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Casework , in a congressional office, refers to the response or services that Members of Congress provide to constituents who request assistance. As part of the process of determining how to carry out their congressional duties, Members of Congress largely determine the scope of casework and their other constituent service activities. Typically with casework, Members and their staffs help individual constituents deal with federal administrative agencies by acting as facilitators, ombudsmen, and, in some cases, advocates. Some congressional offices may consider their liaison activities between the federal government and local governments or businesses concerned with the effects of federal legislation or regulation to be casework. Other offices may include interactions with communities and nonprofit organizations seeking federal grants or other assistance as casework. Common congressional casework requests include tracking a misdirected benefits payment; helping to fill out a government form; applying for Social Security, veterans', education, and other federal benefits; explaining government activities or decisions; applying to a military service academy; seeking relief from a federal administrative decision; and immigrating to the United States or applying for U.S. citizenship. Contrary to the widely held public perception that Members of Congress can initiate a broad array of actions resulting in a speedy, favorable outcome, there are significant limitations on the degree of permissible intervention from a Member office. More of these restrictions are described later in this report: see " 3. What rules govern casework? ". Casework is not required of Members of Congress, but it is commonly expected by constituents. Some constituents may view a Member's office as the best point of a contact for assistance with the federal government. It appears that each Member office today provides some type of casework, reflecting a broadly held understanding among Members and their staff that casework is integral to the representational duties of a Member of Congress. Some also believe that casework activities can be part of an outreach strategy to build political support among constituents. Casework may also be viewed as an evaluative stage of the legislative process. Some observers suggest that casework inquiries afford Members the opportunity to evaluate whether a program is functioning as Congress intended. Constituent inquiries about specific policies, programs, or benefits may also suggest areas in which programs or policies require additional oversight, or further legislative consideration. Federal statute prohibits Members of Congress, chamber officers, and congressional staff from representing anyone before the federal government, except in the performance of their official duties. House and Senate rules and federal law also prohibit ex parte , or off-the-record, communications with agency employees reasonably expected to be involved in case adjudication. Generally, a Member of Congress may do the following on behalf of eligible individuals seeking their assistance, under House and Senate guidelines: request information or a status report; urge prompt consideration; arrange for interviews or appointments; express judgments; call for reconsideration of an administrative response that the Member believes is not reasonably supported by statutes, regulations, or considerations of equity or public policy; or perform any other service of a similar nature consistent with the provisions of the rules of the House or Senate. Under the Privacy Act of 1974, executive branch agencies cannot share records containing an individual's personally identifiable information with any outside entity unless that individual has authorized the release of that information. Agencies may request a particular format or types of information on a Privacy Act release. Requests involving medical information might require an additional waiver, pursuant to rules promulgated under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). House rules regarding casework services are discussed in the House Ethics Manual . Guidelines in the House Ethics Manual say that when contacting a federal agency on behalf of a constituent, a Member, officer, or employee of the House should not make prohibited, off-the-record comments, receive things of value for providing casework assistance, or improperly pressure agency officials. Casework requests typically do not involve the courts, but guidelines in the House Ethics Manual  provide a range of options to Members who might choose to participate in judicial proceedings. Senate Rule XLIII and the Senate Ethics Manual establish parameters for casework services in that chamber. Senate Rule XLIII (3) prohibits the provision of casework assistance on the basis of contributions or services to organizations in which the Senator has a political, personal, or financial interest. The Senate Ethics Manual describes constituent service as something that occurs with respect to the executive branch and is silent on service before the courts. Because casework is often viewed as a representational activity, the primary recipients of an office's casework services are usually considered to be individual constituents residing within a House Member's district, or a Senator's state. Yet there are reasons why other persons or entities might seek assistance from a Member's office. For example, foreign-born individuals seeking to immigrate to the United States may contact a Member of Congress for assistance. A family member or other concerned party outside of a Member's district may contact an office on behalf of a resident constituent. Strict definitions of who is eligible for casework assistance are not provided by the House or Senate; however, other guidelines may imply certain parameters. Senate Rule XLIII recognizes that not everyone who seeks assistance from a Senator will be a constituent of the state the Senator represents, and uses the term "petitioner" to refer to the casework requester. No such distinction is drawn in the House Ethics Manual , which uses the term "constituents" to refer to the recipients of Members' casework services. In the House, guidance issued by the Committee on Ethics suggests that "particular care should be exercised when providing assistance to individuals who are not from the Member's congressional district." The guidance also indicates that a Member should not use official resources to provide casework for individuals who live outside the district the Member represents. When a Member of the House is unable to assist a non-constituent, the Member may refer the person to his or her own House Member or Senators. Matters regarding the management of casework activities are at the discretion of individual congressional offices, subject to the rules of their respective chambers, relevant law, and the priorities of that office. The number and type of constituent requests, how an office defines casework, Member priorities, and the distribution of responsibilities among office locations and staff are some of the factors that can affect a congressional office's casework policies and procedures. Most casework is conducted by staff in state or district offices, and staff are commonly hired in these locations to work on casework or other constituent services. Offices often establish and document procedures for how they handle casework; this is not required, but some offices find it useful to specify casework goals, management procedures, or expectations of staff. This can help ensure that all cases are addressed in a similar manner, and that all appropriate staff can process new casework requests and access casework records if needed. Offices sometimes create their own forms to serve as Privacy Act waivers or to gather necessary case-related information from constituents. Most constituents expect that offices will handle their personal information carefully and discreetly. Casework and other records created in a congressional office are considered to be the personal property of the Member; the House and Senate provide guidance for managing these materials. Many state or district offices have enough constituent requests to assign at least one staff member to work specifically on casework. Congressional staff serving as caseworkers typically act as liaisons between constituents and federal agencies. The decision to hire a caseworker, the specific qualifications for that role, and job responsibilities, however, are left to each Member office to determine. In some offices, certain caseworkers work with particular agencies or on certain types of cases; in other offices, all caseworkers work on all types of cases. For some staff, casework is their primary job responsibility; others perform casework alongside another role in the office. Caseworkers generally first obtain information about the constituent's situation from the person requesting assistance. This often involves understanding the problem presented by, or on behalf of, the constituent. Caseworkers may need to establish what services or benefits the constituent may be eligible for. They may also need to request documentation, like copies of birth certificates or military service or other records, to provide to the agency in support of a case. Caseworkers also identify the appropriate way to address the constituent's concerns. Often, this involves contacting a federal agency's congressional liaison. To receive any information from federal agencies about a constituent, caseworkers must provide a Privacy Act waiver, signed by the constituent, which allows the agency to share the constituent's personal information with a Member. Throughout the process, caseworkers try to communicate with the constituent about realistic expectations. While many congressional offices focus on national agencies, some issues presented by constituents may lead caseworkers to contact state or local governments, or nonprofit or community organizations; in some instances, these entities may be able to provide intermediary or alternative assistance to constituents. Caseworkers also determine when a case may require additional support from a Member of Congress, other officials, or other staff. Additional information for caseworkers on working with constituents is available on the CRS casework resources website ( http://www.crs.gov/resources/casework ) or by contacting CRS. Often, federal agencies have designated legislative affairs or congressional relations staff assigned as general points of contact for congressional caseworkers. Many of these contacts are listed in CRS Report 98-446, Congressional Liaison Offices of Selected Federal Agencies . Congressional liaisons generally are not agency decisionmakers, and essentially serve as a resource available to assist Members and congressional staff on legislative and constituent service matters. Individuals serving in this capacity commonly work in an agency's legislative or intergovernmental affairs office. Although most of these congressional liaisons are located in Washington, DC, agency locations, they can refer caseworkers to the appropriate local or regional office staff members, if needed, for further assistance. Caseworkers may also need to identify other sources of assistance for constituents. Frequently, caseworkers can utilize contacts known to their offices. This can include local leaders or community organizations that may be able to provide alternative means of assistance for constituents. Caseworkers may also learn about helpful points of contact through other caseworkers who have worked on similar issues in another congressional office. In addition to developing a broad network of contacts, caseworkers often develop expertise through their interactions with agencies and insights into what agency acronyms or terminology mean in practical terms for the constituent. This sometimes enables caseworkers to provide information to constituents that the constituents may not have otherwise gleaned from the agency's formal response. Although Members and caseworkers are limited in how much they can directly intervene in an agency's decisionmaking process on behalf of a particular case, there are several reasons why agencies typically are responsive to congressional concern. Congress, broadly, is responsible for creating federal agencies and programs, determining their scope, providing their funding, and overseeing their activities. Because some constituents seek congressional assistance only after other means of working with an agency have failed, agencies may view congressional casework inquiries as micro-level exercises of oversight and respond to them accordingly. Response times, whether for an acknowledgment that a case inquiry has been received, or for a response the agency considers final, can vary considerably from agency to agency. Waiting periods may be determined in part by the priority agencies place on constituent service, the type or complexity of an individual case, or the volume of cases to which an agency responds. In some instances, agency response practices might result in slower response than constituents and some congressional offices expect or would prefer. Federal agencies might have different protocols that apply for emergency or time-sensitive situations, and congressional liaisons can share these methods with caseworkers. There are, however, limits on what caseworkers and agency officials can do to expedite requests. As constituents wait for an agency response, caseworkers might try to provide information about how long the process could take, based on information from or past work with the agency. Caseworkers may choose to provide regular updates to constituents at defined intervals to help assure constituents that their case is still being considered by the agency. Federal agencies are required to comply with statutes and regulations governing their activities, including decisions regarding services and benefits provided to constituents. As a consequence, an agency might sometimes be unable to provide a response that is satisfactory to the constituent. If there is reason to believe that incomplete information was available to the agency, or that an agency decision was not in keeping with its statutory or regulatory requirements, a Member office may, pursuant to House or Senate rules, request reconsideration of a constituent's concerns. Caseworkers can sometimes refer constituents to state, local, or community resources that might address some of the challenges a constituent is experiencing. Nonfederal entities that provide services to veterans, the elderly, or others with specific needs might offer services while a constituent awaits an agency decision or fashion a remedy if no agency resolution is available. CRS has a number of casework resources for congressional offices, accessible online through http://www.crs.gov/resources/CASEWORK . These resources include an introductory video on casework (CRS Video WVB00093, Introduction to Congressional Casework ); a longer report on casework practices (CRS Report RL33209, Casework in a Congressional Office: Background, Rules, Laws, and Resources ); a report on U.S. service academy nominations (CRS Report RL33213, Congressional Nominations to U.S. Service Academies: An Overview and Resources for Outreach and Management ); and a list of frequently updated congressional liaison contacts (CRS Report 98-446, Congressional Liaison Offices of Selected Federal Agencies ). CRS periodically hosts seminars for district and state staff that can provide additional information; upcoming programs are listed at http://www.crs.gov/events . Congressional offices may also contact CRS analysts directly to address more specific questions or concerns related to casework. Further case support may be obtained by contacting local or state officials, professional associations, or community groups that help individuals facing similar situations; these entities may have access to additional resources that can help resolve or alleviate a constituent's problem. Caseworkers working in district offices may find it useful to contact staff in the Member's Washington, DC, office for additional information about policies or programs that affect casework. Similarly, information from fellow caseworkers in neighboring states or districts where constituent and agency experiences may be similar can be useful in providing caseworkers with contacts, resources, or advice.

Constituents often contact a congressional office looking for assistance; the work congressional offices do in response to these requests is generally referred to as casework . Members of Congress determine the scope of their constituent service activities, including casework. Many requests for casework come from constituents seeking assistance from federal agencies, but offices may also receive requests from non-constituents. Congressional offices can have different conceptualizations of casework based on Member preferences, district needs, and constituent expectations. This report addresses frequently asked questions (FAQs) about congressional casework. It is intended to provide resources for congressional offices and individual caseworkers. This includes the casework rules and guidelines established by the House and Senate, as well as some observations about how congressional offices generally approach casework and work with federal agencies on behalf of constituents. Casework practices are largely left to each Member office to determine, like many other aspects of congressional operations. Each constituent's situation is unique, and federal agencies vary in their casework practices, which makes it difficult for either chamber to issue prescriptive guidelines regarding casework. The degree of flexibility afforded to offices can help caseworkers tailor their assistance to best meet constituents' needs. The relative autonomy afforded to congressional offices regarding casework also means that many of the answers provided here are necessarily broad-based. Further resources are available from CRS that can provide more specific, context-specific information. Several of these CRS resources are discussed throughout this report, including the following: CRS Video WVB00093, Introduction to Congressional Casework , by [author name scrubbed] CRS Report RL33209, Casework in a Congressional Office: Background, Rules, Laws, and Resources , by [author name scrubbed] CRS Report RL33213, Congressional Nominations to U.S. Service Academies: An Overview and Resources for Outreach and Management , by [author name scrubbed] and [author name scrubbed] CRS Report 98-446, Congressional Liaison Offices of Selected Federal Agencies , by [author name scrubbed] the CRS resources website, "Constituent Services: Casework," by [author name scrubbed], available at http://crs.gov/resources/casework

