the Ship, Modernization, Operations, and 

Sustainment Fund (SMOSF) to modernize eleven Ticonderoga-Class cruisers and three Ticonderogaclass dock landing ships.202 The provision also detailed a series of requirements and limitations that the 

Navy was required to obey over the course of the modernization.203 To ensure that the modernization 

process adhered to congressional directives, Congress imposed a reporting requirement in paragraph 

(d) of Section 1026. The requirement directed the Secretary of the Navy to submit annual reports 

assessing the status of modernization efforts during each fiscal year that Ticonderoga-Class 

modernization was taking place.204 Congress specified a number of obligatory components for each 

report, including an overview of “the status of modernization efforts, including availability schedules, 

equipment procurement schedules, and by-fiscal year funding requirements;” a description of vessel 

readiness and operational status while undergoing modernization; a material condition assessment for 

each vessel undergoing modernization; lists of rotatable pool equipment across the entire class, as well 

as lists of non-rotatable pool equipment that had been removed from each vessel and justifications for 

the removal; and per-vessel cost projection statements illustrating the estimated obligations for the 

remainder of the modernization, as compared to remaining funds in the SMOSF.205 As a further 

consequence of the reports, Congress required the Secretary of the Navy to disclose any “material 

deviations” from projected per-vessel modernization costs within 30 days.206 The reporting 

requirements in paragraph (d) have not been amended since the FY 2015 NDAA.

Findings

Section 1026 of the FY 2015 NDAA represented an effort on the part of Congress to thwart the Navy’s 

potential decommissioning of a number of Ticonderoga-Class cruisers and dock landing ships. The 

dispute was rooted in the spending restrictions of the Budget Control Act of 2011, which prompted the 

Navy to announce that it would decommission seven Ticonderoga-class cruisers and two amphibious 

vessels to save $6 billion through FY 2017.207 In the face of congressional opposition to the proposal, the 

 

202 FY 2015 NDAA, Pub. L. No. 113-291, 128 Stat. 3490 (2014). 203 Ibid. 204 Ibid. 205 Ibid. 206 Ibid. 207 GAO, Military Capabilities: Navy Should Reevaluate Its Plan to Decommission the USS Port Royal, April 2014, accessed July 24, 2017, 

http://www.gao.gov/assets/670/662376.pdf. 
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Navy changed course and offered a revised plan to temporarily inactivate 11 of its 22 TiconderogaClass cruisers in order to modernize the ships.208 Congress remained skeptical, however, and feared 

that the Navy could use a temporary inactivation as a pretext for a permanent decommissioning.209

Congress responded by imposing constraints on the Navy’s modernization process for the 

Ticonderoga-class vessels through Section 1026, which ensured that modernization would proceed on a 

regular schedule without compromising the ability of the ships to rejoin the active fleet at any time.210

Congress signaled its intent with clarity in the conference report accompanying the FY 2015 NDAA, 

declaring that “we also expect the Secretary [of the Navy] to ensure that these ships are maintained in 

the inventory until the end [sic] their expected service lives, excluding time spent in a phased 

modernization status.”211 The reporting requirement itself was designed to provide Congress with the 

necessary information to ensure that the Navy was properly implementing the modernization in line 

with congressional intent; however, circumstances have changed since 2015. The Trump 

Administration’s stated goal to dramatically expand the size of the Navy has led naval officials to 

explore potential options for integrating the Ticonderoga-Class vessels back into the active fleet for a 

longer period of time.212 The direction of the Ticonderoga-Class program has shifted away from a clash 

between Congress and the Navy over the future of the program, and appears likely to return to a 

consensus in favor of an extended role in the active fleet. 

Conclusions

Congress imposed the Ticonderoga-Class modernization reporting requirement in Section 1026(d) of 

the FY 2015 NDAA in response to circumstances that have changed. The report represented part of a 

congressional effort to ensure that the Navy did not decommission a series of Ticonderoga-Class 

cruisers and dock landing ships under the pretext of temporary inactivation and modernization. At 

present, however, the Trump Administration is seeking expansion of the active fleet and as a result, the 

Navy appears less likely to pursue Ticonderoga-Class decommissioning. The report is outdated in light 

of this expansion. 

The Navy’s Office of Legislative Affairs concurred with the Section 809 Panel’s 

recommendation.213

Subrecommendation 24t: Repeal the statutory requirement for the Ballistic Missile Defense 

Systems annual preproduction assessment reports, FY 2015 NDAA, 1662(c)(2) and (d)(2).

Background

Paragraphs (c)(2) and (d)(2) of Section 1662 of the FY 2015 NDAA establish two reporting requirements 

to facilitate congressional oversight of DoD’s missile defense systems prior to production and 

 

208 Defense News, “US Navy’s Cruiser Problem – Service Struggles Over Modernization, Replacements,” July 7, 2014, accessed July 28, 

2018, http://www.defensenews.com/pentagon/2014/07/07/us-navy-s-cruiser-problem-service-struggles-over-modernizationreplacements/. 209 Ibid. 210 FY 2015 NDAA, Pub. L. No. 113-291, Joint Explanatory Statement of the Committee of Conference, https://www.armedservices.senate.gov/imo/media/doc/113-S1847-JES.pdf. 211 Ibid. 212 Breaking Defense, “More Maintenance $$ Gets Navy to 355 Ships Sooner: NAVSEA,” June 1, 2017, accessed January 5, 2018, 

https://breakingdefense.com/2017/06/more-maintenance-gets-navy-to-355-ships-sooner-navsea/. 213 Department of the Navy, Office of Legislative Affairs, email to Section 809 Panel staff, December 14, 2017. 
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deployment. The statutory language, which is classified as a note under 10 U.S.C. § 2431, sought to 

strengthen DoD’s testing and assessment procedures for ballistic missile defense systems by requiring 

“sufficient and operationally realistic testing” for each system before a final decision to approve 

production and deployment.214 To support that goal, the provision required that the Secretary receive 

two additional assessments before advancing the production and deployment of ballistic missile 

systems. Congress assigned the first assessment to the DOT&E, with a mandate to consider “the 

sufficiency, adequacy, and results of the testing of each covered system, including an assessment of 

whether the covered system will be sufficiently effective, suitable, and survivable when needed.”215 The 

second assessment was assigned to the Commander of the United States Strategic Command, with a 

mandate to perform “a military utility assessment of the operational utility of each covered system.”216

In both instances, Congress also created a reporting requirement for the DOT&E and the Commander 

of the U.S. Strategic Command to submit a summary of their assessments to Congress after submitting 

the assessments to the Secretary.

