The Senate returned from its Memorial Day recess this week. Among the bills that it may begin debating is H.R. 1540, the FY 2012 National Defense Authorization Act. Introduced by Rep. Howard "Buck" McKeon (R-CA-25th), Chairman of the House Committee on Armed Services , on 04/14/2011, HR 1540 was amended during a "markup" session of the Committee on 05/17/2011. During this session, amendments offered by Rep. Nikki Tsongas (D-MA-5th)  (Sec. 1638)and Rep. Chris Gibson (R-NY-20th), (Sec. 1647) were adopted:




    (a) Additional, Discretionary Budget Authority- In the budget submitted to Congress under section 1105 of title 31, United States Code, for fiscal year 2012, the President requested $30,258,000 for Materials Technology. Of the amounts authorized to be appropriated by section 201, as specified in the corresponding funding table in division D, the Secretary of the Army shall obligate an additional $4,000,000 to develop innovative nanomaterials and nanomanufacturing processes for warfighter systems in furtherance of national security objectives.



    (a) Additional, Discretionary Budget Authority- In the budget submitted to Congress under section 1105 of title 31, United States Code, for fiscal year 2012, the President requested $80,977,000 for research, development, test, and evaluation, Army, for university research initiatives. Of the amounts authorized to be appropriated by section 201, as specified in the corresponding funding table in division D, the Secretary of Defense shall obligate an additional $7,000,000 for multidisciplinary research into nanotechnology science in furtherance of national security objectives.


Following debate in the House, H.R. 1540 passed by a vote of 322 for and 96 against, sending the bill into the Senate for it’s consideration. Senator Claire McCaskill (D-MO), in a letter to Chairman McKeon and Ranking Member Rep. Adam Smith (D-WA-9th) – the ranking member of either a House or Senate Committee or Subcommittee is usually the most senior member of the minority party in the House or Senate – has raised objections to H.R. 1540, specifically citing Sec. 1647 as violating the House Republican’s recently adopted ban on earmarks:

May 26, 2011

Dear Chairman McKeon and Ranking Member Smith:

I write today to express concerns about the process used in your committee’s mark-up of the Fiscal Year 2012 National Defense Authorization Act (NDAA), which has obviously been structured to circumvent the earmark ban adopted by the House of Representatives. As someone who has worked tirelessly to end the non-competitive, arbitrary process of earmarking, I celebrated the decision, first made by House Republicans, to put a moratorium on earmarks. However, you have now instituted a process that allows members of your committee to circumvent the ban through the use of non-transparent amendments that effectively act as traditional earmarks. This is disappointing and disingenuous. . . .

What is remarkable is that the new earmarking procedure you have instituted not only circumvents the current moratorium but is actually less transparent than the earmarking process that was in place prior to the moratorium. In the process used by your committee, neither exact dollar amounts nor intended recipients of the earmarks can be clearly discerned. Under pre-moratorium rules, earmark requests were publicly posted and funded earmarks were listed in reports accompanying bills with the sponsor, amount and intended recipient all clearly detailed. You may assert that amendments adopted to your bill do not require a specific dollar amount be directed to a specific entity. You may also argue that the amendments require competition in awarding additional funding. Unfortunately, such arguments appear insincere. It has been reported that the members of your committee have been assured that they will be able to direct the funds provided for in their amendments to their desired recipients using informal contacts with the Department of Defense and the leverage of the Armed Services Committee. The press releases of your members issued when the FY12 NDAA won passage in your committee bear this out, as illustrated in the example below. . . .

One amendment approved by your committee provides a clear example. During the markup of your bill, a Congressman with a nanotechnology-specific academic center in his district offered an amendment seeking a $7 million addition for "innovative nanomaterials and nanomanufacturing processes." The amendment was offset using funds in the MFET Fund. The amendment was later passed as part of a large block of similar amendments without debate. Subsequently, the Member who won inclusion of the amendment issued a press release celebrating the additional $7 million in funding. Curiously – or not – the press release also included a quote from a member of the leadership of the university with the nanotechnology center in the Congressman’s district. It is apparent that both the member and the university have expectations that the funds will ultimately reach the university. This is tantamount to the classic earmarking process. Notably, the Member who sponsored this amendment, like his House colleagues, has publicly embraced an earmark ban for the 112th Congress.