The Emergency Planning and Community Right-to-Know Act (EPCRA) establishes requirements and a framework to ensure that the U.S. Environmental Protection Agency (EPA), state and local governments, and the private sector will work together to control and, if necessary, respond to releases of hazardous chemicals to the environment. This report describes key provisions of EPCRA. In addition, it provides several references for more detailed information about the act, and a table that cross-references sections of the U.S. Code with corresponding sections of the act. The report highlights key provisions rather than providing a comprehensive inventory of the act's numerous sections, and addresses authorities and limitations imposed by the statute, rather than the status of implementation or other policy issues. The sudden, accidental release in December 1984 of methyl isocyanate in an industrial incident at the Union Carbide plant in Bhopal, India, and the attendant loss of thousands of lives and widespread injuries motivated many in Congress to support legislation to reduce the risk of chemical accidents in the United States. The Emergency Planning and Community Right-to-Know Act (42 U.S.C. 11001-11050) was enacted in 1986 as Title III of the Superfund Amendments and Reauthorization Act ( P.L. 99-499 ). EPCRA established state commissions and local committees to develop and implement procedures for coping with releases of hazardous chemicals, and mandated annual reporting to government officials on environmental releases of such chemicals by the facilities that manufacture or use them in significant amounts. EPA facilitates planning, enforces compliance when necessary, and provides public access to information about environmental releases of toxic chemicals. EPCRA established a national framework for EPA to mobilize local government officials, businesses, and other citizens to plan ahead for possible chemical accidents in their communities. Subtitle A requires local planning to respond to sudden releases of chemicals that might occur in the event of a spill, explosion, or fire. It is intended to ensure that responsible officials will know what hazardous chemicals are used or stored by local businesses and will be notified quickly in the event of an accident. Under Section 301, each state is required to create a State Emergency Response Commission (SERC), to designate emergency planning districts, and to establish local emergency planning committees (LEPCs) for each district. Section 302 requires EPA to list extremely hazardous substances and to establish threshold planning quantities for each substance. Originally, Congress defined chemicals as "extremely hazardous substances" if they appeared on a list EPA published in November 1985 as Appendix A in "Chemical Emergency Preparedness Program Interim Guidance." However, EPA has authority to revise the list, and the threshold quantities of chemicals. Based on listing criteria, the intent appears to be to include only chemicals in quantities that could harm people exposed to them for only a short period of time. The law directs each facility to notify the LEPC for its district if it stores or uses any "extremely hazardous substance" in excess of its threshold planning quantity. Section 303 directs LEPCs to work with facilities handling specified "extremely hazardous substances" to develop response procedures, evacuation plans, and training programs for people who will be the first to respond in the event of an accident. Upon request, facility owners and operators are required to provide an LEPC with any additional information that it finds necessary to develop or implement an emergency plan. Section 304 requires that facilities immediately report a release of any "extremely hazardous substance" or any "hazardous substance" (a much broader category of chemicals defined under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 102(a)) that exceeds the reportable quantity to appropriate state, local, and federal officials. Releases of a reportable quantity of a "hazardous substance" also must be reported to the National Response Center under CERCLA Section 103(a). (For more on CERCLA, see CRS Report RL30798, Environmental Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency , coordinated by [author name scrubbed], which includes a summary of CERCLA.) Subtitle B establishes various reporting requirements for facilities. The information collected may be used to develop and implement emergency plans, as well as to provide the public with general information about chemicals to which they may be exposed. The Occupational Health and Safety Act of 1970 (OSHAct) requires most employers to provide employees with access to a material safety data sheet (MSDS) for any "hazardous chemical." This "right-to-know" law for workers aims to ensure that people potentially exposed to such chemicals have access to information about the potential health effects of exposure and how to avoid them. EPCRA, Section 311, requires facilities covered by OSHAct to submit an MSDS for each "hazardous chemical" or a list of such chemicals to the LEPC, the SERC, and the local fire department. EPA has authority to establish categories of health and physical hazards and to require facilities to list hazardous chemicals grouped by such categories in their reports. An MSDS need only be submitted once, unless there is a significant change in the information it contains. An MSDS must be provided in response to a request by an LEPC or a member of the public. "Hazardous chemicals" are defined by the Code of Federal Regulations , Title 29, at Section 1910.1200(c). EPCRA, Section 312, requires the same employers to submit annually an emergency and hazardous chemical inventory form to the LEPC, SERC, and local fire department. These forms must provide estimates of the maximum amount of the chemicals present at the facility at any time during the preceding year; estimates of the average daily amount of chemicals present; and the general location of the chemicals in the facility. Information must be provided to the public in response to a written request. EPA is authorized to establish threshold quantities for chemicals below which facilities are not required to report. Section 313 mandates development of the Toxic Release Inventory (TRI), a computerized EPA database of "toxic chemical" releases to the environment by manufacturing facilities. It requires manufacturing facilities that manufacture, use, or process "toxic chemicals" to report annually to EPA on the amounts of each chemical released to each environmental medium (air, land, or water) or transferred off-site. EPA makes TRI data available in "raw" and summarized forms to the general public. The public may obtain specific information (e.g., about a particular manufacturing facility) by submitting a request in writing to EPA. EPA distributes written and electronic, nationwide and state-by-state summaries of annual data. Raw data and summaries also are available over the Internet. EPCRA, Section 313, generally requires a report to EPA and the state from each manufacturer with 10 or more employees and who either uses 10,000 pounds or manufactures or processes 25,000 pounds of any "toxic chemical" during the reporting year. However, EPA may adjust (and has adjusted in the past) these thresholds for classes of chemicals or categories of facilities. EPCRA enumerates the following data reporting requirements for each covered chemical present at each covered facility: whether it is manufactured, processed, or otherwise used, and the general category of use; the maximum amount present at each location during the previous year; treatment or disposal methods used; and the amount released to the environment or transferred off-site for treatment or disposal. EPCRA requires reporting by manufacturers, which the law defines as facilities in Standard Industrial Classification codes 20 through 39. The law authorized EPA to expand reporting requirements to additional industries. EPA promulgated a rule May 1, 1997, requiring reports on toxic releases from seven additional industrial categories, including some metal mining, coal mining, commercial electric utilities, petroleum bulk terminals, chemical wholesalers, and solvent recovery facilities (62 Federal Register 23834). The original statute specified 313 "toxic chemicals" or categories of chemicals for which reporting was required, but EPCRA gave EPA authority to add or delete chemicals from the list either on its own initiative, or in response to citizen petitions. EPA has removed more than 15 and added a few hundred so that the current list includes 666 individual chemicals. The listing criteria specified in Section 313(d)(2) authorize EPA to add a chemical when it is "known to cause or can reasonably be anticipated to cause" the following: "significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous, or frequently recurring, releases"; in humans—cancer, birth defects, or serious or irreversible chronic health effects; or "because of—i) its toxicity, ii) its toxicity and persistence in the environment, or iii) its toxicity and tendency to bioaccumulate in the environment, a significant adverse effect on the environment of sufficient seriousness, in the judgment of the Administrator, to warrant reporting under this Section." Subtitle C contains various general provisions, definitions, and authorizations. Section 322 authorizes reporting facilities to withhold the identity of a chemical if it is a trade secret, and they follow procedures established by EPA. Special provisions are made in Section 323 for informing health professionals of a chemical identity that has been withheld to protect confidential business information, if the information is needed to diagnose or treat a person exposed to the chemical. Section 324 directs EPA, governors, SERCs, and LEPCs to make emergency response plans, MSDSs, lists of chemicals, inventory forms, toxic chemical release forms, and follow-up emergency notices available to the general public. Section 325 establishes civil, administrative, and criminal penalties for noncompliance with mandatory provisions of the act. Citizens are given the authority to bring civil action against a facility, EPA, a governor, or an SERC by Section 326. Chemicals being transported or stored incident to transport are not subject to EPCRA requirements, according to Section 327. Section 328 authorizes EPA to issue regulations. Definitions are provided in Section 329. Section 330 authorizes to be appropriated "such sums as may be necessary" to carry out this title. Gray, Peter L. EPCRA: Emergency Planning and Community Right-to-Know Act . Basic Practice Series. Chicago, IL, ABA Publishing, 2002. 156 p. U.S. Environmental Protection Agency, Office of Pollution Prevention and Toxics. 20 1 0 TRI National Analysis . Available at http://www.epa.gov/tri/tridata/tri10/nationalanalysis/index.htm , visited April 5, 2012. Wolf, Sidney M. 1996. "Fear and Loathing about the Public Right To Know: The Surprising Success of the Emergency Planning and Community Right-to-Know Act." Journal of Land Use & Environmental Law , v. 11, n. 2, pp. 217-325.

This report summarizes the Emergency Planning and Community Right-to-Know Act (EPCRA) and the major regulatory programs that mandate reporting by industrial facilities of releases of potentially hazardous chemicals to the environment, as well as local planning to respond in the event of significant, accidental releases. The text is excerpted, with minor modifications, from the corresponding chapter of CRS Report RL30798, Environmental Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency, coordinated by [author name scrubbed], which summarizes major environmental statutes. The Emergency Planning and Community Right-to-Know Act (42 U.S.C. 11001-11050) was enacted in 1986 as Title III of the Superfund Amendments and Reauthorization Act (P.L. 99-499). In Subtitle A, EPCRA established a national framework for the U.S. Environmental Protection Agency (EPA) to mobilize local government officials, businesses, and other citizens to plan ahead for chemical accidents in their communities. EPCRA required each state to create a State Emergency Response Commission (SERC), to designate emergency planning districts, and to establish local emergency planning committees (LEPCs) for each district. EPA is required to list extremely hazardous substances, and to establish threshold planning quantities for each substance. The law directs each facility to notify the LEPC for its district if it stores or uses any "extremely hazardous substance" in excess of its threshold planning quantity. LEPCs are to work with such facilities to develop response procedures, evacuation plans, and training programs for people who will be the first to respond in the event of an accident. EPCRA requires that facilities immediately report a sudden release of any hazardous substance that exceeds the reportable quantity to appropriate state, local, and federal officials. Subtitle B directs covered facilities annually to submit information about the chemicals that they have present to the LEPC, SERC, and local fire department. In addition, manufacturers and other facilities designated by EPA must estimate and report to EPA annually on releases from their facilities of certain toxic chemicals to the land, air, or water. EPA must compile those data into a computerized database, known as the Toxics Release Inventory (TRI). Generally, all information about chemicals that is required to be reported to LEPCs, SERCs, or EPA is made available to the general public, but EPCRA authorizes reporting facilities to withhold the identity of a chemical if it is a trade secret. Citizens are given the authority to bring civil action against a facility, EPA, a governor, or an SERC for failure to implement EPCRA requirements.

RS21226 -- The Individuals with Disabilities Education Act (IDEA): Paperwork in Special Education Updated December 18, 2003 The Individuals with Disabilities Education Act (IDEA) (1) both authorizes federal funding for special education and related services(for example, physical therapy) and, for states that accept these funds, (2) sets out principles under which special education and relatedservices are to be provided. The requirements are detailed, especially when the regulatory interpretations areconsidered. The majorprinciples include requiring that: States and school districts make available a free appropriate public education (FAPE) (3) to all children withdisabilities, generally between the ages of 3 and 21; states and school districts identify, locate, andevaluate all children withdisabilities, regardless of the severity of their disability, to determine which children are eligible for specialeducation and relatedservices; Each child receiving services has an individual education program (IEP) delineatingthe specific specialeducation and related services to be provided to meet his or her needs; the parent must be a partner in planning andoverseeing thechild's special education and related services as a member of the IEP team ; "To the maximum extent appropriate," children with disabilities must be educated withchildren who are notdisabled ; and states and school districts must provide procedural safeguards to childrenwith disabilities and their parents, includinga right to a due process hearing, the right to appeal to federal district court and, in some cases, the right to receiveattorneys'fees. Although paperwork (4) is required to implement many of these statutory provisions, the area that has attracted the most discussionregarding paperwork is that relating to the IEP. The IEP is described by the Department of Education (ED) as the"cornerstone of aquality education of each child with a disability." (5) It "creates an opportunity for teachers, parents, school administrators, relatedservices personnel, and students (when appropriate) to work together to improve educational results for childrenwith disabilities." (6) Once a child is identified as a child with a disability, an IEP meeting is scheduled to discuss the child's needs andwrite an IEP. School staff are required to contact the participants, including the parents, and to provide the parents with certaininformationincluding the purpose, time and location of the meeting, and who will be attending. The IEP must contain certaininformation: how the child is currently performing in school (usually gleaned from evaluation of tests); (7) annual goals; (8) the special education and related services to be provided to the child, and the extent (if any) to whichthe childwill not participate with children without disabilities in the regular classroom; (9) any modifications in state or district wide testing; (10) when services will begin, how often they will be provided and how long they will last; (11) beginning at age 14 the IEP must address the courses the child needs to take to reach his or herpost-schoolgoals; (12) what transition services are necessary; (13) changes in rights at the age of majority; (14) and how the child's progress is to be measured and how the parents are to be informed of theprogress. (15) The IEP team may also need to consider certain special facts such as behavior management strategies, needs related to limited Englishproficiency, communication needs, needs for braille materials, and needs for assistive technology devices orservices. (16) Although some teachers have noted that the IEP requirements may necessitate a voluminous IEP, (17) the Department of Education'ssample IEP form is five pages. (18) The Departmenthas also responded to an inquiry regarding the paperwork requirements of IDEAnoting that it is "constantly reviewing its regulations to ensure that paperwork burdens on States and local schooldistricts areminimized." (19) State educational agencies are alsorequired to review their state requirements to minimize paperwork. ED also notedthat the IDEA Amendments of 1997 reduced paperwork in several ways by, for example, permitting initialevaluations andrevaluations to be based on existing evaluation data and reports. (20) The most recent data on paperwork is a study by Westat for the U.S. Department of Education (ED). (21) This study, which was basedon a nationally representative telephone survey of special education teachers, found that "53 percent of elementaryand secondaryspecial education teachers reported that routine duties and paperwork interfered with their job of teaching to a great extent " and theseteachers "typically spend over 10 percent of their time [5 hours per week] completing forms and doingadministrative paperwork." (22) Among the most time consuming activities were completing and revising the individualized education program(IEP) (on average, 2hours are spent on each IEP) and IEP meetings (on average, each meeting takes 1� hours). (23) Although only 35% of specialeducation teachers conduct evaluations of children with disabilities, those who do spend nearly 12 hours per monthconductingassessments and reviewing assessment information. (24) Both the House and Senate committee reports (25) accompanying their respective bills note that reducing paperwork is an important aimof the legislation. In its concluding remarks on the bill, the House report states that the bill centers on the"Committee's principles forreform," which among other things includes reducing paperwork. (26) The Senate report notes that one of the ways S. 1248 would improve IDEA is to "reduce bureaucratic paperwork for teachers." (27) More specifically, both reports point to provisionsin their respective bills aimed at reducing paperwork and administrative burden. The following are some examplescited in thereports: Both bills would require the General Account Office (GAO) to study and report on special education paperwork( H.R. 1350 Section 104 and S. 1248 Section 609). Both bills change the general eligibility provision for states (Sec. 612(a)) and local educational agencies(LEAs)(Sec. 613(a)) to require states and LEAs to "reasonably demonstrate" (House bill) or "provide assurances" (Senatebill) that requiredpolicies and procedures are in effect. (28) Both bills would permit states to use IDEA Part B grants-to-state funds for paperwork reductionactivities,including the use of technology ( H.R. 1350 Section 611(e)(4)(F) and S. 1248 Section611(e)(2)(C)(ii)). Both bills would permit local educational agencies (LEAs) to use Part B funds for technology relatedto casemanagement activities, such as record keeping and data collection ( H.R. 1350 Section 613(a)(4)(D) and S. 1248 Section 613(a)(4)(B)). (29) Both bills would eliminate school-based improvement plans (Section 613(g) in currentlaw). (30) Both bills would eliminate the requirement that IEPs contain benchmarks or short-term goals (Sec.614(d)(1)(A)(ii) of current law). (31) Both bills include language to prevent the addition of requirements for information in the IEP that arenotexplicitly required in Section 614 (Section 614(d)(1)(A)(ii) in both bills). Both bills would permit multi-year IEPs, although the Senate bill limits these IEPs to children withdisabilitieswho are 18 years of age or older (Section 614(d)(5) in both bills). Both bills would limit the time period during which complaints under the procedural safeguards ofIDEA can bemade ( H.R. 1350 Section 615(b)(6)(B) and S. 1248 Section 615(f)(3)(D)). (32) The House bill authorizes the Secretary of Education to institute a pilot program that would permit upto tenstates to submit plans to waive requirements of the Act to reduce paperwork ( H.R. 1350 Section617(e)). (33) Both bills would require the Secretary to create and disseminate model IEPs and other forms to promoteconsistency across states ( H.R. 1350 Section 617(g) and S. 1248 Section 617(d)). (34)

Congress is currently considering reauthorizing the Individuals with Disabilities Education Act (IDEA). H.R. 1350, 108th Congress, was passed by the House on April 30, 2003. S. 1248was reported out of committee by a unanimous vote on June 25, 2003. On November 21, 2003, a unanimousconsent agreementproviding for floor consideration of S. 1248 was adopted. Among the issues both bills address is the amountofpaperwork special education teachers have to complete. This report will discuss some of the requirements of thelaw that give rise topaperwork, the available statistics on the time special educators spend on paperwork, and selected issues in theHouse and Senate billsthat are related to paperwork reduction. This report will be updated to reflect major legislative action.