217 These reporting requirements in paragraphs (c)(2) and (d)(2) have 

not been amended since the FY 2015 NDAA.218

Findings

Congress hoped the required assessments in paragraphs (c) and (d) of Section 1662, as well as the fact 

that the Secretary was obligated to review them before advancing to the production phase, would 

impose further discipline on DoD’s missile defense programs by facilitating a more judicious decisionmaking process from testing and evaluation to production and deployment.219 The reason for the 

provision was congressional unease with the pace of DoD’s progression from ballistic missile 

development and testing to production, which had sparked concerns in multiple programs. For 

example, a GAO report in February 2016 asserted that DoD’s progress with its homeland missile 

defense program relied upon “a highly optimistic, aggressive schedule that overlaps development and 

testing with production activities, compromises reliability, extends risk to the warfighter, and risks the 

efficacy of flight testing.”220 The report followed a previous GAO analysis in April 2014, in which the 

agency concluded that DoD’s ground-based midcourse defense system suffered from “major 

disruptions” due to a series of test failures that occurred “in conjunction with a highly concurrent 

development, production, and fielding strategy.”221 GAO also identified further risk in DoD’s 

Redesigned Kill Vehicle program, which proposed to “[align] production decisions with flight 

testing.”222 GAO noted that it had issued recommendations to DoD revolving around “including 

sufficient schedule and resource margin in its test plan, and aligning production decisions with flight 

testing.”223 The agency also noted that DoD had largely concurred with the recommendations and 

 

214 FY 2015 NDAA, Pub. L. No. 113-291, 128 Stat. 3657 (2014). 215 Ibid. 216 Ibid. 217 Ibid. 218 Weapons Development and Procurement Schedules, 10 U.S.C. § 2431. 219 FY 2015 NDAA, Pub. L. No. 113-291, Joint Explanatory Statement of the Committee of Conference, https://www.armedservices.senate.gov/imo/media/doc/113-S1847-JES.pdf. 220 GAO, Missile Defense: Assessment of DoD’s Reports on Status of Efforts and Options for Improving Homeland Missile Defense, 

February 17, 2016, accessed June 22, 2017, http://www.gao.gov/assets/680/675263.pdf. 221 Ibid. 222 Ibid. 223 Ibid. 
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pledged to implement them.224 DoD had yet to implement several of these crucial recommendations by 

February 2016.225 As recently as May 2017, GAO concluded again that “the [ballistic missile defense] 

program is still operating at a self-imposed fast pace, as production and fielding of assets occurs 

despite the inability to thoroughly validate them due to testing delays.”226 DoD’s willingness to proceed 

with the production and deployment of ballistic missile systems before achieving testing goals 

continues to pose challenges for the department.

Conclusions

The ballistic missile preproduction reporting requirement that was imposed in Section 1662(c)(2) and 

(d)(2) of the FY 2015 NDAA is too limited and duplicative to truly address the problem. The provision 

merely requires the Secretary to review the reports from DOT&E and Strategic Command, with no 

imperative to adhere to their suggestions before advancing to production and deployment. The 

provision is also redundant with previously existing ballistic missile reporting requirements, 

particularly the reports at 10 U.S.C. § 223a(a) and 10 U.S.C. § 225(c), as well as Section 232 of the

FY 2002 NDAA. All of the reports focus on early-stage developments within ballistic missile programs. 

GAO analysis offers little evidence to support the idea that DoD has improved its processes in the 

period since the report was imposed. The duplicative nature and limited effect of the report fail to 

justify its continuation. 

MDA concurred with the Section 809 Panel’s recommendation,

227 but DOT&E dissented. 

DOT&E acknowledged that the Section 1662 (c)(2) report contained “some similarities in 

report content” with the other MDA reports, but argued that the report was uniquely 

“event-driven” in terms of acquisition milestones. The panel opted not to alter its 

recommendation in the belief that the redundancy in report content between this report 

and the other MDA reports outweighs the report’s value in terms of enhanced 

oversight.228 

 

224 Ibid. 225 Ibid. 226 GAO, Missile Defense: Some Progress Delivering Capabilities, But Challenges with Testing Transparency and Requirements 

Development Need to be Addressed, May 2017, accessed June 22, 2017, http://www.gao.gov/assets/690/684963.pdf. 227 Missile Defense Agency, phone call with 809 Panel Staff, November 29, 2017. 228 DOT&E, email to Section 809 Panel staff, December 8, 2017. 
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THE PANEL RECOMMENDS THE FOLLOWING STATUTORY REPORTING REQUIREMENTS 

BE PRESERVED SUBJECT TO THE EVERY 5 YEARS SUNSET REVIEW 

DESCRIBED IN RECOMMENDATION 23.

Subrecommendation 24u: Preserve the statutory requirement for the Director of 

Operational Test and Evaluation annual overview report, 10 U.S.C. § 139(h).

Background

10 U.S.C. § 139(h) establishes a reporting requirement for DoD’s operational test and evaluation (T&E)

activities. The reporting requirement was initially imposed in the FY 1984 NDAA, which created a new 

section 136a of Title 10 that later became section 139.229 The original statutory language of section 139 

established DOT&E to serve as the “principal adviser to the Secretary of Defense on operational test 

and evaluation” within DoD.230 The position was charged with overseeing all of DoD’ operational T&E

processes, as well as coordinating operational testing between agencies and evaluating the results of all 

operational tests.231 Additionally, the statute directed DOT&E to submit an annual report to Congress 

that provided a comprehensive summary of DoD’s operational T&E activities for each fiscal year.232 In

the subsequent 3 decades, the statutory basis for the position was subject to a large number of 

amendments, and the reporting requirement was expanded as well to encompass any waivers or 

deviations from testing and evaluation requirements that may have occurred in a given year.233

According to the current provision, the annual reports are due no later than January 31 of each year.234

Findings

Congress created the DOT&E position during a period of budget growth for DoD’s research budget. 

