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Staff Contact: Russ Vought (x68581) December 19, 2005

**DRAFT**

**Appropriations Policy Brief**

**H.R. 2863 --- Defense Appropriations Act for FY 2006**

***Conference Report***

**[Items of Note:]{.underline}**

**Contingency Operations "Bridge" Fund:** Includes \$50 billion for
fiscal year 2006 in order to ensure the uninterrupted delivery of
resources to our troops in the field, and to avoid any disruption in
funding for the global war on terrorism. This funding was provided for
in the FY06 budget resolution in the form of \$50 billion reserve fund.

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**Katrina Spending:** Includes \$29 billion in funding for hurricane
recovery (of which \$23.4 billion is reallocated from unspent funds in
FEMA's Disaster Relief Fund), including:

-   \$2.9 billion is provided for the Army Corps of Engineer (\$1.3
    billion more than the request)

-   \$1.1 billion for agriculture programs (\$590 million more than the
    request), including payments to rebuild oyster reefs, cleaning barns
    and poultry houses, provide water to livestock, and up to \$20
    million for "poultry recovery assistance" (assistance to chicken
    farmers who were uninsured)

-   \$1.6 billion in un-requested education spending (homeless education
    and elementary and secondary K-12 "start-up" funding). The
    conference report allows this funding to flow to non-public schools
    and includes a severability clause to ensure that if any portion is
    declared unconstitutional, the rest will not be affected.

The conference report also includes \$11.5 billion for Community
Development Block Grants (CDBG), *\$10 billion more than the President
requested*. No state would receive more than 54% of the amount provided.
*As proposed* (and not specified in the conference report) by Governor
Haley Barbour and Senator Thad Cochran, Mississippi intends to use this
CDBG funding to provide up to \$135,000 to families who failed to buy
flood insurance (but purchased another form of insurance, such as
hurricane). States receiving such funding would not be required to
contribute a non-federal public match as was required by the Florida
hurricane supplemental in 2004 and the Midwestern floods supplemental in
1998.

**Avian Flu Preparedness**: Provides \$3.8 billion to address the threat
of an avian flu outbreak and prepare for a possible pandemic (of which
\$3.3 billion is devoted to the Department of Health and Human
Services). The conference report also provides targeted liability for
pandemic and epidemic products and security countermeasures (vaccines),
specifically:

-   Providing that a covered entity (as defined) will be immune from
    suit and liability under federal and state law with respect to all
    claims against an entity directly involved in producing the vaccine.

-   Listing specific restrictions and exclusions of liability, providing
    that the entity must have been acting within the bounds of the
    declaration (of an epidemic) and was operating within the specified
    scope of the countermeasure.

-   Authorizing the DHS Secretary to issue a declaration of a public
    health emergency, stipulates the procedure for doing so, and
    authorizes him to initiate the manufacture and distribution of
    appropriate countermeasures.

-   Prohibiting all U.S. courts from having jurisdiction over any action
    of the Secretary regarding the provisions of this section of the
    Act.

-   Providing that a declaration from the Secretary automatically
    preempts state laws that run counter to it.

-   Allowing the Secretary to compensate eligible victims that were
    injured as a result of a countermeasure, under certain
    circumstances.

**Spending Offsets**: Includes \$33.5 billion in savings as follows:

-   \$23 billion reallocation of unspent FEMA funds (much of which is
    still required to be eventually spent under the Stafford Act,
    causing further appropriations to be made either though another
    supplemental or through the regular FY07 budget process)

-   1% across-the-board cut of FY06 appropriations, saving \$8.5
    billion. The across-the-board cut would exempt programs designated
    as an emergency (Iraq funds, Katrina funds, and avian flu funds)
    *and all veterans programs*.

-   \$1.6 billion in additional rescissions.

These offsets pay for the new Katrina spending in this bill, the avian
flu preparedness spending, and the provision in the FY06
Transportation-Treasury-HUD appropriations (H.R. 3058) that CBO had
retroactively scored differently than in the past (causing the bill to
exceed that conference report to exceed the budget by \$618 million).