The Advanced Research Projects Agency–Energy, or ARPA-E, was established to "overcome the long-term and high-risk technological barriers in the development of energy technologies" ( P.L. 110-69 , §5012). This budget and appropriations tracking report summarizes the Administration's FY2016 budget request for ARPA-E and tracks legislative action on FY2016 appropriations. It also provides selected (proposed) appropriations authorizations under consideration in the 114 th Congress, historical funding data, and an overview of selected policy debates about the agency. Table 1 summarizes authorized funding levels for ARPA-E under certain proposed, but not yet enacted, reauthorization measures under consideration in the 114 th Congress. Table 2 shows FY2014 current funding, FY2015 enacted funding, the FY2016 request, and FY2016 House-passed and Senate committee-reported funding levels for ARPA-E. This table will be updated to include FY2016 Senate-passed amounts, as well as final enacted appropriations, when those numbers become available. For a longer perspective, Table 3 provides ARPA-E authorizations, budget requests, and appropriations from FY2008 through the FY2016 request. Appropriations to ARPA-E, which is part of the Department of Energy (DOE), are typically included in annual energy and water development and related agencies appropriations acts. (The Congressional Research Service tracks these acts each fiscal year. See the "Appropriations Status Table" on CRS.gov, at http://www.crs.gov/Pages/AppropriationsStatusTable.aspx .) ARPA-E's budget justifications are published on the agency's website at http://arpa-e.energy.gov/?q=arpa-e-site-page/arpa-e-budget . Patterned after the widely lauded Defense Advanced Research Projects Agency (DARPA)—which played a key role in the development of critical technologies such as satellite navigation and the Internet—ARPA-E was established by the America COMPETES Act ( P.L. 110-69 ) in FY2008. The agency received its first appropriations in FY2009: $15 million in regular appropriations and $400 million in American Recovery and Reinvestment Act (ARRA; P.L. 111-5 ) funding. The America COMPETES Reauthorization Act of 2010 ( P.L. 111-358 ) amended and reauthorized ARPA-E's statutory authority, which is codified primarily at 42 U.S.C. 16538, and authorized appropriations to the agency through FY2013. Although ARPA-E is relatively young by federal science agency standards, the agency asserts that its awardees already have produced significant scientific and technological gains. ARPA-E states that its awardees have developed a 1 megawatt silicon carbide transistor the size of a fingernail; engineered microbes that use hydrogen and carbon dioxide to make liquid transportation fuel; [and] pioneered a near-isothermal compressed air energy storage system. At the February 2015 annual ARPA-E Energy Innovation Summit, the agency announced that [a]t least 30 ARPA-E project teams have formed new companies to advance their technologies and more than 37 ARPA-E projects have partnered with other government agencies for further development. Additionally, 34 ARPA-E projects have attracted more than $850 million in private-sector follow-on funding after ARPA-E's investment of approximately $135 million and several technologies have already been incorporated into products that are being sold in the market. To date, ARPA-E has invested approximately $1.1 billion across more than 400 projects through 23 focused programs and two open funding solicitations (OPEN 2009 and OPEN 2012). News reports indicate that ARPA-E also has cancelled 21 projects —an expected outcome for this type of agency, which is designed to support high-risk, high-reward research that sometimes produces unanticipated (positive and negative) results. Monitoring progress and recommending termination of research projects are express statutory responsibilities of ARPA-E program directors. Authorizations of appropriations to ARPA-E, which were last enacted in the America COMPETES Reauthorization Act of 2010 ( P.L. 111-358 ), expired in FY2013. Members of the 114 th Congress have introduced measures to reauthorize provisions from P.L. 111-358 , including provisions that authorize appropriations to ARPA-E. An analysis of these bills may be found in CRS Report R43880, The America COMPETES Acts: An Overview , by [author name scrubbed]. Table 1 summarizes authorized funding levels for ARPA-E under selected, proposed reauthorization measures. The Obama Administration has requested $325 million for ARPA-E in FY2016, a $45 million (16%) increase over the FY2015 enacted level of $280 million. In keeping with its historical practice, the agency expects to use its FY2016 appropriations to support between 7 and 10 focused funding opportunity announcements (FOAs). Each FY2016 FOA would provide approximately $10 million to $40 million in funding for programs that focus on specific technical barriers in a specific energy area. ARPA-E groups its projects into two broad categories: transportation systems and stationary power systems. Project types can vary widely within these categories. In general, ARPA-E anticipates that the focus in FY2016 will be on transportation fuels and feedstocks; energy materials and processes; dispatchable energy; and sensors, information, and integration. The annual ARPA-E budget justification also contains a line item for program direction, which includes salaries and benefits, travel, support services, and related expenses. As passed by the House on May 1, 2015, the Energy and Water Development and Related Agencies Appropriations Act, 2016 ( H.R. 2028 ) would provide $280 million to ARPA-E in FY2016. This amount is $45 million (-14%) less than the FY2016 request. H.Rept. 114-91 accompanied H.R. 2028 when it was reported by the House Committee on Appropriations. The White House Office of Management and Budget (OMB) has indicated that the President's senior advisors will recommend a veto if the President is presented with H.R. 2028 , as passed by the House. The "Statement of Administration Policy" cites insufficient funding for ARPA-E as one of several reasons behind the Administration's opposition. As reported by the Senate Committee on Appropriations, H.R. 2028 would provide $291 million to ARPA-E in FY2016. This amount is $11 million more than both the FY2015 enacted and House-passed levels, but $33 million less than the Administration request. S.Rept. 114-54 accompanied H.R. 2028 when it was reported by the Senate Committee on Appropriations. Table 3 shows ARPA-E authorizations of appropriations, budget requests, and appropriations since the agency was first authorized in 2008. Congress has funded ARPA-E at approximately $280 million since FY2012—with the exception of FY2013, when the process commonly known as sequestration (as well as enacted rescissions) reduced the agency's funding level to about $250 million. ARPA-E is a comparatively new addition to the federal research and development (R&D) portfolio. Given the nature of R&D, which can take decades to produce widely recognized or transformative results, it may be many years before ARPA-E's ultimate impact is fully understood. Some early concerns about the agency focused on perceived differences between ARPA-E and the DARPA model. These include differences in the markets for defense and energy-related products. DARPA, for example, has a built-in customer (the U.S. military), which ARPA-E does not have. Further, some analysts have argued that industrial relationships and characteristics of the energy sector (including powerful incumbent firms and the wide array of energy-dependent products) have the potential to stop the dissemination of disruptive innovations. It is not clear whether these early concerns have become actual challenges for ARPA-E, or whether ARPA-E has been able to adjust and respond to its unique position. It is also possible that factors perceived (rightly or wrongly) as key to the success of DARPA may not be as important to the success of ARPA-E. Other early congressional concerns focused on whether ARPA-E would compete with, duplicate, or otherwise undermine other DOE research units, such as the Office of Science, and on whether the agency would focus too closely on late-stage technology development and commercialization activities that some policymakers perceive as best left to the private sector. The Government Accountability Office investigated such concerns in 2012 and found that ARPA-E had taken steps to avoid duplication with other DOE offices and that "most ARPA-E projects could not have been funded solely by the private sector."

The Advanced Research Projects Agency–Energy, or ARPA-E, was established within the Department of Energy to "overcome the long-term and high-risk technological barriers in the development of energy technologies" (P.L. 110-69, §5012). Patterned after the widely lauded Defense Advanced Research Projects Agency (DARPA)—which played a key role in the development of critical technologies such as satellite navigation and the Internet—ARPA-E has supported more than 400 energy technology research projects since Congress first funded it in FY2009. This budget and appropriations tracking report describes selected major items from the Administration's FY2016 budget request for ARPA-E and tracks legislative action on FY2016 appropriations to the agency. It also provides selected historical funding data. This report has been updated to include House-passed amounts for FY2016. It will be updated to include FY2016 Senate-passed amounts and final enacted FY2016 appropriations. Overall, the Obama Administration has requested $325 million for ARPA-E in FY2016, a $45 million (16%) increase over the FY2015 enacted level of $280 million. The House-passed Energy and Water Development and Related Agencies Appropriations Act, 2016 (H.R. 2028) would provide $280 million to ARPA-E in FY2016. The White House Office of Management and Budget (OMB) issued a "Statement of Administration Policy" opposing the House-passed version of H.R. 2028. OMB cited a number of factors in its decision to oppose H.R. 2028 as passed by the House, including insufficient funding levels for ARPA-E. As reported by the Senate Committee on Appropriations, H.R. 2028 would provide $291 million to ARPA-E in FY2016. With the exception of FY2013—when ARPA-E was subject to reductions as a result of certain rescissions and under the process commonly known as sequestration—Congress has funded ARPA-E at about $280 million since FY2012.

T he Financial Services and General Government (FSGG) appropriations bill includes funding for the Department of the Treasury (Title I), the Executive Office of the President (EOP, Title II), the judiciary (Title III), the District of Columbia (Title IV), and more than two dozen independent agencies (Title V). The bill typically funds mandatory retirement accounts in Title VI, which also contains additional general provisions applying to the funding provided agencies through the FSGG bill. Title VII contains general provisions applying government-wide. The FSGG bills have often also contained provisions relating to U.S. policy toward Cuba. The House and Senate FSGG bills fund the same agencies, with one exception. The Commodity Futures Trading Commission (CFTC) is funded through the Agriculture appropriations bill in the House and the FSGG bill in the Senate. This structure has existed in its current form since the 2007 reorganization of the House and Senate Committees on Appropriations. Although financial services are a major focus of the bills, FSGG appropriations bills do not include many financial regulatory agencies, which are instead funded outside of the appropriations process. On February 9, 2016, then-President Obama submitted his FY2017 budget request. The request included a total of $46.5 billion for agencies funded through the FSGG appropriations bill, including $330 million for the CFTC. On June 15, 2016, the House Committee on Appropriations reported a Financial Services and General Government Appropriations Act, 2017 ( H.R. 5485 , H.Rept. 114-624 ). Total FY2017 funding in the reported bill would have been $43.5 billion, with another $250 million for the CFTC included in the Agriculture appropriations bill ( H.R. 5054 , H.Rept. 114-531 ), which was reported on April 26, 2016. The combined total of $43.8 billion would have been about $2.8 billion below the President's FY2017 request with most of this difference in the funding for the Department of the Treasury and the General Services Administration (GSA). After a number of amendments on the floor, the House of Representatives passed H.R. 5485 on July 7, 2016. Although funding was shifted among some FSGG agencies, the overall level remained unchanged. On June 16, 2016, the Senate Committee on Appropriations reported the Financial Services and General Government Act, 2017 ( S. 3067 , S.Rept. 114-280 ). S. 3067 would have appropriated $44.4 billion for FY2017, about $2.2 billion below the President's request. As with the House bill, most of this difference is due to the Treasury and GSA. With the end of FY2016 approaching and no permanent FSGG appropriations bill enacted, Congress passed, and the President signed, H.R. 5325 / P.L. 114-223 . Division C of this act provided for continuing appropriations through December 9, 2016, generally termed a continuing resolution (CR). The CR provides funding for most FSGG agencies at the FY2016 funding rate subject to an across-the-board decrease of 0.496% (pursuant to Section 101(b) of Division C). It also provides appropriations in the Military Construction and Veterans Affairs Appropriations Act for all of FY2017 (Division A), as well as emergency funds to combat the Zika virus and provide relief for flood victims in Louisiana and other affected states (Division B). In addition to the funding for FSGG agencies as described, the CR contains a number of deviations from general formula. These "anomalies" focused on funding related to the presidential transition. Two further CRs were enacted: P.L. 114-254 provided funding through April 28, 2017, and a third, P.L. 115-30 provided funding through May 5, 2017. The House of Representatives passed H.R. 244 on May 3, 2017, followed by Senate passage on May 4 and enactment on May 5. FSGG appropriations, including the CFTC, were provided in Division E. FY2017 FSGG appropriations totaled $43.3 billion, approximately $3.2 billion below the President's request. Table 1 reflects the status of FSGG appropriations measures at key points in the appropriations process. Table 2 lists the broad amounts requested by the President and included in the various FSGG bills, largely by title, and Table 3 details the amounts for the independent agencies. Specific columns in Table 2 and Table 3 are FSGG agencies' enacted amounts for FY2016, the President's FY2017 request, the FY2017 amounts from H.Rept. 114-624 and H.Rept. 114-531 , the FY2017 amounts from S.Rept. 114-280 , and the enacted FY2017 amounts from the Explanatory Statement in the Congressional Record. Although financial services are a focus of the FSGG bill, the bill does not actually include funding for the regulation of much of the financial services industry. Financial services as an industry is often subdivided into banking, insurance, and securities. Federal regulation of the banking industry is divided among the Federal Reserve, the Federal Deposit Insurance Corporation (FDIC), the Office of Comptroller of the Currency (OCC), and the Bureau of Consumer Financial Protection (generally known as the Consumer Financial Protection Bureau, or CFPB). In addition, credit unions, which operate similarly to many banks, are regulated by the National Credit Union Administration (NCUA). None of these agencies receives its primary funding through the appropriations process, with only the FDIC inspector general and a small program operated by the NCUA currently funded in the FSGG bill. Insurance generally is regulated at the state level with some oversight at the holding company level by the Federal Reserve. There is a relatively small Federal Insurance Office (FIO) inside of the Treasury, which is funded through the Departmental Offices account, but FIO has no regulatory authority. Federal securities regulation is divided between the SEC and the CFTC, both of which are funded through appropriations. The CFTC funding is a relatively straightforward appropriation from the general fund, whereas the SEC funding is provided by the FSGG bill, but then offset through fees collected by the SEC. Although funding for many financial regulatory agencies may not be provided by the FSGG bill, legislative provisions that would affect some of these agencies have often been included. H.R. 5485 would change the funding procedure for the CFPB, with future funding to be provided by congressional appropriations rather than the current situation in which primary CFPB funding is provided through unappropriated funds transferred from the Federal Reserve. The House bill also includes other provisions that would amend the Dodd-Frank Act, such as changing the leadership of the CFPB to a five-person commission and changing the authority of the Financial Stability Oversight Council (FSOC). Previous FSGG bills have also included similar Dodd-Frank Act changes that have proven controversial in the past. P.L. 115-31 did not include the CFPB nor the FSOC provisions from H.R. 5485 . The House and Senate Committees on Appropriations reorganized their subcommittee structures in early 2007. Each chamber created a new Financial Services and General Government Subcommittee. In the House, the jurisdiction of the FSGG Subcommittee comprised primarily of agencies that had been under the jurisdiction of the Subcommittee on Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies, commonly referred to as "TTHUD." In addition, the House FSGG Subcommittee was assigned four independent agencies that had been under the jurisdiction of the Science, State, Justice, Commerce, and Related Agencies Subcommittee: the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), the Securities and Exchange Commission (SEC), and the Small Business Administration (SBA). In the Senate, the jurisdiction of the new FSGG Subcommittee was a combination of agencies from the jurisdiction of three previously existing subcommittees. The District of Columbia, which had its own subcommittee in the 109 th Congress, was placed under the purview of the FSGG Subcommittee, as were four independent agencies that had been under the jurisdiction of the Commerce, Justice, Science, and Related Agencies Subcommittee: the FCC, FTC, SEC, and SBA. In addition, most of the agencies that had been under the jurisdiction of the TTHUD Subcommittee were assigned to the FSGG Subcommittee. As a result of this reorganization, the House and Senate FSGG Subcommittees have nearly identical jurisdictions, except that the CFTC is under the jurisdiction of the FSGG Subcommittee in the Senate and the Agriculture Subcommittee in the House. Table 4 below lists various departments and agencies funded through FSGG appropriations and the names and contact information for the CRS expert(s) on these departments and agencies.

The Financial Services and General Government (FSGG) appropriations bill includes funding for the Department of the Treasury, the Executive Office of the President (EOP), the judiciary, the District of Columbia, and more than two dozen independent agencies. The House and Senate FSGG bills fund the same agencies, with one exception. The Commodity Futures Trading Commission (CFTC) is funded through the Agriculture appropriations bill in the House and the FSGG bill in the Senate. This structure has existed since the 2007 reorganization of the House and Senate Committees on Appropriations. On February 9, 2016, then-President Obama submitted his FY2017 budget request. The request included a total of $46.5 billion for agencies funded through the FSGG appropriations bill, including $330 million for the CFTC. On June 15, 2016, the House Committee on Appropriations reported a Financial Services and General Government Appropriations Act, 2017 (H.R. 5485, H.Rept. 114-624). Total FY2017 funding in the reported bill would have been $43.5 billion, with another $250 million for the CFTC included in the Agriculture appropriations bill (H.R. 5054, H.Rept. 114-531), which was reported on April 26, 2016. The combined total of $43.8 billion would have been about $2.8 billion below the President's FY2017 request. After a number of amendments on the floor, the House of Representatives passed H.R. 5485 on July 7, 2016. Although funding was shifted among some FSGG agencies, the overall level remained unchanged. On June 16, 2016, the Senate Committee on Appropriations reported the Financial Services and General Government Act, 2017 (S. 3067, S.Rept. 114-280). S. 3067 would have appropriated $44.4 billion for FY2017, about $2.2 billion below the President's request. S. 3067 was not considered on the Senate floor during the 114th Congress. No FY2017 FSGG appropriations were enacted prior to the end of FY2016. On September 29, 2016, the President signed P.L. 114-223. Division C of this act provided for continuing appropriations through December 9, 2016, generally termed a continuing resolution (CR). P.L. 114-223 provided funding for most FSGG agencies at the FY2016 funding rate subject to an across-the-board decrease of 0.496% (pursuant to Section 101(b) of Division C). This was followed by a second CR, P.L. 114-254, which provided funding through April 28, 2017, and a third, P.L. 115-30, which provided funding through May 5, 2017. The Consolidated Appropriations Act, 2017 (P.L. 115-31/H.R. 244) was enacted on May 5, 2017, following House passage on May 3 and Senate passage on May 4. FSGG appropriations, including the CFTC, were provided in Division E. FY2017 FSGG appropriations totaled $43.3 billion, approximately $3.2 billion below the President's request. Although financial services are a major focus of the FSGG appropriations bills, these bills do not include funding for many financial regulatory agencies, which are funded outside of the appropriations process. The FSGG bills do, however, often contain additional legislative provisions relating to such agencies.