Funding for DoD’s RDT&E program surged in the 1980s as a result of the Reagan Administration’s 

military build-up, nearly doubling between FY 1980 and FY 1987.235 The reporting requirement likely 

constituted an effort on the part of Congress to enhance oversight of DoD’s T&E budget, in accordance 

with its larger funding commitment. In the subsequent 30 years, DoD’s RDT&E budget declined during 

the 1990’s, surged after the September 11, 2001 terrorist attacks, and then declined once more to a stable 

level at about $65 billion annually after FY 2013.236 Amidst these cycles, DOT&E has evolved into a 

crucial component of DoD’s T&E process. A 2015 GAO report concluded that less than 10 percent of all 

programs under the position’s jurisdiction between FY 2010 and FY 2014 were the subject of 

“significant disputes” with the Military Services, and that the position possessed “valid and 

substantive operational test-related concerns for each program reviewed.”237 GAO also detailed that 

disputes between DOT&E and the Military Services were resolved to DOT&E’s satisfaction, and that 

 

229 Section 1211, Department of Defense Authorization Act, 1984, Pub. L. No. 98-94, 97 Stat. 684 (1983). 230 Ibid. 231 Ibid. 232 Ibid. 233 Director of Operational Test and Evaluation, 10 U.S.C. § 139. 234 Ibid. 235 Congressional Research Service, Defense Research: A Primer on the Department of Defense’s Research, Development, Test and 

Evaluation (RDT&E) Program, July 14, 1999, accessed June 8, 2017, https://www.hsdl.org/?view&did=451511. 236 Congressional Research Service, Department of Defense Research, Development, Test, and Evaluation (RDT&E): Appropriations 

Structure, December 13, 2016, accessed June 8, 2017, https://fas.org/sgp/crs/natsec/R44711.pdf. 237 Government Accountability Office, DOD Operational Testing: Oversight Has Resulted in Few Significant Disputes and Limited Program 

Cost and Schedule Increases, June 2015, accessed June 8, 2017, http://www.gao.gov/assets/680/670565.pdf. 
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those resolutions caused “limited cost and schedule impacts to the programs.”238 GAO opted not to 

make any recommendations regarding DOT&E’s oversight performance, indicating that the agency 

was satisfied with the position’s role and authority.239

Conclusions

The operational T&E reporting requirement at 10 U.S.C. § 139(h) is critical for the ability DOT&E to 

fulfill the office’s mission. The position occupies an important role in DoD’s coordination efforts 

throughout its test and evaluation budget, and the report itself is a central aspect of the office’s 

functions. In recent years, DOT&E has made strides in terms of producing greater discipline and 

efficiency in program T&E activities. The issue remains a priority for DoD, and the existence of the 

report assists with both the office’s internal success and the ability of Congress to exercise proper 

oversight. 

DOT&E concurred with the Section 809 Panel’s recommendation.240

Subrecommendation 24v: Preserve the statutory requirement for Naval Vessel Construction

annual strategic plan report, 10 U.S.C. § 231.

Background

10 U.S.C. § 231 establishes a reporting requirement for long-term naval vessel construction in support 

of U.S. strategic planning. The reporting requirement was initially imposed in the FY 2003 NDAA, 

which created 10 U.S.C. § 231.

241 The original statutory language of section 231 directed the Secretary to 

submit an annual report to Congress regarding the integration of long-range naval vessel construction 

into the broader strategic outline of U.S. defense policy.242 The statute required the report, titled Annual 

Naval Vessel Construction Plan, to describe “a plan for the construction of combatant and support vessels 

for the Navy” to a 30-year time horizon.243 The report would contain a detailed construction program, 

as well as the projected funding levels and procurement strategies necessary to achieve the program.244

The report was also statutorily obligated to support the framework outlined by the official national 

security strategy report or the Quadrennial Defense Review.

245 If DoD concluded that the budget for a 

given fiscal year failed to provide the necessary funding to maintain naval vessel construction in 

accordance with the long-range construction report, the statute further required that the report must 

specify “the risks associated with the reduced force structure of naval vessels that will result from 

funding naval vessel construction at such level.”246 Subsequent amendments have added further 

elements to the Annual Naval Vessel Construction Plan, such as an estimated total cost of construction 

 

238 Ibid. 239 Ibid. 240 Director of Operational Test and Evaluation, email to Section 809 Panel staff, November 28, 2017. 241 FY 2003 NDAA, Pub. L. No. 107-314, 116 Stat. 2639 (2002). 242 Ibid. 243 Ibid. 244 Ibid. 245 Ibid. 246 Ibid. 
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for each vessel and a requirement for CBO evaluation of the plan.247 The original components of the 

plan remain in statutory effect. 

Findings

The reporting requirement at 10 U.S.C. § 231 originated at the start of the 21st Century. Its precursor 

was a one-time provision in the FY 2000 NDAA, which required DoD to submit a 30-year naval 

construction plan in 2000.248 That plan was the first 30-year overview to be produced by DoD. Although

similar plans were not submitted in 2001 or 2002, the process resumed with the permanent statutory 

requirement that was approved in the FY 2003 NDAA and codified at 10 U.S.C. § 231.249 After altering 

the requirement in the FY 2011 NDAA to request quadrennial reports, Congress reversed course the 

following year and reaffirmed its desire for annual reports.250 That congressional decision reflected a 

general recognition of the report’s positive contribution to long-range naval planning.251 For example, 

the most recent report highlighted the challenge in joining short-term budgetary realities to long-range 

strategic planning. The Congressional Research Service estimated that, according to the long-range 

naval construction plan submitted by the Secretary alongside DoD’s proposed FY 2018 budget, the 

Navy would need to add more than 50 additional ships to the plan to achieve the broader fleet goal and 

maintain it through the 30-year period.252 The cost of achieving this objective would range between $4.6 

billion and $5.1 billion annually in additional shipbuilding funds over the course of the entire 30-year 

period.253 The analysis was made possible by the report, to the benefit of both congressional leaders and 

DoD, which can now engage with Congress to reconcile the department’s plans with congressional 

intent. Such a process demonstrates the value of the report, operating as intended. 