On its face, the new process you have implemented in your committee to facilitate earmarking and circumvent the earmark moratorium in the House strikes me as a subversion of the trust of the American people who took your word about ending earmarks. Out of fidelity to your own commitment to ban earmarks, I urge you to seek to remove those amendments included in the FY12 NDAA that appear to be nothing more than earmarks in an alternate form.


What raised Senator McCaskill’s ire were two press releases issued by Rep. Gibson’s office on May 12, 2011, announcing that several of the amendments he had offered during the markup session had been adopted, including what became Sec. 1647:

“This action by the House Armed Services Committee represents great news for the Capital Region, New York State, and the nation.  Congressman Chris Gibson is to be applauded for his vision and leadership in advancing the concept of a Federally Funded Research and Development Center dedicated to nanotechnology for defense related innovations, and commended for his drive to make such a critical enterprise a reality.  An FFRDC for nanoscale defense applications represents a clear and present national priority, not only to provide our fighting men and women with the state-of-the-art technological tools to protect and safeguard this great country, but also to ensure its ability to maintain its scientific and economic competitiveness in the nanotechnology enabled global economy of the 21 century.  The Capital Region is uniquely predisposed to benefit from this FFRDC, leading to significant Federal investments and high tech jobs creation and retention,” said Alain Kaloyeros, the SUNY College of Nanoscale Science and Engineering Senior Vice President and CEO. . . .

Full List of Congressman Gibson Additions and Amendments to the 2012 NDAA

  • Commission a study by the Department of Defense to assess the desirability of establishing a Federally Funded Research and Development Center (FFRDC) for nanotechnology.  This would allow the SUNY Albany College of Nanoscale Science to compete for this designation, and associated federal support, if it is determined necessary.  The authorization also expresses the sense of the Committee that such a FFRDC should be designated.
  • Provide $7 million (fully offset) in funding for nanotechnology research in the defense field.  SUNY Albany would be able to compete for this funding as well.

and a second press release issued folowing the House passage of H.R. 1540 on 05/26/2011:

“Furthermore, the money designated for nanotechnology research, which the SUNY Albany College of Nanoscale could compete for, will help to provide state-of-the-art technology that will make military equipment more reliable, more durable, and lighter for our service members to carry.  Finally, I’m very glad the final bill included a provision expressing the sense of Congress that there be a national Yellow Ribbon Day, an important demonstration of support for our Armed Forces and their families, and modeled after the event on April 9 in New York State.”

As the Roll Call article linked to above points out, ". . . SUNY Albany College of Nanoscale Science and Engineering is not in Gibson’s district. . . .". It’s in the 21st district, the district for Paul Tonko.

H. Rpt. 112-78 provides clear justification for Sec. 1647:

Nanotechnology research

The committee is aware that the Department of Defense is pursuing research into a variety of nanotechnology applications for defense purposes. New capabilities enabled by the unique performance enhancements of nanostructure materials hold the potential of transforming the technology landscape. The committee encourages the Department to continue to make investments in nanotechnology research that is needed to create the next generation of sensors, electronics, weapons, and manufacturing processes.

However, the committee is concerned that the Department of Defense lacks sufficient expertise in some emerging research disciplines related to nanotechnology to support a long-term research investment strategy. The committee is aware that a dedicated federally funded research and development center (FFRDC) could support the Department in this effort, but that no such broad-based nanotechnology FFRDC exists.

Therefore, the committee directs the Assistant Secretary of Defense for Research and Engineering to provide a report to the Senate Committee on Armed Services and the House Committee on Armed Services within 90 days after the date of enactment of this Act on how the Department of Defense receives support from the research community on nanotechnology issues, including identifying where within the existing FFRDC community that expertise comes from, and assessing whether a dedicated FFRDC is needed.

It is possible that, once the Senate begins debate on H.R. 1540, Sec. 1647 may be amended out of the bill and that the bill could go into a Conference Committee. We’ll keep track of the progress of the bill.

We’d like to gratefully acknowledge the folks at Bloomberg Government for providing a transcript of the House Committee on Armed Services markup session.