When the President declares a state of emergency after a natural or other major disaster, the declaration gives the federal government the authority to engage in various emergency response activities, many of which federal agencies provide through contracts with private businesses, including those for debris removal, reconstruction, and the provision of supplies. Federal agencies’ contracts with private businesses, whether made in the normal course of agency operations or specifically related to a natural disaster declaration, in most cases, are subject to certain goals to increase participation by various types of small businesses. The Small Business Act requires that the President set a governmentwide goal each fiscal year for small business participation for the total value of all prime contracts awarded directly by an agency. Additionally, the Small Business Act sets annual prime contract dollar goals for participation by five specific types of small businesses: small businesses, small disadvantaged businesses, businesses owned by women, businesses owned by service-disabled veterans, and businesses located in historically underutilized business zones (HUBZone). The Stafford Act also requires federal agencies to give contracting preferences, to the extent feasible and practicable, to organizations, firms, and individuals residing in or doing business primarily in the area affected by a major disaster or emergency. The Federal Acquisition Regulation (FAR) implements many federal procurement statutes and provides executive agencies with uniform policies and procedures for acquisition. For example, the FAR generally requires that executive agencies report information about procurements directly to the Federal Procurement Data System-Next Generation (FPDS-NG), a governmentwide contracting database that collects, processes, and disseminates official statistical data on all federal contracting activities that are greater than the micro-purchase threshold (generally $3,000). This system automatically obtains from other systems or online resources additional information that is importan procurement, such as the contractor’s location. The FAR also requires agencies to measure small business participation in their acquisition programs. A small business may participate via prime contracts—which are contracts awarded directly by a federal agency—or through subcontracts. Any business receiving a contract directly from a federal executive agency for more than the simplified acquisition threshold must agree in the contract that small businesses will be given the “maximum practicable opportunity” to participate in the contract “consistent with its efficient performance.” Additionally, in general, for acquisitions (or modifications to contracts) that (1) are individually expected to exceed $650,000 ($1.5 million for construction contracts) and (2) have subcontracting possibilities, the solicitation shall require the apparently successful offeror in a negotiated acquisition to negotiate a subcontracting plan that is acceptable to the contracting officer, and each invitation for bid shall require the bidder selected for award to submit a subcontracting plan to be eligible for award. The subcontracting plan must include certain information, such as a description of the types of work the prime contractor believes it is likely to award to subcontractors, as well as goals, expressed as a percentage of total planned subcontracting dollars, for the use of small businesses. Generally, contracts that offer subcontracting possibilities and are expected to exceed the monetary thresholds that we have previously mentioned are to include certain clauses. These clauses require that for contracts that have individual subcontracting plans, prime contractors generally must semiannually and at project completion report on their progress toward reaching the goals in their subcontracting plans. Generally, contractors that have individual subcontracting plans are required to report on their subcontracting goals and accomplishments twice a year to the federal government through the Electronic Subcontracting Reporting System (eSRS), which is a governmentwide database for capturing this information. Furthermore, the agencies’ administrative contracting officers are responsible for monitoring the prime contractors’ activities and evaluating and documenting contractor performance under any subcontracting plan included in the contract. The contracting officer is tasked with acknowledging receipt of the reports submitted to eSRS. Federal agencies directly awarded $20.5 billion in contracts nationwide between fiscal years 2005 and 2011 for recovery efforts related to Hurricanes Katrina and Rita. Of this $20.5 billion, small businesses located in four Gulf Coast states received approximately $2.7 billion (13.3 percent), and small businesses in the rest of the United States received United States received about $2.6 billion (see fig. 1). about $2.6 billion (see fig. 1). Among the four Gulf Coast states in our review, Louisiana small businesses directly received the greatest amount of federal contract funds, about $1.4 billion. However, Alabama had the highest proportion (47 percent) of total prime contract dollars awarded to small businesses (see fig. 2). In the four states, the amount of federal contract funds directly awarded to specific types of small businesses for Hurricanes Katrina- and Rita- related recovery efforts varied (see fig. 3). Small disadvantaged businesses: Of the approximately $2.7 billion that went directly to small businesses, about $804 million (29 percent) went to small disadvantaged businesses. Small disadvantaged businesses in Louisiana received the greatest amount of federal contract funds awarded to this category (more than $420 million). HUBZones: Small businesses in HUBZones directly received about $560 million (20 percent of federal contract funds directly awarded to Gulf Coast small businesses). Small businesses in HUBZones in Louisiana received the greatest amount (about $292 million). Women-owned small businesses: About $381 million were directly awarded to women-owned small businesses (14 percent of all federal contract funds directly awarded to Gulf Coast small businesses). Women-owned small businesses in Louisiana received the greatest amount (approximately $182 million). Veteran-owned small businesses: About $270 million (or 10 percent of federal contracts directly awarded to Gulf Coast small businesses) went to this category. Veteran-owned small businesses in Louisiana received about $180 million, the most in the Gulf Coast states. The Corps and DOD could not demonstrate that they consistently were monitoring subcontracting accomplishment information as required. As we have previously discussed, subcontracting plans are generally required for construction contracts (or modifications to contracts) that are expected to exceed $1.5 million and that have subcontracting possibilities. The FAR states that subcontracting plans must include assurances that prime contractors will report on their progress toward reaching their subcontracting goals. Generally, contracts that offer subcontracting possibilities and are expected to exceed the monetary thresholds above are to include certain clauses. In general, these clauses require contractors to submit these reports semiannually and at project completion. The Corps and DOD use these reports to monitor contractor performance under subcontracting plans. We reviewed the 57 construction contracts that the Corps, DHS, DOD, and GSA awarded directly to large businesses in fiscal years 2005– 2009 for hurricane- related recovery and that were listed in FPDS-NG as having subcontracting plans. The Corps awarded 29 of these contracts but could not provide subcontracting accomplishment report information for 11. DOD awarded 14 contracts and could not provide information for 2 (see table 1). Without these reports, either in eSRS or paper form, contracting officials lacked a key tool for monitoring contractors’ performance under subcontracting plans. As of 2005, all contractors with subcontracting reporting requirements related to contracts with civilian agencies were generally required to submit, with some exceptions, summary subcontract reports into eSRS, a Web-based govermentwide subcontracting system that allows contractors to submit and agency officials to review subcontracting accomplishment reports electronically rather than using paper forms. DOD implemented eSRS incrementally and began primarily relying on eSRS for subcontract reporting as of 2009. The development of eSRS was intended to create more visibility and transparency into the process of gathering information on federal subcontracting accomplishments. In addition to requirements for contractors to submit subcontracting accomplishment information, the FAR requires that agency contracting officers review subcontracting plans for adequacy and take action to enforce the terms of the contract if notified that the contractor is failing to meet its commitments under their subcontracting plan. Agency administrative contracting officials are required to provide information to the contracting officer on the extent to which the contractor is meeting subcontracting plan goals and to notify the contracting officer if the contractor is failing to comply in good faith with the subcontracting plan. In determining whether a contractor failed to make a good-faith effort to comply with its subcontracting plan, a contracting officer must look to the totality of the contractor’s actions, consistent with the information and assurances provided in its plan. When considered in the context of the contractor’s total effort in accordance with its plan, failure to submit contracting accomplishment reports may be considered an indicator of a failure to make a good-faith effort. These requirements were in place prior to the 2005 hurricanes and have continued in the eSRS environment. New requirements were added to the FAR in April 2008 that additionally require that contracting officers acknowledge receipt of or reject the subcontracting accomplishment reports submitted by contractors in eSRS. In addition, DHS, GSA, DOD, and the Corps have agency guidance that spells out the contract administration duties necessary to monitor contractor compliance with subcontracting plan reporting requirements. Without subcontracting accomplishment information, contracting officials at the Corps and DOD lack a key tool used to monitor contractor performance under subcontracting plans. In the absence of these reports, the Corps and DOD could not demonstrate that they were consistently monitoring contractor performance under the plans. As we have previously noted, the Corps did not provide subcontracting accomplishment report information for 11 contracts and could not explain why the information was unavailable. DOD did not provide us with subcontracting information on 2 of 14 construction contracts we reviewed. DOD officials told us that after searching retained records, they could not find any paper or electronic subcontracting accomplishment reports. We concluded that without monitoring, the Corps and DOD were limited in their ability to determine the extent to which their prime contractors followed subcontracting plans. We recommended that the Secretary of Defense take steps to ensure that contracting officials consistently comply with requirements to monitor the extent to which contractors were meeting subcontracting plan goals, including requirements for contractors with subcontracting plans to submit subcontracting accomplishment reports. Once these reports are submitted, contracting officials should maintain and regularly review them to determine whether contractors have been following subcontracting plans. To ensure consistent compliance, DOD and the Corps small business offices should monitor such actions by contracting officials, as deemed appropriate. DOD did not concur with the implication that its contracting personnel did not enforce requirements. We recently received information from both DOD and the Corps that indicates that they have initiated actions to address our recommendation. Chair Landrieu, Ranking Member Snowe, this concludes my prepared statement. I would be happy to answer any questions at this time. For further information on this testimony, please contact William T. Woods at (202) 512-4841 or woodsw@gao.gov or William B. Shear at (202) 512-8678 or shearw@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this statement. Individuals making key contributions to this testimony included Marshall Hamlett, Assistant Director; Christine Houle; Julia Kennon; Triana McNeil; Marc Molino; Barbara Roesmann, and Alyssa Weir. This is a work of the U.S. government and is not subject to copyright protection in the United States. The published product may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.

This testimony discusses small business participation in Gulf Coast rebuilding after Hurricanes Katrina and Rita. Federal agencies directly awarded $20.5 billion in contracts nationwide between fiscal years 2005 and 2011 for recovery efforts related to these hurricanes. These contracts are subject to federal procurement regulations and, in most cases, are generally subject to certain goals to increase participation by small businesses. This statement is based on a report we issued in July 2010, which discussed the extent to which Gulf Coast small businesses received federal contract funds for recovery efforts, with data on contract funds updated through fiscal year 2011 where possible. More specifically, the statement discusses (1) the amounts that small businesses nationwide and small businesses in four Gulf Coast states received directly from federal agencies through contracts for relief and recovery efforts related to Hurricanes Katrina and Rita; and (2) the extent to which four agencies--the U.S. Army Corps of Engineers (Corps), Department of Homeland Security (DHS), Department of Defense (DOD) excluding the Corps, and General Services Administration (GSA)--monitored subcontracting accomplishment information as required for selected contracts. Small businesses located in four Gulf Coast states (Alabama, Florida, Louisiana, and Texas) received about $2.7 billion (13.3 percent) of the $20.5 billion federal agencies directly awarded nationwide in contracts for hurricane recovery between fiscal years 2005 and 2011. Small businesses in the rest of the United States received about $2.6 billion (12.9 percent). The Corps and the rest of DOD--two of four agencies that awarded the most in federal contracts for hurricane recovery--could not demonstrate that they consistently were monitoring subcontracting accomplishment data for 13 of the 43 construction contracts for which subcontracting plans were required. We recommended that the Secretary of Defense take steps to ensure that contracting officials with the Corps and other DOD departments consistently comply with requirements to monitor the extent to which contractors were meeting subcontracting plan goals. DOD did not concur with the implication that its contracting personnel did not enforce requirements. We recently received information from both DOD and the Corps that indicates that they have initiated actions to address our recommendation.

T his report summarizes the federal civil remedies and criminal penalties that may be available for violations of the rights granted by the federal intellectual property laws: the Copyright Act of 1976, the Patent Act of 1952, the Trademark Act of 1946 (conventionally known as the Lanham Act), and the Economic Espionage Act of 1996. Intellectual property (IP) law has four major branches, applicable to different types of subject matter: copyright (original artistic and literary works of authorship), patent (inventions of processes, machines, manufactures, and compositions of matter that are useful, new, and nonobvious), trademark (commercial symbols), and trade secret (confidential, commercially valuable business information). The source of federal copyright and patent law originates with the Copyright and Patent Clause of the U.S. Constitution, which authorizes Congress "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." By contrast, the Commerce Clause provides the constitutional basis for federal trademark law and trade secret law. The Copyright Act, Patent Act, and Lanham Act provide legal protection for intellectual property against unauthorized use, theft, and other violations of the rights granted by those statutes to the IP owner. The Copyright Act provides copyright owners with the exclusive right to control reproduction, distribution, public performance, and display of their copyrighted works. The Patent Act grants patent holders the right to exclude others from making, using, offering for sale, or selling their patented invention throughout the United States, or importing the invention into the United States. The Lanham Act allows sellers and producers of goods and services to prevent a competitor from (1) using any counterfeit, copy, or imitation of their trademarks (that have been registered with the U.S. Patent and Trademark Office), in connection with the sale of any goods or services in a way that is likely to cause confusion, mistake, or deception, or (2) using in commercial advertising any word, term, name, symbol, or device, or any false or misleading designation of origin or false or misleading description or representation of fact, which: (a) is likely to cause confusion, mistake, or deception as to affiliation, connection, or association, or as to origin, sponsorship, or approval, of his or her goods, services, or commercial activities by another person, or (b) misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities. In addition, the Lanham Act grants to owners of "famous" trademarks the right to seek injunctive relief against another person's use in commerce of a mark or trade name if such use causes dilution by blurring or tarnishment of the distinctive quality of the famous trademark. An alternative to patent law protection may be found in trade secret law, which grants inventors proprietary rights to particular technologies, processes, designs, or formula that may not be able to satisfy the rigorous statutory standards for patentability. Until 1996, trade secret protection was primarily governed by state law. Congress enacted the federal Economic Espionage Act of 1996 to provide criminal penalties (and authorize the Attorney General to seek injunctive relief) for the theft of trade secrets by domestic and foreign entities, in certain circumstances. The Defend Trade Secrets Act of 2016 amended the Economic Espionage Act to provide private parties with a federal civil remedy for trade secret misappropriation. Enforcement of IP rights may be accomplished by the IP owner bringing a lawsuit against an alleged infringer. The U.S. Department of Justice may also criminally prosecute particularly egregious violators of the IP laws in order to impose greater punishment and possibly deter other would-be violators. In certain circumstances, a variety of federal agencies may become involved in IP rights enforcement: for example, the U.S. Customs and Border Protection agency has the power to seize counterfeit goods upon their attempted importation in the United States; the International Trade Commission may investigate and adjudicate allegations of unfair trade practices due to the importing of goods that were produced as a result of trade secret theft or that infringe U.S. patents, trademarks, or copyrights; and the U.S. Trade Representative, the U.S. Department of Commerce's International Trade Administration, and the U.S. State Department are all involved in promoting and seeking IP rights enforcement by trading partners and other foreign countries. In copyright cases, the statute of limitations for initiating a civil action is within three years after the claim accrued, while a criminal proceeding must be commenced within five years after the cause of action arose. Although there is no express federal statute of limitations for civil trademark infringement claims, federal courts generally follow the limitations period for the most analogous state-law cause of action from the state in which the claim is heard; courts have also applied the equitable doctrine of laches (unreasonable, prejudicial delay in commencing a lawsuit) to determine whether a trademark infringement claim is untimely. One federal appellate court has determined that criminal trademark infringement prosecutions are governed by the general five-year statute of limitations for non-capital offenses under Title 18 of the U.S. Code. Although there is no statute of limitations in patent infringement actions, the Patent Act specifies a time limit on monetary relief for patent infringement claims: damages are available only for infringement that occurs within the six years prior to the filing of the complaint or counterclaim for patent infringement. Finally, federal law provides a three-year statute of limitations period for a civil action involving the misappropriation of a trade secret. The Lanham Act, Copyright Act, and Economic Espionage Act have criminal and civil provisions for violations of their respective provisions, while the Patent Act only provides civil remedies in the event of patent infringement. Federal courts determine the civil remedies in an action for infringement brought by the IP owner. If the federal government chooses to prosecute individuals or organizations for IP violations, the imprisonment terms are set forth in the substantive statutes describing the particular IP crime, while the criminal fine amount for violations of the trademark and copyright laws is determined in conjunction with 18 U.S.C. Section 3571 (which specifies the amount of the fine under Title 18 of the U.S. Code). In comparison, the criminal fine amount for economic espionage or trade secret theft is specified in the Economic Espionage Act itself. Information regarding the civil remedies and criminal penalties for violations of the copyright, trademark, patent, and trade secret laws is presented on the following pages in table-format. These penalties may be imposed upon conviction of the defendant in the case of a criminal prosecution, and the civil remedies follow a judgment of infringement reached by a federal judge or jury in a civil action. (Certain injunctive relief may be available prior to final judgment, such as temporary injunctions or impounding of infringing articles.) For any offense that provides forfeiture penalties, criminal forfeiture is available upon the conviction of the owner of the offending property; civil forfeiture is available if the government establishes that the infringing goods are subject to confiscation by a preponderance of the evidence. Restitution is available when the defendant is convicted of a criminal property offense. .