Conclusions

The naval vessel construction reporting requirement at 10 U.S.C. § 231 has proven its value since its 

implementation in 2003. The report is well-designed to provide Congress with the information that it 

needs to make long-term budgetary judgments regarding naval construction programs. The report also 

bolsters DoD’s strategic framework for naval planning. In slightly over a decade, the report has 

performed admirably and earned broad support from stakeholders. The report offers demonstrated 

benefits and should be preserved.

The Navy’s Office of Legislative Affairs concurred with the Section 809 Panel’s 

recommendation.254

 

247 Budgeting for Construction of Naval Vessels: Annual Plan and Certification, 10 U.S.C. § 231. 248 Congressional Research Service, Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, June 7, 2017, 

accessed June 9, 2017, https://fas.org/sgp/crs/weapons/RL32665.pdf. 249 Ibid. 250 Ibid. 251 Mackenzie Eaglen, “Pentagon’s Aviation Plan Headed for a Dead Stick Landing,” American Enterprise Institute, May 31, 2015, accessed 

June 12, 2017, https://www.aei.org/publication/pentagon-aviation-report-dead-stick-landing/. 252 Congressional Research Service, Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, June 7, 2017, 

accessed June 9, 2017, https://fas.org/sgp/crs/weapons/RL32665.pdf. 253 Ibid. 254 Department of the Navy, Office of Legislative Affairs, email to Section 809 Panel staff, December 14, 2017. 
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Subrecommendation 24w: Preserve the statutory requirement for the Director of 

Operational Test and Evaluation annual program report, 10 U.S.C. § 2399(g).

Background

10 U.S.C. § 2399(g) establishes a reporting requirement that is connected to a larger reporting 

requirement at 10 U.S.C. § 139(h). The reporting requirement at 10 U.S.C. § 139(h) directed DOT&E to 

submit an annual report to Congress that provided a comprehensive summary of DoD’s operational 

test and evaluation activities for each fiscal year.255 The reporting requirement at 10 U.S.C. § 2399(g) 

created an additional component of that annual report by requiring DOT&E to include greater detail 

about each program described within the report. The separate reporting requirement was initially 

imposed in the FY 1990–1991 NDAA, which created 10 U.S.C. § 2399.256 As a part of the section, which 

governed the progression of new programs in the framework of operational T&E procedures, a new 

paragraph (g) was created that added a further obligation to the annual report of section 139(h).257

DOT&E would subsequently be required to detail “the status of test and evaluation activities” for each 

program in the report, and to compare that status with the previously-approved program master 

plan.258 The director was also required to note the existence of any waivers that had been granted in 

accordance with the test and evaluation procedures of the program.259 There were no successive 

amendments to the report requirement, and 10 U.S.C. § 2399(g) remains unchanged in its current form 

from the original statute.

Findings

Due to the fact that 10 U.S.C. § 2399(g) establishes a reporting requirement within the annual report 

imposed by 10 U.S.C. § 139(h), any evaluation of Section 2399(g) should take place within the context of 

the report in Section 139(h). The success of that broader report establishes the credibility of 10 U.S.C.

§ 2399(g) and suggests that the two reports should be viewed together as a positive element in the T&E

process. 

Conclusions

The operational T&E reporting requirement at 10 U.S.C. § 2399(g) modifies the broader report at 

10 U.S.C. § 139(h). By requiring additional information in the underlying report, Section 2399(g) serves 

less as its own reporting requirement than as an appendage to an existing report with a record of 

success. The reporting requirement at 10 U.S.C. § 2399(g) should be considered in tandem with the 

primary report in Section 139, and Congress should preserve this reporting requirement.

DOT&E concurred with the Section 809 Panel’s recommendation.260 

 

255 Section 1211FY 1984 NDAA, Pub. L. No. 98-94, 97 Stat. 684 (1983). 256 Section 802, FYs 1990-1991 NDAA, Pub. L. No. 101-189, 103 Stat. 1485 (1989). 257 Ibid. 258 Ibid. 259 Ibid. 260 Director of Operational Test and Evaluation, email to Section 809 Panel staff, November 28, 2017. 
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THE FOLLOWING STATUTORY REPORTING REQUIREMENTS SHOULD BE 

MAINTAINED UNDER THE CURRENT 2021 TERMINATION DATE.

Subrecommendation 24x: Terminate in 2021 the statutory requirement for the Ballistic 

Missile Defense Programs annual acquisition baselines report, 10 U.S.C. § 225(c).

Background

10 U.S.C. § 225(c) establishes a reporting requirement for DoD “acquisition baselines” regarding 

ballistic missile defense programs. The reporting requirement was initially imposed in the FY 2012 

NDAA, which created a new 10 U.S.C. § 225.

261 The original statutory language of Section 225 included 

paragraph (c), which directed the MDA director to submit annual reports to Congress regarding 

“acquisition baselines” that had been created and defined by paragraphs (a) and (b) of the same 

section.262 The acquisition baselines represented broad frameworks outlining the acquisition paths for 

program and major subprogram elements of ballistic missile defense systems. As established by the 

statute, the baselines detailed comprehensive schedules, technical descriptions of capabilities and 

requirements, cost estimates, and test baselines.263 MDA was obligated to submit its annual report to 

Congress by February 15 of each year, with the first report presenting each acquisition baseline and all 

subsequent reports providing updates concerning any new acquisition baselines and any changes to 

existing acquisition baselines.264 There have been no subsequent amendments to the report 

requirement, and 10 U.S.C. § 225(c) remains unchanged in its current form from the original statute.265 

Findings

The reporting requirement at 10 U.S.C. § 225(c) arose due to congressional concern that MDA 

possessed excessive flexibility during the early stages of ballistic missile acquisition planning and 

production. As a part of the MDA’s creation in its contemporary form in 2002, the agency received an 

unusually large degree of latitude in its acquisition policies to emphasize speed over traditional 

oversight and deliver missile defense programs on an expedited schedule.266 The purpose of this 

increased latitude was to accelerate the pace of ballistic missile programs by deferring traditional 

acquisition oversight until the programs had advanced to such an extent that they were suitable for 

transition to a military service.267 Congressional anxiety later emerged, however, regarding the lack of 

accountability in early-stage ballistic missile acquisition policies.268 Congress acted to remedy the 

perceived lack of oversight by enacting 10 U.S.C. § 225(c) in the FY 2012 NDAA, which imposed a more 

stringent framework on the MDA’s ballistic missile program acquisition policies and required their 

disclosure to Congress.269 Since the advent of the report, acquisition oversight and transparency have 

improved for the MDA’s ballistic missile programs and subprograms. In May 2017, GAO noted that a 

combination of congressional and agency actions had introduced greater accountability into the early-