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**Competitive Sourcing**: Prohibits funds from being made available to
perform any cost study pursuant to the provisions of OMB Circular A--76
(competitive sourcing), if the study being

performed exceeds a period of 24 months after initiation of such study
with respect to a single function activity or 30 months after initiation
of such study for a multi-function activity.

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**Detainee Treatment**: Includes the following provisions relating to
the treatment of detainees (the Detainee Treatment of Act of 2005):

-   Provides that no person in the custody or under the control of the
    DOD is to be subject to any treatment or technique of interrogation
    not authorized by and listed in the United States Armey Field Manual
    on Intelligence Interrogation. The provision does not apply to
    certain individuals.

-   Protects persons in the custody or under the physical control of the
    United States Government, regardless of nationality or physical
    location, from cruel, inhuman, or degrading treatment or punishment.

-   Provides that in any civil action or criminal prosecution against an
    officer, employee, member of the Armed Forces, or the agent of the
    U.S. Government, that involve detention and interrogation of aliens
    who the President has determined are believed to be engaged in or
    associated with international terrorist activity that poses a
    serious threat to the U.S., and that were officially authorized and
    determined to be lawful at the time that they were conducted, are to
    be a defense that the individual did no know that the practices were
    unlawful and person of ordinary sense and understanding would not
    know the practices were unlawful.

-   Directs the Secretary of Defense to submit to Congress guidelines
    for the procedures for status review of detainees outside the U.S.
    The provision outlines specific details and guidelines to be
    included in these procedures.

-   Amends current law regarding writ of habeas corpus extended to
    prisoners providing that, with certain legal exceptions, no court,
    justice, or judge is to have jurisdiction to hear or consider
    certain applications for a writ of habeas corpus filed by or on
    behalf of an alien detained by DOD of an alien at Guantanamo Bay,
    Cuba, who meets certain requirements.

-   Gives the U.S. Court of Appeals for the District of Columbia Circuit
    exclusive jurisdiction to determine the validity of any final
    decision of a Combatant Status Review Tribunal that an alien is
    properly detained as an enemy combatant, and to determine the
    validity of any final decision rendered pursuant to Military
    Commission Order No. 1.

-   Directs the Secretary of DOD to ensure that policies are prescribed
    regarding procedures for military and civilian personnel of DOD in
    Iraq that are intended to ensure that members of the Armed Forces,
    ensure that all personnel of Iraqi military forces trained by DOD
    personnel, receive training regarding the international obligations
    and law applicable to the humane detention of detainees.

**U.S. Capitol Physician:** Includes language stating that "the present
incumbent Attending Physician at the U.S. Capitol shall be continued on
active duty until ten years after the enactment of this Act."

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**Arctic National Wildlife Refuge (ANWR): *\$2.5 billion in savings over
five years.*** Allows for oil and gas leasing in Alaska's Arctic
National Wildlife Refuge (ANWR) that would result in an "environmentally
sound program for the exploration, development, and production" of the
oil and gas in ANWR. The Secretary of the Interior, charged with
overseeing the leasing (first lease required within 22 months of
enactment), would have to ensure that the oil and gas activities
(including transportation) would result in "no significant adverse
effect on fish and wildlife, their habitat, subsistence resources, and
the environment." The maximum amount of surface coverage covered by
production and support of lessee facilities could not exceed [2,000
acres]{.underline}. Leases authorized by this legislation would have to
comply with all applicable provisions of federal and state environmental
law and with other requirements outlined in the language (regarding
calendar limits in exploration, wetland protection, oil-spill
contingencies, etc.). Fifty percent of the leasing revenues collected by
the federal government would go to Alaska (in semiannual payments), with
the balance going to the U.S. Treasury as miscellaneous receipts.
Complaints against the federal government regarding leases and lease
applications in ANWR could only be filed at the U.S. District Court of
Appeals for the District of Columbia under expedited procedures. A newly
created Coastal Plain Local Government Impact Aid Assistance Fund within
the U.S. Treasury (funded with revenues from lease rents and royalties
plus \$5 million a year in taxpayer funds) would help mitigate the
potential effects of oil and gas exploration and development on local
cultural values and municipal services.