This report provides information describing the federal civil remedies and criminal penalties that may be available as a consequence of violations of the federal intellectual property laws: the Copyright Act of 1976, the Patent Act of 1952, the Trademark Act of 1946 (conventionally known as the Lanham Act), and the Economic Espionage Act of 1996. The report explains the remedies and penalties for the following intellectual property offenses: 17 U.S.C. §501 (copyright infringement); 17 U.S.C. §506(a)(1)(A) and 18 U.S.C. §2319(b) (criminal copyright infringement for profit); 17 U.S.C. §506(1)(B) and 18 U.S.C. §2319(c) (criminal copyright infringement without a profit motive); 17 U.S.C. §506(a)(1)(c) and 18 U.S.C. §2319(d) (pre-release distribution of a copyrighted work over a computer network); 17 U.S.C. §1309 (infringement of a vessel hull or deck design); 17 U.S.C. §1326 (falsely marking an unprotected vessel hull or deck design with a protected design notice); 17 U.S.C. §§1203, 1204 (circumvention of copyright protection systems); 18 U.S.C. §2319A (bootleg recordings of live musical performances); 18 U.S.C. §2319B (unauthorized recording of films in movie theaters); 15 U.S.C. §1114(1) (unauthorized use in commerce of a reproduction, counterfeit, or colorable imitation of a federally registered trademark); 15 U.S.C. §1125(a) (trademark infringement due to false designation, origin, or sponsorship); 15 U.S.C. §1125(c) (dilution of famous trademarks); 15 U.S.C. §§1125(d) and 1129 (cybersquatting and cyberpiracy in connection with Internet domain names); 18 U.S.C. §2318 (counterfeit/illicit labels and counterfeit documentation and packaging for copyrighted works); 35 U.S.C. §271 (patent infringement); 35 U.S.C. §289 (infringement of a design patent); 35 U.S.C. §292 (false marking of patent-related information in connection with articles sold to the public); 28 U.S.C. §1498 (unauthorized use of a patented invention by or for the United States, or copyright infringement by the United States); 19 U.S.C. §1337 (unfair practices in import trade); 18 U.S.C. §2320 (trafficking in counterfeit trademarks); 19 U.S.C. §1526(e), 15 U.S.C. §1124 (importing merchandise bearing counterfeit marks),18 U.S.C. §2320(h) (transshipment and exportation of counterfeit goods); 18 U.S.C. §1831 (trade secret theft to benefit a foreign entity); and 18 U.S.C. §1832 (theft of trade secrets for commercial advantage).

Since its founding in 1718, the city of New Orleans and its surrounding areas have been subject to numerous floods from the Mississippi River and hurricanes. The greater New Orleans metropolitan area, composed of Orleans, Jefferson, St. Charles, St. Bernard, and St. Tammany parishes, sits in the tidal lowlands of Lake Pontchartrain and is bordered generally on its southern side by the Mississippi River. Lake Pontchartrain is a tidal basin about 640 square miles in area that connects with the Gulf of Mexico through Lake Borgne and the Mississippi Sound. While the area has historically experienced many river floods, a series of levees and other flood control structures built over the years were expected to greatly reduce that threat. The greatest natural threat posed to the New Orleans area continues to be from hurricane-induced storm surges, waves, and rainfalls. Several hurricanes have struck the area over the years including Hurricane Betsy in 1965, Hurricane Camille in 1969, and Hurricane Lili in 2002. The hurricane surge that can inundate coastal lowlands is the most destructive characteristic of hurricanes and accounts for most of the lives lost from hurricanes. Hurricane surge heights along the Gulf and Atlantic coasts can range up to 20 feet or more and there is growing concern that continuing losses of coastal wetlands and settlement of land in New Orleans has made the area more vulnerable to such storms. Because of such threats, a series of control structures, concrete floodwalls, and levees, was proposed for the area along Lake Pontchartrain in the 1960s. Congress first authorized construction of the Lake Pontchartrain and Vicinity, Louisiana Hurricane Protection Project in the Flood Control Act of 1965 to provide hurricane protection to areas around the lake in the parishes of Orleans, Jefferson, St. Bernard, and St. Charles. Although federally authorized, it was a joint federal, state, and local effort with the federal government paying 70 percent of the costs and the state and local interests paying 30 percent. The Corps was responsible for project design and construction and local interests were responsible for maintenance of levees and flood controls. The original project design, known as the barrier plan, included a series of levees along the lakefront, concrete floodwalls along the Inner Harbor Navigation Canal, and control structures, including barriers and flood control gates located at the Rigolets and Chef Menteur Pass areas. These structures were intended to prevent storm surges from entering Lake Pontchartrain and overflowing the levees along the lakefront. The original lakefront levees were planned to be from 9.3 feet to 13.5 feet high depending on the topography of the area directly in front of the levees. This project plan was selected over another alternative, known as the high-level plan, which excluded the barriers and flood control gates at the Rigolets and Chef Menteur Pass complexes and instead employed higher levees ranging from 16 feet to 18.5 feet high along the lakefront to prevent storm surges from inundating the protected areas. In the 1960s, the barrier plan was favored because it was believed to be less expensive and quicker to construct. As explained later in my statement, this decision was reversed in the mid-1980s. The cost estimate for the original project was $85 million (in 1961 dollars) and the estimated completion date was 1978. The original project designs were developed to combat a hurricane that might strike the coastal Louisiana region once in 200-300 years. The basis for this was the standard project hurricane developed by the Corps with the assistance of the United States Weather Bureau (now the National Weather Service). The model was intended to represent the most severe meteorological conditions considered reasonably characteristic for that region. The model projected a storm roughly equivalent to a fast-moving Category 3 hurricane. A Category 3 hurricane has winds of 111-130 miles per hour and can be expected to cause some structural damage from winds and flooding near the coast from the storm surge and inland from rains. Even before construction began on the project, it became evident that some changes to the project plan were needed. Based on updated Weather Bureau data on the severity of hurricanes, the Corps determined that the levees along the three main drainage canals, that drain water from New Orleans into Lake Pontchartrain, would need to be raised to protect against storm surges from the lake. The need for this additional work became apparent when Hurricane Betsy flooded portions of the city in September 1965. During the first 17 years of construction on the barrier plan, the Corps continued to face project delays and cost increases due to design changes caused by technical issues, environmental concerns, legal challenges, and local opposition to various aspects of the project. For example, foundation problems were encountered during construction of levees and floodwalls which increased construction time; delays were also encountered in obtaining rights-of-ways from local interests who did not agree with all portions of the plan. By 1981, cost estimates had grown to $757 million for the barrier plan, not including the cost of any needed work along the drainage canals, and project completion had slipped to 2008. At that time, about $171 million had been made available to the project and the project was considered about 50 percent complete, mostly for the lakefront levees which were at least partially constructed in all areas and capable of providing some flood protection although from a smaller hurricane than that envisioned in the plan. More importantly, during the 1970s, some features of the barrier plan were facing significant opposition from environmentalists and local groups who were concerned about environmental damages to the lake as well as inadequate protection from some aspects of the project. The threat of litigation by environmentalists delayed the project and local opposition to building the control complexes at Rigolets and Chef Menteur had the potential to seriously reduce the overall protection provided by the project. This opposition culminated in a December 1977 court decision that enjoined the Corps from constructing the barrier complexes, and certain other parts of the project until a revised environmental impact statement was prepared and accepted. After the court order, the Corps decided to change course and completed a project reevaluation report and prepared a draft revised Environmental Impact Statement in the mid-1980s that recommended abandoning the barrier plan and shifting to the high- level plan originally considered in the early 1960s. Local sponsors executed new agreements to assure their share of the non-federal contribution to the revised project. These changes are not believed to have had any role in the levee breaches recently experienced as the high-level design selected was expected to provide the same level of protection as the original barrier design. In fact, Corps staff believe that flooding would have been worse if the original proposed design had been built because the storm surge would likely have gone over the top of the barrier and floodgates, flooded Lake Pontchartain, and gone over the original lower levees planned for the lakefront area as part of the barrier plan. As of 2005, the project as constructed or being constructed included about 125 miles of levees and the following major features: New levee north of Highway U.S. 61 from the Bonnet Carré Spillway East Guide Levee to the Jefferson-St. Charles Parish boundary Floodwall along the Jefferson-St. Charles Parish boundary Enlarged levee along the Jefferson Parish lakefront Enlarged levee along the Orleans Parish lakefront Levees, floodwalls, and flood proofed bridges along the 17th Street, Orleans Avenue and London Avenue drainage canals Levees from the New Orleans lakefront to the Gulf Intracoastal Waterway Enlarged levees along the Gulf Intracoastal Waterway and the Mississippi New levee around the Chalmette area. The project also includes a mitigation dike on the west shore of Lake Pontchartrain. The current estimated cost of construction for the completed project is $738 million with the federal share being $528 million and the local share $210 million. The estimated completion date as of May 2005 for the whole project was 2015. The project was estimated to be from 60-90 percent complete in different areas. The work in Orleans Parish was estimated to be 90 percent complete with some work remaining for bridge replacement along the Orleans Avenue and London Avenue drainage canals. The floodwalls along the canals, where the recent breaches occurred, were complete. Jefferson Parish work was estimated to be 70 percent complete with work continuing on flood proofing the Hammond Highway bridge over 17th Street and two lakefront levee enlargements. Estimated completion for that work was 2010. In the Chalmette area work was estimated to be 90 percent complete with some levee enlargement work and floodwall work remaining. In St. Charles Parish work was 60 percent complete with some gaps still remaining in the levees. Closure of these gaps was scheduled by September 2005. Federal allocations for the project totaled $458 million as of the enactment of the fiscal year 2005 federal appropriation. This represents 87 percent of the Federal government’s responsibility of $528 million with about $70 million remaining to complete the project in 2015. Over the last 10 fiscal years (1996-2005), federal appropriations have totaled about $128.6 million and Corps reprogramming actions resulted in another $13 million being made available to the project. During that time, appropriations have generally declined from about $15-20 million annually in the earlier years to about $5-7 million in the last three fiscal years. While this may not be unusual given the state of completion of the project, the Corps’ project fact sheet from May 2005 noted that the President’s Budget request for fiscal years 2005 and 2006 and the appropriated amount for fiscal year 2005 were insufficient to fund new construction contracts. Among the construction efforts that could not be funded, according to the Corps, were the following: Levee enlargements in all four parishes Pumping station flood protection in Orleans Parish Floodgates and a floodwall in St. Charles Parish Bridge replacement in Orleans Parish. The Corps had also stated that it could spend $20 million in fiscal year 2006 on the project if the funds were available. The Corps noted that several levees had settled and needed to be raised to provide the design- level of protection. For the last few years, the project generally received the amount of funds appropriated to it and was not adversely affected by any Corps reprogramming actions. In recent years, questions have been raised about the ability of the project to withstand larger hurricanes than it was designed for, such as a Category 4 or 5, or even a slow-moving Category 3 hurricane that lingered over the area and produced higher levels of rainfall. Along this line, the Corps completed in 2002 a reconnaissance or pre-feasibility study on whether to strengthen hurricane protection along the Louisiana coast. A full feasibility study was estimated to take at least five years to complete and cost about $8 million. In March 2005, the Corps reported that it was allocating $79,000 to complete a management plan for the feasibility study and a cost-share agreement with local sponsors. The President’s fiscal year 2006 budget request did not include any funds for the feasibility project. In closing, the Lake Pontchartrain hurricane project has been under construction for nearly 40 years, much longer than originally envisioned and at much greater cost, although much of that can be attributed to inflation over these years, and the project is still not complete. Whether the state of completion of the project played a role in the flooding of New Orleans in the wake of Hurricane Katrina in August 2005 is still to be determined as are issues related to whether a project designed to protect against Category 4 or 5 hurricanes would or could have prevented this catastrophe. Mr. Chairman, this concludes my prepared testimony. We would be happy to respond to any questions that you or Members of the Subcommittee may have. This is a work of the U.S. government and is not subject to copyright protection in the United States. It may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.

The greatest natural threat posed to the New Orleans area is from hurricane-induced storm surges, waves, and rainfalls. A hurricane surge that can inundate coastal lowlands is the most destructive characteristic of hurricanes and accounts for most of the lives lost from hurricanes. Hurricane surge heights along the Gulf and Atlantic coasts can exceed 20 feet. The effects of Hurricane Katrina flooded a large part of New Orleans and breached the levees that are part of the U.S. Army Corps of Engineers (Corps) Lake Pontchartrain, and Vicinity, Louisiana Hurricane Protection Project. This project, first authorized in 1965, was designed to protect the lowlands in the Lake Pontchartrain tidal basin from flooding by hurricane-induced sea surges and rainfall. GAO was asked to provide information on (1) the purpose and history of the Lake Pontchartrain, and Vicinity, Louisiana Hurricane Protection Project and (2) funding of the project. GAO is not making any recommendations in this testimony. Congress first authorized the Lake Pontchartrain and Vicinity, Louisiana Hurricane Protection Project in the Flood Control Act of 1965. The project was to construct a series of control structures, concrete floodwalls, and levees to provide hurricane protection to areas around Lake Pontchartrain. The project, when designed, was expected to take about 13 years to complete and cost about $85 million. Although federally authorized, it was a joint federal, state, and local effort. The original project designs were developed based on the equivalent of what is now called a fast-moving Category 3 hurricane that might strike the coastal Louisiana region once in 200-300 years. As GAO reported in 1976 and 1982, since the beginning of the project, the Corps has encountered project delays and cost increases due to design changes caused by technical issues, environmental concerns, legal challenges, and local opposition to portions of the project. As a result, in 1982, project costs had grown to $757 million and the expected completion date had slipped to 2008. None of the changes made to the project, however, are believed to have had any role in the levee breaches recently experienced as the alternative design selected was expected to provide the same level of protection. In fact, Corps officials believe that flooding would have been worse if the original proposed design had been built. When Hurricane Katrina struck, the project, including about 125 miles of levees, was estimated to be from 60-90 percent complete in different areas with an estimated completion date for the whole project of 2015. The floodwalls along the drainage canals that were breached were complete when the hurricane hit. The current estimated cost of construction for the completed project is $738 million with the federal share being $528 million and the local share $210 million. Federal allocations for the project were $458 million as of the enactment of the fiscal year 2005 federal appropriation. This represents 87 percent of the federal government's responsibility of $528 million with about $70 million remaining to complete the project. Over the last 10 fiscal years (1996-2005), federal appropriations have totaled about $128.6 million and Corps reprogramming actions resulted in another $13 million being made available to the project. During that time, appropriations have generally declined from about $15-20 million annually in the earlier years to about $5-7 million in the last three fiscal years. While this may not be unusual given the state of completion of the project, the Corps' project fact sheet from May 2005 noted that the President's budget request for fiscal years 2005 and 2006, and the appropriated amount for fiscal year 2005 were insufficient to fund new construction contracts. The Corps had also stated that it could spend $20 million in fiscal year 2006 on the project if the funds were available. The Corps noted that several levees had settled and needed to be raised to provide the level of protection intended by the design.