 

261 FY 2012 NDAA, Pub. L. No. 112-81, 125 Stat. 1337 (2011). 262 Ibid. 263 Ibid. 264 Ibid. 265 Acquisition Accountability Reports on the Ballistic Missile Defense System, 10 U.S.C. § 225. 266 Government Accountability Office, Missile Defense: Some Progress Delivering Capabilities, but Challenges with Testing Transparency 

and Requirements Development Need to Be Addressed, May 2017, accessed June 1, 2017, https://www.gao.gov/assets/690/684963.pdf. 267 Ibid. 268 Ibid. 269 Ibid. 
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stage acquisition process.270 GAO also stated that the agency had failed to adopt all of its 

recommendations, and that its current approach to acquisition failed to strike the proper balance 

between “timeliness, affordability, reliability, and effectiveness.”271

Conclusions

The ballistic missile acquisition baseline reporting requirement at 10 U.S.C. § 225(c) appears to help 

address an important congressional concern. The report has proven valuable in supporting 

congressional efforts to enhance the transparency of the MDA’s early-stage ballistic missile acquisition 

policies. Those efforts have achieved some initial successes (although more remains to be done). The 

report also overlaps with several other reports, specifically 10 U.S.C. § 223a(a), Section 232 of the

FY 2002 NDAA, and Section 1662 of the FY 2015 NDAA, all of which focus on different elements of the 

early-stage ballistic missile acquisition process. Unlike those reports, the acquisition baselines 

contained within 10 U.S.C. § 225(c) adopt a comprehensive perspective and are directed at MDA itself, 

rather than instructing other offices to evaluate specific aspects of MDA programs. The report covers a 

range of areas and provides MDA’s perspective directly to Congress. 10 U.S.C. § 225(c) is better suited 

than its overlapping reports to serve as a core MDA report in enhancing congressional oversight. The 

report’s success thus far and its comprehensive scope both serve to support its continuation to solidify 

recent improvements. The reporting requirement is justified at present and should be maintained 

through its scheduled termination date in 2021, when it can be further evaluated based upon MDA’s 

ballistic missile acquisition performance at that time.

MDA concurred with the Section 809 Panel’s recommendation.272 

Subrecommendation 24y: Terminate in 2021 the statutory requirement for Depot-Level 

Maintenance biennial capability requirements report, 10 U.S.C. § 2464(d).

Background

10 U.S.C. § 2464(d) establishes a reporting requirement for the Secretary to submit to Congress an 

assessment of depot-level maintenance and repair capability requirements for each armed service. The 

reports are prepared every 2 years, and each report evaluates depot-level capability requirements for 

the following fiscal year. The reporting requirement was initially imposed in the FY 2012 NDAA, 

which created a new paragraph (e) of Section 2464.273 The new statutory text directed the Secretary to 

submit a biennial report to Congress identifying “the core depot-level maintenance and repair 

capability requirements and sustaining workloads” for each of the armed forces except for the Coast 

Guard.274 Congress also directed the report to describe “the corresponding workloads necessary to 

sustain core depot-level maintenance and repair capability requirements,” as well as “a detailed 

rationale for the shortfall and a plan either to correct, or mitigate, the effects of the shortfall” in any 

situation where “core depot-level maintenance and repair capability requirements exceed or are 

expected to exceed sustaining workloads.”275 The reporting requirement has not been amended since its 

 

270 Ibid. 271 Ibid. 272 Missile Defense Agency, phone call with Section 809 Panel staff, November 29, 2017. 273 FY 2012 NDAA, Pub. L. No. 112-81, 125 Stat. 1368 (2011). 274 Ibid. 275 Ibid. 
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creation in the FY 2012 NDAA, although it was shifted to a new position as paragraph (d) of 

Section 2464 in the FY 2013 NDAA.276

Findings

The reporting requirement at 10 U.S.C. § 2464(d) arose because Congress was determined to preserve 

the effectiveness of military depots. Since 1984, Congress has mandated that DoD maintain a “core 

depot-level maintenance and repair capability” that cannot be contracted out to private contractors.277

DoD is also required to ensure that military depots receive the necessary assignment of workload to 

ensure that capabilities are preserved during peacetime and prepared for unexpected mobilizations or 

emergencies.278 The reporting requirement at 10 U.S.C. § 2464(d) was designed to provide Congress 

with the necessary information to exercise proper oversight of DoD’s depot-maintenance policies. 

Unlike a related report at 10 U.S.C. § 2466(d), which focuses primarily on funding levels, the report at 

10 U.S.C. § 2464(d) adopts a broader approach and evaluates capability requirements, workload 

shortfalls, and remedial policies. Since the report’s inception, DoD has struggled to comply with the 

requirements established by Congress. Although the reports have partially complied by providing 

adequate data regarding depot-level maintenance requirements and the planned workload to meet the 

requirements, they have consistently failed to offer “required information on the rationale” for 

workload shortfalls that would prevent the department from meeting core depot requirements.279 DoD 

has described its depot-level maintenance capability requirements properly, but it has neglected to 

explain the reasons underlying its inability to provide sufficient resources to meet those requirements. 

This element is a core aspect of the requirement, because it is fundamental to determining the 

effectiveness of DoD’s depot maintenance policies. GAO discovered data errors in DoD’s 2014 report 

that prompted a call for more “accurate and complete” reports in the future.280 In its evaluation of 

DoD’s 2016 biennial report, GAO identified the same problems: only partial compliance with the three 

core components of the report; inaccurate information for the Missile Defense Agency’s depot-level 

maintenance capability requirements; and flawed guidance to reporting agencies that undermined 

their ability to provide the Secretary with accurate information for the report.281 GAO recommended 

that Congress expand the scope of the information subject to the reporting requirement, and that DoD 

update DoDI 4151.20 to enhance the quality of the information being supplied by reporting agencies.282

Conclusions

Despite its flaws, the depot maintenance and repair capability reporting requirement at 10 U.S.C.