> **Note: Additional Background on ANWR**: The Coastal Plain of the
> Arctic National Wildlife Refuge (the area addressed by this
> legislation) is comprised of about 1.55 million acres. ANWR, in total,
> comprises 19.6 million acres. For more background on ANWR, visit these
> webpages:
>
> [[http://resourcescommittee.house.gov/issues/emr/report/history.htm]{.underline}](http://resourcescommittee.house.gov/issues/emr/report/history.htm)
>
> [[http://resourcescommittee.house.gov/issues/emr/report/facts.htm]{.underline}](http://resourcescommittee.house.gov/issues/emr/report/facts.htm)
>
> [[http://resourcescommittee.house.gov/issues/emr/report/resources.htm]{.underline}](http://resourcescommittee.house.gov/issues/emr/report/resources.htm)
>
> [[http://resourcescommittee.house.gov/issues/emr/report/wildlife.htm]{.underline}](http://resourcescommittee.house.gov/issues/emr/report/wildlife.htm)

**Gulf Coast Recovery Fund from ANWR and DTV**. Creates a Gulf Coast
Recovery and Disaster Prevention and Assistance Fund, funded with 80% of
the federal share of rent and bonus bids (any additional receipts that
CBO does not anticipate) from ANWR leasing, 20% of the federal share of
royalties from ANWR leasing, and up to \$2 billion in excess digital TV
transition receipts above CBO's estimate of \$10 billion (see the
Spending Reconciliation bill). Money in the fund would have to be
distributed to Louisiana (50%), Mississippi (25%), Texas (10%), Alabama
(10%), and Florida (5%) for hurricane disaster relief and recovery.

**LIHEAP**. Appropriates an additional \$2 billion in "**emergency"**
FY2006 funds for the Administration for Children and Families, \$1.5
billion of which would be for LIHEAP.

**Agricultural Assistance from DTV**. Reserves \$1 billion in excess
digital TV transition receipts above \$12 billion for agricultural
conservation program assistance.

**Terrorism Preparation from DTV**. Reserves \$2 billion in excess
digital TV transition receipts above \$12 billion for preparation for a
natural disaster or terrorist attack (\$1 billion for interoperable
communications equipment, \$1 billion for Department of Homeland
Security grants for local preparedness).

**Offsetting Receipts from DTV for Additional Homeland Security
Funding**. Reserves \$1.139 billion in excess digital TV transition
receipts for additional Homeland Security Department spending.

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**[Earmarks:]{.underline}**

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**Note:** The following provisions may have been requested by the
Administration and/or may change existing law to expand funding to a
certain locale or group (i.e., these provisions may not be
*Congressional* earmarks).

-   \$500,000 for Outdoor Odyssey, Roaring Run, PA to support the Youth
    Development and Leadership Program and STARBASE Program

-   \$3.9 million for the Intrepid Sea-Air Space Foundation

-   \$1 million to the Pentagon Memorial Fund

-   \$4.4 million for the Center for Applied Science and Technologies

-   \$1 million for the Vietnam Veterans Memorial Fund for the Teach
    Vietnam Initiative

-   \$500,000 for the Westchester County World Trade Center Memorial

-   \$1 million for the Woman in Military Service for America Memorial
    Foundation

-   \$2 million for the Presidio Trust

-   \$500,000 to George Mason University for the Clinic for Legal
    Assistance to Servicemembers

-   \$850,000 to the Fort Des Moines Memorial Park and Education Center

-   \$1 million to the American Civil Water Center at Historic Tredegar

-   \$1.5 million to the Museum of Flight, American Heroes Collection

-   \$1 million to the National Guard Youth Foundation

-   \$2.6 million to the United Services Organization

-   \$1.7 million to the Dwight D. Eisenhower Memorial Commissions

-   \$1 million to the Iraq Cultural Heritage Assistance Project

-   \$1.4 million to the Pacific Aviation Museum-Pearl Harbor

-   \$1.5 million to the Red Cross Consolidated Blood Services Facility

-   \$150,000 to the Teluride Adaptive Sports Program

-   \$4 million to T.H.A.N.K.S. USA

-   \$1.5 million to the Battleship Texas Foundation to Restore and
    Preserve the Battleship Texas

-   \$1 million to the Pennsylvania Veterans Museum Media Armory

-   \$4.8 million for the City of Twentynine Palms, California, to widen
    the off-base Adobe Road