The invasion of Normandy on June 6, 1944, was the largest air, land, and sea invasion ever undertaken, including over 5,000 ships, 10,000 airplanes, and over 150,000 American, British, Canadian, Free French, and Polish troops. There are no exact figures for the total number of D-Day participants nor exact casualty figures. Some historians estimate that more than 70,000 Americans and more than 80,000 combined British, Canadian, Free French, and Polish troops participated, including 23,000 men arriving by parachute and glider. According to estimates from the National D-Day Memorial Museum, the Allied forces suffered 9,758 casualties, of which 6,603 were Americans. The Jubilee of Liberty Medal was first awarded in June 1994 to American servicemen for their participation in the Battle of Normandy. The medals were minted at the request of the Regional Council of Normandy to be presented to veterans attending the 50 th anniversary of the D-Day landing on June 6, 1994. Eligible veterans included all who served in Normandy from June 6 to August 31, 1944, comprising land forces, off-shore supporting personnel, and airmen flying cover overhead. The only stipulation was that the medal be presented during an official ceremony, and the veteran be present to accept. On the front of the medal is inscribed, "Overlord 6 Juin 1944" on the upper part of the medal, with the flags of the allied nations and the names of the landing beaches completing the face of the medal. On the reverse side is the Torch of Freedom surrounded by the device of William the Conqueror 'Diex Aie' ("God is with us" in Norman French). Unfortunately, these medals are no longer being awarded by the French government. All medals to commemorate the 50 th anniversary ceremony on June 6, 1994, have been distributed by the French government. Additional medals for those veterans who were unable to attend the anniversary ceremony were later distributed through the Association Debarquement et Bataille de Normandie 1944 in France, which is now defunct. Some Members of Congress have awarded the Jubilee of Liberty Medals to U.S. veterans who were unable to attend the ceremony in France on June 6, 1994. These medals were obtained either from the Association Debarquement et Bataille de Normandie 1944 or from a commercial source. Commercially-minted Jubilee of Liberty Medals are being manufactured by Sims Enterprises, a private company in Kansas, that is selling these medals at a cost of $17 for each individual medal (includes shipping and handling ) or $13 each for orders of 10 or more medals (plus an additional charge for shipping). Please note: This company is not affiliated with either the French or U.S. governments. Veterans are asked to send copies not the originals of their service record for verification; copies will not be returned unless specifically requested along with the medals. For additional information, please contact Sims Enterprises, 617 Main Street, Newton, KS 67114; Tel: [phone number scrubbed]. The French government is no longer distributing the Jubilee of Liberty medals. Instead, the government of France is distributing a "Thank-You-America Certificate 1944-1945" for U.S. veterans. According to a letter sent in December 2000 by former Ambassador of France to the United States, His Excellency François Bujon de l'Estang, to then Secretary of Veterans Affairs Hershel W. Gober, the government of France is issuing a certificate to recognize the participation of American and allied soldiers who participated in the Normandy landing and subsequent battles leading to the liberation of France. Veterans who served on French territory and in French territorial waters and airspace, from June 6, 1944, to May 8, 1945, are still eligible. The certificate will not be issued posthumously. In agreement with the U.S. Secretary of Veterans Affairs, the French Consulates General and state veterans affairs offices, veterans service organizations, and veterans associations will identify eligible veterans, review and certify the applications, prepare the certificates, and organize the ceremonies to present the certificates. D-Day participants living in Delaware, the District of Columbia, Maryland, Ohio, Pennsylvania, Virginia, and West Virginia may obtain applications for certificates from the French embassy in Washington, DC, or directly from the Internet at http://www.ambafrance-us.org/news/statmnts/2000/ww2/index.asp . French Consulate/"Thank-You-America" 4101 Reservoir Road Washington, DC 20007 Tel: [phone number scrubbed] Fax: [phone number scrubbed] D-Day veterans living in other states may wish to contact the nearest French consulate listed below. The American Battle Monuments Commission's Web page on the Normandy Cemetery at http://www.abmc.gov/cemeteries/cemeteries/no.php has information on the cemetery and links on how to locate those interred at American World War II cemeteries overseas. The National D-Day Museum in New Orleans, Louisiana, at http://www.ddaymuseum.org provides historical information on events from D-Day as well as information on annual commemorative events. The website of the National D-Day Memorial in Bedford, Virginia, at http://www.dday.org includes information on the memorial, local events, and tours. The official website in English of the Comité Régional de Tourisme de Normandie lists various D-Day tours in the region as well as general tourist information at http://www.normandy-tourism.org/gb/16tours/index.html . The official site of the Western France Tourism Board offers information on tours and travel in the region by clicking on "Normandy" at http://www.westernfrancetouristboard.com .

This report details the Jubilee of Liberty Medal awarded to U.S. veterans by the French government to commemorate the 50 th anniversary of the invasion of Normandy by the Allied forces on June 6, 1994 (D-Day). These medals are no longer distributed by the French government. Included is information on how to obtain this medal from a commercial source and how U.S. veterans may obtain an official "Thank-You-America 1944-1945" certificate of participation from the French government. This report will be updated as needed.

The federal government's basic procurement or acquisition process involves an agency identifying the goods and services it needs (also known as the agency's "requirements"), determining the most appropriate method for purchasing these items, and carrying out the acquisition. Although this process is simple in theory, any given procurement can be complex, involving a multitude of decisions and actions. A contracting officer may need to determine, for example, whether to use a federal supply schedule (see below ), what type of contract to use, whether simplified acquisition procedures may be used, or whether the procurement should be set aside for small businesses. Thus, this report does not attempt to describe every possible type of procurement. Instead, it describes the most common elements of the federal procurement process and resources that may be used in that process. The primary source of federal procurement information and guidance is the Federal Acquisition Regulation , which consists of Parts 1-53 of Title 48 of the Code of Federal Regulations (C.F.R.). Available at http://www.acquisition.gov/far , the FAR covers, for example, contractor qualifications, types of contracts, small business programs, and federal supply schedule contracting. The FAR also includes, in Part 2, definitions of procurement words and terms, and, in Part 52, solicitation provisions and contract clauses. With a few exceptions, a firm that wants to compete for federal government contracts must meet at least two requirements: (1) obtain a Data Universal Numbering System (DUNS) number, which is a unique nine-digit identification number for each physical location of a business, available at http://www.dnb.com/get-a-duns-number.html ; and (2) register with the government's System for Award Management (SAM), at https://www.sam.gov . Additional requirements specific to a particular procurement may be found in the applicable solicitation (see below). With regard to federal contracting, small businesses may be able to take advantage of certain programs or preferences, including various set-aside programs, and depending upon eligibility criteria. Additionally, the federal government has established small business goals for agencies (e.g., the governmentwide goal for small businesses is 23% of the "total value of all prime contract awards for each fiscal year" ). Determining whether a particular firm qualifies as a small business for federal government programs involves, generally, applying the federal government's size standards. A size standard exists for each North American Industry Classification System (NAICS) code. The Small Business Administration's (SBA's) Table of Small Business Size Standards, available at https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf , shows the size standard for each NAICS code, which is either the firm's average annual receipts or its average employment. Essentially, the federal acquisition process begins when an agency determines its requirements and how to purchase them. If the agency's contracting officer determines that the appropriate method for procuring the goods or services is a contract, and the contract amount is greater than $25,000, then the agency posts a solicitation on the Federal Business Opportunities (FedBizOpps) website, available at https://www.fbo.gov . At a minimum, a solicitation identifies what an agency wants to buy, provides instructions to would-be offerors, identifies the source selection method that will be used to evaluate offers, and includes a deadline for the submission of bids or proposals. Agencies also may post solicitations on their own websites and, in exceptional circumstances, may post solicitations on their websites instead of on FedBizOpps. Following the deadline for companies to submit their offers, agency personnel evaluate offerors' submissions, using the source selection method and criteria described in the solicitation. Unless multiple suppliers or firms are needed, such as for a supply schedule, the agency awards a contract to one firm after determining that the company is responsible. The awarding of a contract marks the beginning of the next stage in the acquisition process: contract performance and contract administration. Contract administration, which is the responsibility of agency personnel, helps to assure that the government gets what it paid for in terms of cost, quality, and timeliness and also helps to assure that the government fulfills its obligations vis-a-vis the contractor. The processes, activities, and events that occur during contract administration vary from procurement to procurement, though this stage would include invoice processing and payments to the contractor, and may include, among other functions and activities, a post-award orientation, performance monitoring, and contract modifications. The General Services Administration is perhaps best known, in terms of contracting opportunities and resources, as the agency that maintains numerous supply schedules. A schedule is a list of goods and/or services provided by GSA-selected multiple vendors at varying prices. (Hence, these schedules are known as multiple award schedules (MAS).) Information about schedules, including guidance for how to get on a schedule, and a link to resources, training, and tools (including GSA's Vendor Toolbox), are available at http://www.gsa.gov/portal/category/100635 . The process for getting on a schedule is similar to that for obtaining a government contract: GSA issues a solicitation for particular goods or services, companies submit offers in response, and then GSA evaluates the offers and awards contracts to multiple vendors for the same goods or services. Schedule solicitations are posted on FedBizOpps, and GSA also posts them on its website. The GSA solicitation page may be accessed by going to http://www.gsa.gov/portal/content/207509 . The Minority Business Development Agency, which is part of the Department of Commerce and whose website is available at http://www.mbda.gov , was "created specifically to foster the establishment and growth of minority-owned businesses in America." The agency's network of business development centers provides a variety of management and technical assistance services, and its Phoenix/Opportunity Matching System, a free online system, is designed to match entrepreneurs with federal government and private sector contracting opportunities. Although the Procurement Technical Assistance Program is administered by the Defense Logistics Agency (DLA), it is available to assist companies that market products and services to all federal agencies, and state and local governments. Services are provided through 98 Procurement Technical Assistance Centers (PTACs), which have over 300 local offices. To find PTACs, visit http://www.aptac-us.org/ and use the "Find a PTAC" function. The centers provide assistance through workshops, seminars, and individual counseling sessions. The Small Business Administration offers a variety of services and assistance to current and would-be government contractors. Its website, available at http://www.sba.gov , includes information on, among other topics, small business size standards, contract opportunities, subcontracting, and regulations. SBA also offers, through its online learning center, numerous courses and videos related to government contracting, and links to its district offices, which provide counseling, mentoring, and training. Information about all of these offerings may be found at https://www.sba.gov/tools/sba-learning-center . Other resources that firms may find useful in identifying procurement opportunities, navigating the government's procurement process, and marketing their goods or services include professional, trade, and industry organizations, publications, and events; local chambers of commerce; and consultants. For example, the book Elements of Government Contracting , by Richard D. Lieberman and Karen R. O'Brien, provides information about the federal procurement process. Magazines such as Government Executive and Homeland Defense Journal include articles with information about government procurements and industry workshops or conferences. Industry and trade organizations, such as the Professional Services Council, may be another source of useful information. Part 35 of the FAR provides guidance on research and development (R&D) contracting. Interested companies, organizations, and other entities may use FedBizOpps to identify R&D opportunities, which may be posted as solicitations or broad agency announcements (BAA). The federal government also uses several nontraditional procurement methods to acquire the technologies and products it needs. Recognizing that not all new and innovative ideas may be captured by established procurement programs and procedures, the federal government provides for the submission of unsolicited proposals. That is, a firm may submit a proposal for which there is no solicitation. Guidance and requirements for the preparation and submission of unsolicited proposals, including the criteria for a valid unsolicited proposal, may be found at Subpart 15.6 of the FAR. Some agencies may also provide information on their websites about unsolicited proposals, which the Department of Homeland Security (DHS) does at http://www.dhs.gov/unsolicited-proposals . As the central R&D organization for the Department of Defense, the Defense Advanced Research Projects Agency (DARPA) "was established … to prevent strategic surprise from negatively impacting U.S. national security and create strategic surprise for U.S. adversaries by maintaining the technological superiority of the U.S. military." The DARPA website, available at http://www.darpa.mil/default.aspx , includes links to solicitations and BAAs, and a webpage dedicated to opportunities for small businesses, available at http://www.darpa.mil/Opportunities/SBIR_STTR/ . The Department of Homeland Security (DHS) and the Office of the Director of National Intelligence (ODNI) are two other agencies that have similar agencies. For information about the Homeland Security Advanced Research Projects Agency (HSARPA), see http://www.dhs.gov/science-and-technology/hsarpa ); for the Intelligence Advanced Research Projects Agency (IARPA), see http://www.iarpa.gov/ . Other nontraditional opportunities for firms, research institutions, and organizations are government-sponsored challenges and venture capital funds established by agencies for the purpose of helping to fund technologies they could use. GSA maintains a website, Challenge.gov, where federal agencies may post challenge and prize competitions. Nearly 400 challenges have been conducted by 69 federal agencies since 2010. Two agencies that have established venture capital funds are the Central Intelligence Agency (CIA) and the Department of the Army. Information about the nonprofit corporation that was established to manage the CIA's venture capital fund—In-Q-Tel—is available at http://www.iqt.org/ . Information about OnPoint Technologies, the Army's venture capital fund, is available at http://onpoint.us/ . Another way to become involved in federal government contracting, albeit indirectly, is to serve as a subcontractor for a company (known as the "prime contractor") that has been awarded a government contract. Agencies may provide information on their websites about firms to which they have awarded contracts. For example, GSA maintains a subcontracting directory, available at http://www.gsa.gov/portal/service/SubContractDir/category/102831/hostUri/portal , and DHS provides a list of prime contractors at http://www.dhs.gov/prime-contractors . Other potentially useful sources of information include trade and business publications, FedBizOpps, company websites, and the Federal Procurement Data System (FPDS). Information gleaned from these sources might indicate which companies have received, or expect to receive, government contracts. The SBA provides information regarding subcontracting opportunities at https://www.sba.gov/subcontracting-directory .

In the basic federal procurement process, acquisition personnel, after determining their agency's requirements (that is, the goods and services the agency needs), post a solicitation on the Federal Business Opportunities (FedBizOpps) website. Interested companies prepare their offers in response to the solicitation, and, in accordance with applicable provisions of the Federal Acquisition Regulation (FAR), agency personnel evaluate the offers. Another type of procurement opportunity for a company is to serve as a subcontractor for a government contractor. To be eligible to compete for government contracts, a company must obtain a Data Universal Numbering System (DUNS) number and register with the federal government's System for Award Management (SAM). Several agencies, such as the General Services Administration (GSA), provide assistance and services to existing and potential government contractors. Research and development (R&D) procurement opportunities may involve traditional contracting methods, such as solicitations and contracts, as well as nontraditional methods, which include agency-sponsored contests and venture capital funds.