§ 2464(d) serves a useful purpose. Depot maintenance is a vital issue, and the report has strengthened 

congressional oversight over DoD’s depot-level planning with the information that DoD has been able 

to successfully disclose. While the report has failed to achieve all of its aims—particularly in its attempt 

to require DoD to properly justify workload shortfalls regarding depot maintenance—the need for an 

improved DoD response to the report is more compelling than the argument for repeal. As long as the 

 

276 FY 2013 NDAA, Pub. L. No. 112-239, 126 Stat. 1695 (2013), http://uscode.house.gov/statviewer.htm?volume=126&page=1694#. 277 GAO, Depot Maintenance: Improvements to DOD’s Biennial Core Report Could Better Inform Oversight and Funding Decisions, 

November 2016, accessed July 24, 2017, http://www.gao.gov/assets/690/681260.pdf. 278 Ibid. 279 Ibid. 280 Ibid. 281 Ibid. 282 Ibid. 
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report can demonstrably deliver greater transparency for DoD depot maintenance policy, its 

continuation can be justified through its 2021 termination date. Additionally, the report at 10 U.S.C.

§ 2464(d) has proven to be more successful than its related and overlapping report at 10 U.S.C.

§ 2466(d), which focuses more narrowly on depot funding and experienced even more grave flaws in 

the integrity of its data.283

The Office of the Assistant Secretary of Defense for Logistics & Material Readiness 

concurred with the Section 809 Panel’s recommendation.284

Subrecommendation 24z: Terminate in 2021 the statutory requirement for the National 

Technology and Industrial Base annual policy overview report, 10 U.S.C. § 2504.

Background

10 U.S.C. § 2504 establishes a reporting requirement for DoD’s strategy to maintain the nation’s 

technology and industrial base. The reporting requirement was initially imposed in the FY 1997 

NDAA, which created a new 10 U.S.C § 2504.285 The original statutory language of Section 2504 

directed the Secretary to submit an annual report to Congress describing DoD’s departmental 

guidance, selected assessments, and programs in support of the national security strategy for the 

national technology and industrial base.286 An amendment in the FY 2013 NDAA added a component

that required DoD to prepare a description of the “mitigation strategies” and other policies that it 

planned to implement in order to eliminate vulnerabilities within the national technology and 

industrial base.287 10 U.S.C. § 2504 has not been subject to any further amendment since the FY 2013 

NDAA.288

Findings

The reporting requirement at 10 U.S.C. § 2504 is rooted in the same unease over the health of America’s 

defense industrial base that has concerned policymakers since the end of the Cold War.289 Although

DoD supported the post-Cold War consolidation of the defense industrial base for much of the 1990’s, 

the rapid contraction and transformation of the sector eventually sparked anxiety among defense 

officials and members of Congress.290 By 1997, both Congress and DoD signaled increasing alarm that 

the capabilities of the defense industrial base could be weakened by the ongoing evolution of the 

defense sector.291 The reporting requirement at 10 U.S.C. § 2504 likely gained support in this context as 

Congress sought to assess DoD’s ongoing strategy to safeguard the defense industrial base. The

FY 2013 NDAA amendment, which compelled DoD to provide even more information in the report, 

 

283 GAO, Depot Maintenance: Persistent Deficiencies Limit Accuracy and Usefulness of DoD’s Funding Allocation Data Reported to 

Congress, November 2005, accessed June 29, 2017, http://www.gao.gov/assets/250/248595.pdf. 284 Office of the Assistant Secretary of Defense for Logistics & Material Readiness, email to 809 Panel Staff, November 8, 2017. 285 FY 1997 NDAA, Pub. L. No. 104-201, 110 Stat. 2614 (1996). 286 Ibid. 287 FY 2013 NDAA, Pub. L. No. 112-239, 126 Stat. 2063 (2013). 288 Annual Report to Congress, 10 U.S.C. § 2504. 289 For the remainder of this analysis, the terms “national technology and industrial base” and “defense industrial base” will be used 

interchangeably. Congressional Research Service, Defense Primer: U.S. Defense Industrial Base, December 14, 2016, accessed June 6, 

2017, https://fas.org/sgp/crs/natsec/IF10548.pdf. 290 Kenneth Flamm, “Post-Cold War Policy and the U.S. Defense Industrial Base,” The Bridge, 35, no. 1 (2005), 5-12, accessed January 5, 

2018, https://www.nae.edu/File.aspx?id=7297&v=d611c600. 291 Ibid. 
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arrived in a similar context. The defense industrial base confronted the twin challenges of declining 

defense spending and the budgetary constraint of sequestration due to the Budget Control Act of 

2011.292 The amendment also required DoD to develop a national security strategy for the national 

technology and industrial base, reflecting congressional intent to adopt an even more assertive 

oversight posture in regards to the defense industrial base.293 Several years later, the broader conditions 

surrounding the defense sector remain volatile. The Trump Administration has endorsed a sizeable 

increase in the defense budget and calls to end the sequestration caps on defense spending are growing 

among members of Congress.294 The defense industrial base reporting requirement is designed to 

ensure that DoD possesses a strategy to navigate this uncertainty in the defense sector, and that 

Congress is capable of evaluating the strategy’s reliability. 

Conclusions

Congress created the reporting requirement at 10 U.S.C. § 2504 in order to address a critical policy 

dilemma that remains ongoing: the post-Cold War decline of America’s traditional defense industrial 

base. The transformation of the defense industrial sector shows no signs of abating, and both Congress 

and DoD are correct to use the report as one tool for adjusting to the uncertainty of the sector. The 

report serves an important purpose and should maintain the December 2021 termination date for the 

reporting requirement.

The Office of Manufacturing and Industrial Base Policy dissented from the Section 809

Panel’s recommendation. MIBP agreed with the reasoning in regard to the report, but

the office requested that the reporting requirement be made permanent, rather than 

maintained through December 2021.295 After receiving this comment, the Section 809

Panel opted not to alter its recommendation in the belief that further review of the 

report’s efficacy in 2021 will be a valuable means to assess its ongoing usefulness to the 

department. 

