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The House version of the bill,
H. R. 4350, passed the House on September 23, 2021 and was
received in the Senate on October 18, 2021. H. R. 4350 was
accompanied by
H. Rept. 117-118, the House Armed Services report.
S. 2792 was reported by the Senate Committee on Armed
Services to the Senate on September 22, 2021 with
S. Report 117-39. However, S. 2792 never passed the Senate.
H. R. 4350 was the vehicle for the
National Defense Authorization Act for Fiscal Year 2022 (NDAA
for FY 2022) when it arrived in the Senate and the
Senate amendment process began and continued until December 2,
2012 and then ended. Included during the amendment process
on December 1 and 2, 2021, was Senate amendment
S.
Amdt. 3867 which was intended to amend H. R. 4350 as a substitute bill. S.
Amdt. 3867 was a list of 945 amendments that were
not formed into a substitute nor voted on individually or
together. Apparently, House and Senate Armed
Services Committee members (and their staffs) realized they
would be unable to complete and pass a Senate
version of the NDAA Act of 2022, hold a conference to iron out
difference between the House bill and a passed Senate bill, agree on
a conference
report and have both houses pass a conference report. They had less than a month to do that before they left
for the calendar year. Instead, some members of the 2 Armed
Services Committees negotiated a final bill on their own.
To get the NDAA approved quickly, S.
1605, a bill to designate the National Pulse Memorial located at
1912 South Orange Avenue in Orlando, Florida, was used as a vehicle. S. 1605 was
amended with the Armed Services Committees' agreement as a
substitute and passed by
both houses. Since there was no conference committee
and conference report, a document called a "Joint Explanatory
Statement to Accompany the National Defense Authorization Act
for Fiscal Year 2022" was written.
The Joint Statement explains that
"Section 5 of the Act
specifies that this explanatory statement shall have the
same effect with respect to the implementation of this
legislation as if it were a joint explanatory statement of a
committee of conference."
The Explanatory
statement explains that
The provisions of
Senate amendment 3876 to H.R. 4350 are generally referred
to as ‘‘the Senate amendment.”
Although the Joint
Explanatory Statement explains that S. Amdt. 3876 is
referred to as the "Senate amendment", S. Amdt. 3876 was
never passed and neither was S. 2792. Instead, the House and
Senate Armed Services Committee members and/or staff that
negotiated S. 1605 used S. Rpt. 117-39 that accompanied S.
2792 as if it
had passed the Senate and been substituted for H. R. 4350.
As a result, the Joint Explanatory Statement says one thing
but does another. Because of this, I would pay
attention to what the Joint Explanatory Statement states in
its "Agreement" and go no further.
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