A "lame duck" session of Congress takes place whenever one Congress meets after its successor is elected but before the term of the current Congress ends. From 1940 to 2016, there were 21 lame duck sessions. The most recent la me duck session, which commenced on November 13, 2018, is not included in the data presented in this report. Of the 21 lame duck sessions examined, seven followed an election that switched the majority party in one or both chambers. That is, the party that controlled the House or Senate during the lame duck session did not retain its majority into the next Congress. Tab l e 1 displays these sessions, occurring in 1948, 1954, 1980, 1994, 2006, 2010, and 2014. Like the 2018 lame duck session, three lame duck sessions (1940 to 2016) followed a majority-changing midterm election during a President's first term of office. In each of these sessions (1954, 1994, 2010), the same party had controlled the White House, House, and Senate prior to the election. This report provides additional information on the 1954, 1994, and 2010 lame duck sessions. Lame duck sessions have been held for a variety of reasons. Their primary purpose is to complete action on legislation. They have also been used to prevent recess appointments and pocket vetoes, to consider motions of censure or impeachment, to keep Congress assembled on a standby basis, or to approve nominations (Senate only). In recent years, most lame duck sessions have focused on program authorizations, trade-related measures, appropriations, and the budget. Critics of lame duck sessions object to recently defeated Members or parties managing and acting on the legislative agenda. Proponents consider these post-election sessions to be useful for lawmaking at the end of a Congress. In the last two decades, lame duck sessions have become a routine occurrence during even-numbered years, regardless of which party is in the majority before the election. Prior to 1933, the last regular session of Congress was always a lame duck session. However, the 20 th Amendment to the Constitution changed the dates of the congressional term from beginning and ending on March 4 of odd-numbered years to January 3 of odd-numbered years. As a result, lame duck sessions are no longer an automatic feature of Congress. Today, lame duck sessions consist of any portion of a regular second session that falls after the November election in an even-numbered year and before the next Congress commences on January 3. Between 1935 and 1998, one or both houses held a lame duck session in 12 of the 32 Congresses (74 th -105 th ). In contrast, both houses held a lame duck session in every Congress from the 106 th through the 114 th (2000-2016). These sessions are now an anticipated—although not guaranteed—biennial event. In Congresses featuring a lame duck session, the preceding election break spanned an average of six to seven weeks and generally began by early to mid-October. During the break, the chambers either were in recess or held a series of pro forma sessions. Lame duck sessions begin once regular, consecutive daily sessions resume after an election break. Typically, sessions have started around the third week of November. Between 1935 and 2016, the average session length was about one calendar month. Within that time frame, the House held an average of 15 daily sessions, and the Senate held an average of 18 daily sessions. The shortest lame duck sessions featured a limited agenda. For instance, in 1998, the House spent three days considering the President Clinton impeachment proceedings. In 1948, the House and Senate met for one day, mainly to wrap up the 80 th Congress, and in 1994, the Members spent the two-day lame duck session considering a tariff and trade agreement. The 1948 and 1994 sessions took place after an election that switched the majority party. However, the other majority-change lame duck sessions were similar in length to the overall average. From 1935 to 2016, seven lame duck sessions followed an election that changed the majority party in one or both chambers of Congress. Two occurred during a presidential election year (1948, 1980), two followed a midterm election during the second term of a President (2006 and 2014), and three followed a midterm election during the first term of a President (1954, 1994, 2010). Tabl e 1 displays lame duck sessions that convened after an election that changed the majority party in either the House or the Senate. The table identifies the number of seats the majority party lost as well as the key measures approved during the post-election periods. In each of the lame duck sessions that followed a midterm election in a President's first term in office, the same party controlled the White House, the House, and the Senate. Below, more information is provided on the 1954 (Republican-controlled), 1994 (Democratic-controlled), and 2010 (Democratic-controlled) lame duck sessions of Congress. For a detailed review of lame duck sessions of Congress (1935-2016), see CRS Report R45154, Lame Duck Sessions of Congress, 1935-2016 (74th-114th Congresses) . In the 1954 midterm election, the Republican Party lost its majorities in both chambers during President Eisenhower's first term in office. After the election, the Senate reconvened solely to consider disciplinary actions against Republican Senator Joseph R. McCarthy. (The House remained adjourned for the remainder of the 83 rd Congress.) On November 9, a select investigative committee reported a resolution of censure, which was subsequently debated and amended on the Senate floor. On December 2, the Senate approved the two-count resolution censuring Senator McCarthy for behavior related to his inquiry into alleged communist influence in the federal government. Two years into President Clinton's presidency, the 1994 midterm gave Republicans control of the House and Senate for the next Congress. On November 29, both houses reconvened in order to consider the General Agreement on Tariffs and Trade. The measure, which had stalled in the Senate prior to the election, received bipartisan support in the lame duck. The House passed the bill on the first day of the session, and the Senate passed it on December 1. In the 2010 election, midway through President Obama's first term in office, congressional Democrats lost their House majority as well as six seats in the Senate. On November 15, both chambers reconvened after the election to consider an extensive legislative agenda. Among the measures adopted, Congress passed the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (NDAA, P.L. 111-383 ), the FDA Food Safety Modernization Act ( P.L. 111-353 ), the Don't Ask, Don't Tell Repeal Act ( H.R. 2965 ), and the James Zadroga 9/11 Health and Compensation Act ( H.R. 847 ). The House and Senate also extended the 2001 and 2003 income tax cuts and adopted a series of continuing resolutions (CRs) to provide government funding through March 4, 2011. In addition, the Senate voted to approve ratification of an arms control treaty with Russia (New START) and confirmed 19 federal judges.

"Lame duck" sessions of Congress take place whenever one Congress meets after its successor is elected but before the term of the current Congress ends. Their primary purpose is to complete action on legislation. They have also been used to prevent recess appointments and pocket vetoes, to consider motions of censure or impeachment, to keep Congress assembled on a standby basis, or to approve nominations (Senate only). In recent years, most lame duck sessions have focused on program authorizations, trade-related measures, appropriations, and the budget. From 1940 to 2016, there were 21 lame duck sessions. Seven followed an election that switched the majority party in one or both chambers. That is, the party that controlled the House or Senate during the lame duck session did not retain its majority into the next Congress. These sessions occurred in 1948, 1954, 1980, 1994, 2006, 2010, and 2014. Three lame duck sessions between 1940 and 2016 followed a majority-changing midterm election during a President's first term of office. In each of these sessions (1954, 1994, 2010), the same party had controlled the White House, House, and Senate prior to the election. This report provides additional information on the 1954, 1994, and 2010 lame duck sessions. The most recent lame duck session, which commenced on November 13, 2018, is not included in the data presented.

The Elementary and Secondary Education Act (ESEA), as amended by the No Child Left Behind Act of 2001 (NCLB, P.L. 107-110 ), requires that all core subject-matter teachers be highly qualified . ESEA Section 9101(23) defines highly qualified as a teacher who has obtained a bachelor's degree, possesses full state certification, and demonstrated subject-matter knowledge. This credentials-based approach has been the cornerstone of federal teacher policy for over a decade and has been criticized for setting a modest bar by using requirements for entry into the profession as a proxy for teacher quality rather than instituting performance goals to which teachers may aspire. A growing body of research has revealed such credentials to be weakly correlated with student achievement and has led some to recast "teacher quality" in terms of student progress. Meanwhile, congressional interest in teacher policy has shifted from a focus on inputs (i.e., quality) to outputs (i.e., effectiveness). Each Congress since the 109 th has expanded the federal role with regard to rewarding teacher effectiveness and providing incentives for the reform of state and local teacher evaluation systems. The 113 th Congress has continued this trend by moving legislation to reauthorize the ESEA and including provisions that support these reforms. Still, considerable disagreement exists among Members of Congress over the extent to which the federal government should mandate, encourage, or be involved in teacher evaluation reform. Teacher evaluation is largely the responsibility of local school administrators working within broad rules set by state law and collective bargaining agreements. These rules generally identify the procedures and circumstances under which a teacher may be dismissed for poor performance and have little to do with conducting teacher evaluation. For example, state laws typically provide that a tenured teacher may not be dismissed without "just cause"—the standard which "has come to require evidence of a teacher's insubordination, incompetence, or immorality." In many states, requirements like these mark the limited role state policymakers have historically played in delineating K-12 teacher evaluation systems. Until recently, only a handful of states had implemented statewide teacher evaluation policies. The National Center on Teacher Quality (NCTQ) has conducted annual reviews of state laws, rules, and regulations that govern the teaching profession since 2007. In that year, NCTQ found that 34 states either had no statewide teacher evaluation policy or provided minimal guidance to school leaders on how evaluations should be conducted. The absence of state-level guidance, combined with the great complexity of measuring job performance and the high cost of dismissing a poor performing teacher, has led to what some have called the "widget effect"—that is, "the tendency of school districts to assume classroom effectiveness is the same from teacher to teacher." This view does not necessarily imply that school leadership shares this assumption, but rather suggests institutional limitations hinder sensitivity to assessing variation in teacher effectiveness. Within these limitations, evaluation systems have evolved in which virtually every teacher receives a "satisfactory" rating. In a case study of 12 districts, 1% of teachers received an "unsatisfactory" rating whether the rating system was binary or involved more than two categories. This finding is supported by data representing schools nationwide. Until recently, federal policy had been silent on the issue of teacher effectiveness (i.e., evaluating their performance in the classroom). Instead, the federal role in K-12 teacher policy has historically been limited to issues of quality and quantity (i.e., workforce qualifications and supply). NCLB's highly qualified teacher requirement was intended to raise quality by limiting the number of teachers with emergency, temporary, or provisional licenses. Prior to NCLB, the largest investment in the federal teacher portfolio was Class Size Reduction—a program designed to limit class size by providing schools with funds to hire more teachers. Additional federal incentives exist, such as the Troops for Teachers and Student Loan Forgiveness programs, for hiring teachers in hard-to-staff schools. The federal government's first foray into teacher effectiveness policy can be traced to enactment of the Teacher Incentive Fund (TIF) in 2006. That year, TIF was appropriated $99 million to award competitive grants to about three dozen school districts to support pay-for-performance incentives for teachers. Although TIF authority did not initially prescribe a teacher evaluation component (as it has since 2009), the underlying premise of the program has always been to reward effective teaching. The TIF program along with the federal role in teacher effectiveness was further expanded through the American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5 ). ARRA's Race to the Top (RTT) authority outlines five major elements of an approved teacher evaluation system. These same five elements (described below) are also required by the Secretary's ESEA waiver package. 1. Teachers must be evaluated annually. 2. Teacher performance must be measured in significant part on growth in student achievement. 3. Evaluation procedures must include several classroom observations. 4. Systems of evaluation must differentiate teachers among multiple categories of effectiveness (as opposed to a binary satisfactory/unsatisfactory rating). 5. The results of teacher evaluations must inform important school staffing decisions (e.g., promotion and dismissal). According to NCTQ, between 2009 and 2012, a "sea change" occurred in state teacher evaluation reform with 36 states making changes to their policies. Table 1 displays the major reforms that took place during this time. In 2009, 14 states required that all teachers be evaluated annually and by 2012 the number had risen to 23 states. In 2009, 15 states required that student achievement be factored into teacher performance and 30 states required classroom observation be included in teacher evaluation compared to 30 and 39 states, respectively, in 2012. When NCTQ first began collecting information on performance levels in 2011, 17 states required that evaluation systems differentiate teachers on multiple performance ratings (i.e., more than two); this number grew to 25 states in a single year. Finally, in 2009, no state required that teacher evaluation results be used to make tenure decisions; whereas in 2012, nine states had adopted this policy. Both the 112 th and 113 th Congresses acted on bills to reauthorize the ESEA that included teacher evaluation provisions. During the 112 th Congress, the House Committee on Education and Workforce reported the Encouraging Innovation and Effective Teachers Act ( H.R. 3990 ), which would have required school districts to develop and implement teacher evaluation systems that met guidelines similar to the five requirements in current federal policy (discussed above). Meanwhile the Senate Committee on Health, Education, Labor, and Pensions reported the Elementary and Secondary Education Reauthorization Act ( S. 3578 ), which would have made similar teacher evaluation reforms optional. Neither of these bills received floor debate. In the 113 th Congress, both committees again reported ESEA reauthorization bills containing provisions on teacher evaluation. This time, the House bill ( H.R. 5 , the Student Success Act) would make teacher evaluation reforms optional and the Senate bill ( S. 1094 , the Strengthening America's Schools Act) would make teacher evaluation reforms mandatory. These reforms may (in the case of H.R. 5 ) or must (in the case of S. 1094 ) meet guidelines similar to the five requirements for teacher evaluation in current federal policy (discussed above). On July 19, 2013, the House passed H.R. 5 and referred the measure to the Senate. S. 1094 has not received floor debate. Although there is general congressional interest in teacher evaluation reform, strong disagreement exists over whether these changes should be mandated or simply supported by the federal government. Moreover, some argue that no federal role is appropriate in this matter. Among those who think there is some appropriate federal role, there remain several areas of dispute. Some of these issues are discussed here. How much weight should student learning have in teacher evaluation? The Teacher Incentive Fund, Race to the Top, and the ESEA waiver package all require that teacher evaluations be based "in significant part" on evidence of improved student academic achievement and growth (both S. 1094 and H.R. 5 also use this phrase). Although states and school districts have flexibility around how to incorporate student learning, some serious implementation challenges likely exist—particularly regarding measurement in non-tested grades and subjects. It is unclear whether these challenges are best addressed by "letting a thousand flowers bloom" at the local level or through guidance and/or support at a federal or national level. Which staffing decisions should be tied to teacher evaluation outcomes? Recently, a handful of states have newly required that teachers demonstrate positive performance in order to receive and retain tenure. States and school districts have also instituted performance pay, with and without TIF support. Some assert that evaluation reforms are too nascent for such high-stakes decisions and argue that evaluation results are better suited to provide feedback to teachers and inform professional development. Others argue that basing such high-stakes decisions on teacher performance can be a needed catalyst for wider systemic reform. Should evaluation reform include school leadership? In some ways, current school-level accountability provisions have laid the groundwork for principal evaluation reform. Turnaround models for low-achieving schools included in the ESEA waiver package may involve removing poorly performing principals. As the individual who may be most responsible for school-wide success, principal performance may be synonymous with school performance. Moreover, so-called value-added models , which face large implementation barriers and methodological challenges with regard to individual teacher performance, may be better suited when applied to school-wide (or principal) performance. Should federal funds be provided to support the development of evaluation systems and evaluator training? Several educational organizations have been contracting with states and school districts in this capacity for some time. Federal endorsement of such partnerships might be an efficient and effective way to promote reform. What, if any, role should teacher evaluation systems play in the accountability of teacher preparation programs? Some argue that the success of these programs should be judged on the extent to which their graduates contribute to student academic achievement. As evaluation reform may build data linkages between student learning and teacher performance, in turn teacher evaluation could be linked to preparation program performance. On the other hand, building such data systems across numerous school systems and educational levels may not be simple or inexpensive and possibly may not be feasible. Should current federal requirements for the equitable distribution of teacher quality include an effectiveness component? NCLB requires that states "ensure that poor and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers." If credential-based teacher quality measures are replaced with performance-based measures, perhaps equity provisions should be amended similarly.

Teacher evaluation has historically been largely the responsibility of local school administrators working within broad rules set by state law and collective bargaining agreements. These rules generally identify the procedures and circumstances under which a teacher may be dismissed for poor performance and have little to do with conducting teacher evaluation. Until recently, only a handful of states had implemented statewide teacher evaluation policies and federal policy had been silent on the issue of evaluating teacher effectiveness. In 2006, Congress authorized the Teacher Incentive Fund to support pay-for-performance programs that provide incentive pay to effective teachers. Regulatory guidance for this program (which was later enacted in statute) marked the federal government's first foray into teacher evaluation policy. The federal role in this area was further expanded through passage of the Race to the Top program in 2009, which required states to implement specific education reforms such as including student achievement in teacher evaluation systems. This action brought about a "sea change" in state-level policymaking. For example, between 2009 and 2012, the number of states requiring that student achievement be factored into teacher evaluation doubled from 15 to 30. Congressional interest in teacher evaluation policy has continued through efforts to reauthorize the Elementary and Secondary Education Act (ESEA), last authorized by the No Child Left Behind Act of 2001 (P.L. 107-110). In the 113th Congress, committees of jurisdiction in both chambers reported ESEA reauthorization bills containing provisions on teacher evaluation. The House bill (H.R. 5, the Student Success Act) would make teacher evaluation reforms optional, and the Senate bill (S. 1094, the Strengthening America's Schools Act) would make teacher evaluation reforms mandatory. These reforms may (in the case of H.R. 5) or must (in the case of S. 1094) meet guidelines similar to the requirements for teacher evaluation in current federal policy. On July 19, 2013, the House passed H.R. 5 and referred the measure to the Senate. S. 1094 has not received floor debate. Although there is general congressional interest in teacher evaluation reform, strong disagreement exists over whether these changes should be mandated or simply supported by the federal government. Moreover, some argue that no federal role is appropriate in this matter. Among those who think there is some appropriate federal role, there remain several areas of dispute, including the following: How much weight should student learning have in teacher evaluation? Which staffing decisions should be tied to teacher evaluation outcomes? Should evaluation reform include school leadership? Should federal funds be provided to support the development of evaluation systems and evaluator training? What role, if any, should teacher evaluation systems play in the accountability of teacher preparation programs? Should current federal requirements for the equitable distribution of teacher quality include an effectiveness component?