In Section 6 of this report, the Section 809 Panel has articulated its own perspective on 

the reporting requirement’s proper role regarding the defense industrial base and

proposed amendments to the report at 10 U.S.C. § 2504. 

Subrecommendation 24aa: Terminate in 2021 the statutory requirement for the Distribution 

of Chemical and Biological Agents to Non-Federal Entities annual overview report, FY 2008 

NDAA, 1034(d).

Background

Section 1034(d) of the FY 2008 NDAA establishes a reporting requirement regarding DoD’s distribution 

of chemical agents to nonfederal entities for purposes of scientific testing. Section 1034 authorized the 

 

292 Congressional Research Service, Defense Primer: U.S. Defense Industrial Base, December 14, 2016, accessed June 6, 2017, 

https://fas.org/sgp/crs/natsec/IF10548.pdf. 293 FY 2013 NDAA, Pub. L. No. 112-239, Joint Explanatory Statement of the Committee of Conference, 

https://www.ngaus.org/sites/default/files/NDAA%20Conference%20Report.pdf. 294 Joe Gould, “Hawkish Lawmakers Frustrated by Budget Caps Press for Repeal,” Defense News, May 15, 2017, accessed January 5, 2018, 

http://www.defensenews.com/articles/hawkish-lawmakers-frustrated-by-budget-caps-press-for-repeal. 295 Office of Manufacturing and Industrial Base Policy, email to Section 809 Panel staff, November 9, 2017. 
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Secretary to provide “small quantities of a toxic chemical or precursor” to states, municipalities or 

private organizations in order to promote the “development or testing, in the United States, of material 

that is designed to be used for protective purposes.”296 Congress instructed the Secretary to estimate the 

cost of the distribution and receive an advance payment from the entity before allowing the transaction 

to proceed.297 In paragraph (d) of the provision, Congress created an annual reporting requirement for 

the Secretary to disclose each instance in which the chemical distribution authority was used during 

the previous calendar year.298 Specifically, Congress required the report to include “a description of 

each use of the authority and [to] specify what material was made available and to whom it was made 

available.”299 The reporting requirement was amended and broadened in the FY 2017 NDAA to include 

“any biological select agent or toxin for the development or testing of any biodefense technology.”300 As 

a result, the Secretary was required to disclose identical information for any distribution of biological 

agents as had previously been required for chemical agents.301 The amendment also declared that the 

reporting requirement would terminate on January 31, 2021.302

Findings

The reporting requirement at Section 1034(d) was not present in the first version of the provision. 

Although the House version of the FY 2008 NDAA contained the authority for the Secretary to provide 

“small quantities of toxic chemicals” to nonfederal entities, negotiations with the Senate yielded the 

reporting requirement as an addition to the House language.303 Thus, from the very inception of the 

provision, Congress actively decided that a reporting requirement was necessary to ensure proper 

oversight of DoD’s use of the authority. Biological agents were incorporated into the section 1034 

authority at the end of 2016 due to longstanding congressional concerns that DoD was failing to 

“successfully develop medical countermeasures to respond to biological incidents,” which produced a 

series of critical hearings and a congressionally mandated GAO report to review DoD’s biological 

countermeasures.304 However, the FY 2017 NDAA simultaneously broadened the reporting 

requirement in Paragraph (d) to include biological agents and created a sunset date for the requirement 

after four years. Although congressional intent regarding the reporting requirement is uncertain, it is 

plausible that Congress sought to delay a final decision on the report to evaluate DoD’s use of its 

newfound authority for biological agents.

Conclusions

The chemical and biological agent reporting requirement that was imposed in Section 1034(d) of the

FY 2008 NDAA enhances congressional oversight on an issue of the utmost importance. It is evident 

that DoD’s distribution of chemical or biological agents to other entities for testing must be transparent 

to ensure that the system is not vulnerable to errors of judgment or ineptitude. Congress is correct to 

 

296 FY 2008 NDAA, Pub. L. No. 110-181, 122 Stat. 308 (2008). 297 Ibid. 298 Ibid. 299 Ibid. 300 FY 2017 NDAA, Pub. L. No. 114-328, 130 Stat. 2393 (2016). 301 Ibid. 302 Ibid. 303 FY 2008 NDAA, Pub. L. No. 110-181, Joint Explanatory Statement of the Committee on Conference, 

https://www.gsa.gov/portal/mediaId/184487/fileName/National_Defense_Authorization_Act_2008.action. 304 GAO, Biological Defense: DOD Has Strengthened Coordination on Medical Countermeasures but Can Improve Its Process for Threat 

Prioritization, May 2014, accessed June 27, 2017, https://www.gao.gov/assets/670/663212.pdf. 
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assert its prerogatives and scrutinize DoD’s use of such a sensitive authority. The objective of the 

reporting requirement is justified on substantive grounds. In the FY 2017 NDAA, Congress instituted 

its own, separate termination date in January 2021 for this reporting requirement. The Section 809 Panel 

supports the implied congressional intent to evaluate the reporting requirement through 2021 before 

making a final determination regarding its permanence. 

The Office of the Assistant Secretary of Defense for Nuclear, Chemical and Biological 

Defense Programs concurred with the Section 809 Panel’s recommendation.305 

Subrecommendation 24ab: Terminate in 2021 the statutory requirement for the Research 

and Development in Defense Laboratories annual funding report, FY 2009 NDAA, 219(c).

Background

Section 219(c) of the FY 2009 NDAA establishes a reporting requirement in regards to additional 

funding for research and development in defense laboratories. Section 219 permitted the Secretary to 

authorize the directors of defense laboratories to use “an amount of funds equal to not more than three 

percent of all funds available to the defense laboratory” in order to promote research and development 

in their laboratories.306 Congress granted the new funding authority in support of three agendas: basic 

and applied research for military missions; the “transition of technologies” from the laboratory to 

operational use; and laboratory workforce development activities.307 Congress also directed the

Secretary to submit an annual report that would encompass six distinct elements: a description of the 

mechanisms that DoD established to distribute funding to defense laboratories, the total amount of 

funding distributed to each laboratory, a description of the investments made by each laboratory using 

funds authorized by the provision, an analysis of any improvements in laboratory performance as a 

result of the additional funding, an assessment of whether the research conducted with funds under 

the authority had contributed to the development of “needed military capabilities,” and any proposals 

to modify DoD’s distribution mechanisms to enhance the impact of funding under the authority.308 In 

its original form, the entire provision was set to expire on October 1, 2013.309 Subsequent amendments 

made the authority under the provision permanent, permitted the use of funding for “minor military 

construction of the laboratory infrastructure,” altered the funding amount from a ceiling of 3 percent of 

laboratory funds to a range of 2 to 4 percent, and allowed laboratory directors to charge fees in certain 

circumstances in order to obtain funds.310 The scope of the reporting requirement itself was simplified 

in the FY 2010 NDAA to include merely “a report on the use of the authority under subsection (a) 

during the preceding year.”311

Findings

Since its approval, Section 219 has become an important mechanism for DoD funding of certain types 

of laboratory research. Section 219 is one of two programs available to DoD to fund defense laboratory-

 

305 OASD(NCB-CB), email to Section 809 Panel staff, November 8, 2017. 306 FY 2009 NDAA, Pub. L. No. 110-417, 122 Stat. 4389 (2008). 307 Ibid. 308 Ibid. 309 Ibid. 310 Research and Development Projects, 10 U.S.C. § 2358 311 FY 2010 NDAA, Pub. L. No. 111-84, 123 Stat. 2660 (2009).
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initiated research, alongside the In-House Laboratory Independent Research program.312 In September 

2016, the Acting Director of the U.S. Army Research Laboratory (ARL) testified before Congress that 

the Section 219 authority provided the ARL with “an agile and fast capability to maximize our potential 

for the discovery, innovation and transition of leading-edge foundational research in support of 

strategic land-power dominance.”313 He asserted that the ARL “benefited greatly” from the authority, 

which supported the maintenance of “world-class laboratories” and offered the ability to “attract, train,

and then retain the best and brightest engineers and scientists our country has to offer.”314 At the same 

hearing, the Acting Director of Research at the U.S. Naval Research Laboratory (NRL) echoed the 

ARL’s sentiments, declaring that the NRL “fully supports” the use of Section 219 authority for minor 

construction.315 In all likelihood, these positive assessments bolstered congressional support for the 

authority, contributing to Congress’s decision to increase the ceiling on Section 219 funds from 

3 percent to 4 percent of a defense laboratory’s budget in the FY 2017 NDAA.316 The provision appears 

to be functioning as intended, and recent congressional actions and DoD statements indicate that it 

remains popular among stakeholders.

Conclusions

The defense laboratories reporting requirement that was imposed in Section 219(c) of the FY 2009 

NDAA concerns a funding authority that has rapidly gained popularity among stakeholders. The 

laboratories themselves have expressed support for the authority and Congress has imposed a 

minimum annual funding level, as well as a range for annual funding subject to the discretion of the 

services. Despite its popularity, the existence of an annual funding range does suggest the need for a 

degree of congressional oversight to ensure that funding decisions are aligned rationally with 

department priorities. For these reasons, the status quo should be maintained regarding the 

2021 termination date. At that point, Congress can evaluate the operation of the funding authority and 

assess whether continued oversight is necessary, or whether the program is working well enough to be 

released from the need for a report.

The Section 809 Panel did not receive comments from DoD regarding this 

recommendation. 

 

312 GAO, Federal Research: Information on DOE’s Laboratory-Directed Research and Development Program, April 2016, accessed June 27, 

2017, http://www.gao.gov/assets/680/676432.pdf. 313 Philip Perconti, Testimony Before the Emerging Threats and Capabilities Subcommittee of the House Armed Services Committee, 

September 28, 2016, accessed January 5, 2018, http://www.defenseinnovationmarketplace.mil/resources/HHRG-114-AS26-WstatePercontiP-20160928.pdf. 314 Ibid. 315 Edward R. Franchi, Testimony Before the Emerging Threats and Capabilities Subcommittee of the House Armed Services Committee, 

September 28, 2016, accessed January 5, 2018, http://www.defenseinnovationmarketplace.mil/resources/HHRG-114-AS26-WstateFranchiE-20160928.pdf. 316 FY 2017 NDAA, Pub. L. No. 114-328, 130 Stat. 2047 (2016). 
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Implementation

Legislative Branch

§ Immediately repeal the following 20 reporting requirements: 

- 10 U.S.C. §§ 196(d) and (e)

- 10 U.S.C. § 223a(a)

- 10 U.S.C. § 229

- 10 U.S.C. § 231a

- 10 U.S.C. § 238(a)

- 10 U.S.C. § 2228(e)

- 10 U.S.C. § 2275

- 10 U.S.C. § 2276(e)

- 10 U.S.C. § 2466(d)

- 10 U.S.C. § 7310(c)

- 10 U.S.C. § 10543(a)

- 10 U.S.C. § 10543(c)

- FY 2002 NDAA, 232(h)(3) 

- FY 2007 NDAA, 122(d)(1) 

- FY 2007 NDAA, 1017(e) 

- FY 2009 NDAA, 1047(d) 

- FY 2011 NDAA, 1217(i) 

- FY 2013 NDAA, 904(h) 

- FY 2015 NDAA, 1026(d) 

- FY 2015 NDAA, 1662(c)(2) and (d)(2) 

§ Preserve the following three reporting requirements (subject to the every 5 years sunset review 

described in Recommendation 23):

- 10 U.S.C. § 139(h)

- 10 U.S.C. § 231

- 10 U.S.C. § 2399(g) 

§ Maintain the following five reporting requirements through the current December 2021 

termination deadline:

- 10 U.S.C. § 225(c)

- 10 U.S.C. § 2464(d) 

- 10 U.S.C. § 2504

- FY 2008 NDAA, 1034(d) 

- FY 2009 NDAA, 219(c)
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Executive Branch

§ No Executive Branch changes are required.

Implications for Other Agencies

§ There are no cross-agency implications for this recommendation.
Report of the Advisory Panel on Streamlining and Codifying Acquisition Regulations

Volume 1 of 3 | January 2018

Statutory Reporting Requirements Volume 1

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