On November 4, 2002, United States Trade Representative (USTR) Robert B. Zoellick notified Congress of the Administration's intention to launch negotiations for a free trade agreement (FTA) with the Southern African Customs Union (SACU), comprised of Botswana, Namibia, Lesotho, South Africa, and Swaziland. This agreement would be the first U.S. FTA with a Sub-Saharan African country. The first round of negotiations for the SACU FTA began on June 3, 2003, in Johannesburg, South Africa. The negotiations were initially scheduled to conclude by December 2004, but the deadline was pushed to the end of 2006 after negotiations stalled in late 2004 and resumed in late 2005. The talks continued to move at a slow pace until April 2006, when U.S. and SACU officials decided to suspend negotiations and instead begin a longer term joint work program. On July 16, 2008, USTR Susan Schwab signed a Trade, Investment and Development Cooperation Agreement (TIDCA) with trade ministers from SACU. Several possible rationales exist for the negotiation of an FTA with SACU. One impetus derives from Sec. 116 of the African Growth and Opportunity Act (AGOA) (Title I, P.L. 106 - 200 ), in which Congress declared its sense that FTAs should be negotiated with sub-Saharan African countries to serve as a catalyst for trade and for U.S. private sector investment in the region. Such trade and investment could fuel economic growth in Southern Africa, by creating new jobs and wealth. SACU member countries have achieved the most robust export growth under AGOA, and an FTA may expand their access to the U.S. market. An FTA may also encourage the continued economic liberalization of the SACU members, and it could move SACU beyond one-way preferential access to full trade partnership with the United States. Finally, although SACU is a customs union, its members' investment and regulatory regimes are not fully harmonized. A comprehensive FTA with the United States could force SACU to achieve greater harmonization. A potential U.S.-SACU FTA is of interest to Congress because: (1) Congress will need to consider ratifying any agreement signed by the parties; (2) provisions of an FTA may adversely affect U.S. business in import-competing industries, and may affect employment in those industries; and (3) an FTA may increase the effectiveness of AGOA and bolster its implementation. On January 9, 2003, a bipartisan group of 41 Representatives wrote to Ambassador Zoellick to support the beginning of FTA negotiations with SACU. The U.S. business community has also shown interest in a U.S.-SACU FTA. The U.S.-South African Business Council, an affiliate of the National Foreign Trade Council, announced the creation of an FTA advocacy coalition in December 2002. The Corporate Council on Africa, a U.S. organization dedicated to enhancing trade and investment ties with Africa, also supports the negotiations. For these business groups, a primary benefit of an FTA with SACU would be to counteract the free trade agreement between the European Union and South Africa, which has given a price advantage to European firms. The FTA could also provide an opportunity to address the constraints on U.S. exports to SACU countries, such as relatively high tariffs, import restrictions, insufficient copyright protection, and service sector barriers. Some U.S. businesses have reportedly expressed skepticism about an FTA with SACU, citing concerns over corruption and inadequate transparency in government procurement, particularly in South Africa. On December 16, 2002, the interagency Trade Policy Staff Committee, which is chaired by the USTR, held a hearing to receive public comment on negotiating positions for the proposed agreement. Several groups representing retailers, food distributors, and metal importers supported the reduction of U.S. tariffs on SACU goods that an FTA would bring. Others representing service industries and recycled clothing favored negotiations to remove tariff and non-tariff barriers in the SACU market. Yet other groups opposed the additional opening of U.S. markets to SACU goods or sought exemptions for their products. They included the growers and processors of California peaches and apricots, the American Sugar Alliance, rubber footwear manufacturers, and producers of silicon metal and manganese aluminum bricks. Some U.S. civil society organizations are concerned that a SACU FTA could have negative consequences for poor Southern Africans, citing potential adjustment costs for import-competing farmers, poor enforcement of labor rights, privatization of utilities, and increased restrictions on importing generic drugs to treat HIV/AIDS. The South African Customs Union consists of Botswana, Lesotho, Namibia, South Africa, and Swaziland: five contiguous states with a population of 51.9 million people encompassing 1.7 million square miles on the southern tip of the African continent. Although this figure represents less than 1% of the population of sub-Saharan Africa, SACU accounts for one-half of the subcontinent's gross domestic product (GDP). Wide differences exist among the economies of SACU. While South Africa has developed a significant manufacturing and industrial capacity, the other countries remain dependent on agriculture and mineral extraction. The grouping is dominated by South Africa, which accounts for 87% of the population, and 93% of the GDP of the customs area. SACU member states had combined real GDP of about $158 billion in 2005. SACU is the United States' second largest trading partner in Africa behind Nigeria whose exports are almost exclusively petroleum products. Overall, SACU is the 33 rd largest trading partner of the United States. Merchandise imports from SACU totaled $10.0 billion in 2007, a 33% increase from 2005 and a 169% increase from 1997. They were composed of minerals such as platinum and diamonds, apparel, vehicles, and automotive parts. Major U.S. exports to the region include aircraft, automobiles, computers, medical instruments and construction and agricultural equipment. The 2007 merchandise trade deficit with SACU was $4.4 billion. The United States ran a services trade surplus with South Africa (the only member of SACU for which service data are available) with exports of $1.6 billion and imports of $1.1 billion in 2006. Services trade between the United States and South Africa has increased steadily over the last decade, with both imports and exports doubling since 1996. The stock of U.S. foreign direct investment in South Africa totaled $3.8 billion in 2006 and was centered around manufacturing, chemicals and services. The stock of South African investment in the U.S. stood at $652 million in 2006. FTA negotiations with SACU may result in the first U.S. trade agreement with an existing customs union. SACU is the world's oldest customs union; it originated as a customs agreement between the territories of South Africa in 1889. The arrangement was formalized through the Customs Agreement of 1910 and was renegotiated in 1969. In 1994, the member states agreed to renegotiate the treaty in light of the political and economic changes implicit from the end of the apartheid regime. The renegotiated agreement was signed on October 21, 2002 in Gaborone, Botswana, and it is now being implemented. Some observers are concerned that further integration of the customs union may be threatened by individual member countries signing economic partnership agreements (EPAs) with the European Union (EU), because these agreements would include policies that SACU has yet to harmonize, such as rules of origin and customs procedures. Some observers believe that SACU should only negotiate these policies as a group to avoid roadblocks to harmonization. The 2002 Agreement provides for greater institutional equality of the member states and effectively redistributes tariff revenue within the member states. Its three key policy provisions are: the free movement of goods within SACU; a common external tariff; and a common revenue pool. It also provides more institutional clout to Botswana, Lesotho, Namibia, and Swaziland (BLNS) in decision-making by creating a policymaking Council of Ministers. The agreement enhances the existing Customs Union Commission, and it creates a permanent Secretariat based in Windhoek, Namibia. The Agreement renegotiated the formula for disbursement of the common revenue pool, which accounts for a large portion of government revenue in the BLNS countries. BLNS disbursements were specified under the old formula, but under the new formula they are variable and based on shares of intra-SACU trade. Both formulas result in a redistribution of SACU tariff revenues from South Africa to BLNS, but the new formula has its basis in some measure of economic activity. Recent estimates indicate SACU payments accounted for 49% of government revenue in Lesotho, 69% in Swaziland, 25% in Namibia, 12% in Botswana, and 3% in South Africa in 2005. A 2003 WTO Trade Policy Review of SACU member states examined the tariff structure and trade posture of the customs union. It noted that the South African tariff structure, which was still the basis for the SACU tariff, was relatively complex, consisting of specific, ad valorem , mixed compound and formula duties. However, the South African government has embarked on a tariff rationalization process to simplify the tariff schedule, to convert tariff lines to ad valorem rates, and to remove tariffs on items not produced in the SACU. According to the USTR, the complexity of the tariff regime has made it necessary for some U.S. firms to employ facilitators to export to South Africa. The WTO found applied MFN tariffs averaged 11.8% in manufacturing, 5.5% in agriculture, and 0.7% in mining and quarrying. These average tariffs represent a reduction from the previous WTO review in 1998, when MFN tariffs averaged 16%, 5.6%, and 1.4%, respectively. However, tariffs are often bound much higher, with some bindings as high as 400%. After nearly three years of slow-moving and stalled negotiations, U.S. and SACU trade officials called off the FTA negotiations in April 2006 in favor of a longer term trade and investment work plan. On July 16, 2008, they signed a Trade, Investment and Development Cooperation Agreement (TIDCA), which is the first of its kind. The TIDCA is reportedly a formal mechanism for the United States and SACU to negotiate interim trade-related agreements which may serve as the building blocks for a future FTA. The agreement will also allow the two parties to work on key issues in their trade, such as trade facilitation, technical barriers, investment promotion, and sanitary and phytosanitary standards. Observers have cited several possible reasons for the halt in FTA negotiations. First, the United States and SACU did not agree on the scope of the negotiations. Per their mandate from Congress to pursue comprehensive FTAs, U.S. negotiators attempted to proceed with negotiations including intellectual property rights, government procurement, investment, and services provisions. However, SACU officials reportedly argued for these provisions to be excluded from the negotiations. They called for making market access commitments first, and then negotiating the other areas. Now that Congress has extended the AGOA benefits to 2015 through the AGOA Acceleration Act of 2004 ( P.L. 108 - 274 ), there may be less incentive for SACU countries to complete an FTA with the United States. Also, the United States and SACU reportedly held different views on how to include certain industrial sectors in the negotiations. The United States preferred what is called a negative list, where all industries are negotiable unless specifically excluded. Meanwhile, SACU preferred a positive list, where the industries to be included in the negotiations are specified in advance, and additional industries may be included in the agreement over time. Finally, the United States and SACU differed on issues concerning labor rights and environmental regulations. Some observers have speculated that South Africa may be leery of negotiating issues that are included in the current WTO negotiations, so as not to influence their positions in the WTO. Former USTR Robert Zoellick has stated that the United States recognizes that SACU is still an emerging entity. It has not developed harmonized policies on many of the issues that would be included in an FTA, which may add to the challenges of negotiating an FTA.

Negotiations to launch a free trade agreement (FTA) between the United States and the five members of the Southern African Customs Union (SACU) (Botswana, Lesotho, Namibia, South Africa, and Swaziland) began on June 3, 2003. In April 2006, negotiators suspended FTA negotiations, launching a new work program on intensifying the trade and investment relationship with an FTA as a long term goal. A potential FTA would eliminate tariffs over time, reduce or eliminate non-tariff barriers, liberalize service trade, protect intellectual property rights, and provide technical assistance to help SACU nations achieve the goals of the agreement. This potential agreement would be subject to congressional approval. This report will be updated as negotiations progress.

The Food and Drug Administration (FDA) regulates the safety of foods (including animal feeds) and cosmetics, and the safety and effectiveness of drugs, biologics (e.g., vaccines), and medical devices. The Agriculture, Rural Development, Food and Drug Administration, and Related Agencies appropriations bill provides FDA's annual funding. The total amount that FDA can spend, its program level, consists of direct appropriations (which FDA calls budget authority) and other funds, most of them user fees. An appropriations bill specifies both the budget authority and user fee amounts each year. It also dictates the total for each of FDA's major program areas (Foods, Human Drugs, Biologics, Devices, Animal Drugs and Feeds, and Toxicological Research ) and several agency-wide support areas (Office of the Commissioner and other headquarter offices, rents to the General Services Administration, and other rent and rent-related activities). It also authorizes collections and spending from several specific other funds (relating to mammography quality standards, and color and export certification). Traditionally, the appropriations committees have used report language to recommend, urge, or request specific activities within major programs. The standard appropriations procedure involves congressional passage of 12 annual regular appropriations acts, of which agriculture (including FDA) is one. Except that final passage occurred after the start of the fiscal year, the FY2010 agriculture appropriations followed the standard process. Table 1 provides a timeline of the administrative and congressional steps toward FY2010 appropriations for FDA. For 7 of the previous 11 fiscal years, Congress had not completed that standard process and had passed omnibus or consolidated appropriations legislation, as shown in Table 2 . For FY2009, Congress acted in the final days of FY2008 to provide appropriations for the start of FY2009 as part of the larger Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 ( P.L. 110-329 , signed on September 30, 2008). In March 2009, Congress passed an omnibus appropriations bill that included FDA ( P.L. 111-8 ). In February of each year (except for when a new President has taken office the month before), the President presents a budget request to Congress. The annual Food and Drug Administration Justification of Estimates for Appropriations Committees contains program-level details of the President's request, while also highlighting successes, needs, and special initiatives (e.g., drug safety, imports, bioterror countermeasures, inspections). Because the topics selected for discussion vary over the years, analysts cannot use this information to track exact changes over time. The program-level detail, however, provides a window into the priorities and activities of the agency. The FY2010 request—$3.178 billion—is 19% higher than FY2009-enacted appropriations. It includes increased funding for food and medical product safety activities and cost-of-living expenses. Data column 4 of Table 3 displays the President's FY2010 request by major program area. This follows columns for FY2008-enacted appropriations, FY2008 actual appropriations (as of April 2009), and FY2009-enacted appropriations. The appropriations committees in the House and the Senate each have subcommittees that parallel the 12 annual appropriations bills. The subcommittees on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies consider FDA appropriations. The textbook order of activity is as follows: In each chamber, the subcommittee considers the issues, perhaps holds hearings, and marks up a bill for the full committee's consideration. In each chamber, the full committee considers the subcommittee-marked bill or a version that the full committee chair presents, and reports a bill, perhaps with committee amendments, to the full House or the full Senate for consideration. The full House considers the House Committee on Appropriations-reported bill, perhaps amending it on the floor, and passes the bill; the full Senate considers the Senate Committee on Appropriations-reported bill, perhaps amending it on the floor, and passes the bill. If the House-passed and Senate-passed bills are not identical, each chamber assigns Members to meet in conference to work out one acceptable bill. Each chamber must vote to approve the conference bill; the second chamber that passes the conference bill sends it to the President for signing. On June 23, 2009, the full Committee on Appropriations reported H.R. 2997 , which the Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies had marked up on June 11, 2009. The bill matched the President's request but did not include the proposed new user fees. Data column 5 of Table 3 shows the committee-reported amounts. As it had in previous years, the committee included in the bill a provision to preclude FDA's closing or relocating its Division of Pharmaceutical Analysis outside the St. Louis, MO, area. In H.Rept. 111-181 , which accompanied H.R. 2997 , the committee highlighted the increased support for food and medical product safety that would cover, for example, more foreign and domestic inspections. The committee also noted that the increase would fund research in biomarkers; collection and analysis of data on foodborne illnesses; research on screening tests for bloodborne diseases; efforts to understand adverse events related to medical devices used in pediatric hospitals; evaluations of drug Risk Evaluation and Mitigation Strategies; and investment in information technology. The report also noted funding for congressionally directed spending items. In its report, the committee stated its intention to authorize FDA to collect and spend tobacco product user fee revenue once the tobacco legislation was signed into law. The committee also encouraged FDA to prioritize its review of products that would address neuroblastoma; to issue a final rule on over-the-counter sunscreen testing and labeling; to devise targeted communications strategies to allow consumers to use the findings of the upcoming Dietary Guidelines Advisory Committee report; and to remind honey manufacturers about the law's misbranding and adulteration provisions and to respond to a pending citizen petition proposing a standard of identity for honey. The House-passed bill included an anticipated amendment to allow the collection and spending of newly authorized tobacco product user fees. It would allocate most of the $235 million to a new Center for Tobacco Products and related field activities of the Office of Regulatory Affairs, reserving a small part for rent and rent related activities, GSA rent, and other activities, including the Office of the Commissioner. Data column 7 of Table 3 shows the House-passed amounts. On July 7, 2009, the Committee on Appropriations reported S. 1406 , although the subcommittee had not voted on and referred a bill. The budget authority and user fee amounts matched both the House committee-reported and the President's request amounts; it also included the St. Louis, MO, provision. Data column 6 of Table 3 shows the committee-reported amounts. The accompanying report, S.Rept. 111-39 , highlighted the increase related to food and medical product safety, which would allow additional inspections. The Senate committee also mentioned laboratory capacity; screening test development; adverse event data collection and analysis; research on bioequivalence standards of generic products; enforcement against fraudulent products; noninvasive techniques to better understand the risks of anesthetic use in children; and information technology systems. The committee specifically encouraged FDA to develop a program for increasing the inspection of imported shrimp for banned antibiotics; to issue guidance regarding antibiotic development and to work with others to promote development and appropriate use of antibacterial drugs for humans; and to continue its activities regarding antimicrobial resistance. The committee recommended a $2 million increase (approximately a 25% increase) to the cosmetics program. It directed the agency to use $18 million for its critical path initiative, with one-third going to partnerships, and to use at least $2 million of the critical path partnership funding to support research in treatment or rapid diagnosis of tropical diseases. The committee directed FDA to report quarterly on critical path spending. The committee also directed the agency to clarify the relationship of dietary supplements to a definition of food; recommended $3 million for demonstration grants for improving pediatric device availability; directed FDA to report on planned research involving bioequivalent anti-epileptic drugs; recommended $93 million for the generic drugs program, increasing the Office of Generic Drugs by $10 million; directed the Department of Health and Human Services (HHS) and FDA to resolve problems with the Rockville Human Resources Center and to report to the Committee; directed FDA to submit a report regarding infant formula products introduced in the past decade; recommended that $5 million in appropriated funds, as well as the $19 million in user fees, be used for Mammography Quality Standards Act activities; urged FDA to stimulate the development of products that could address orphan tropical diseases; and recommended $6 million for the Office of Women's Health. It also directed FDA to consider the need for regulations on the safe handling and processing of packaged ice; to continue priority attention to products for neuroblastoma; to work with states to more aggressively combat fraud in the seafood industry; to respond to a proposed standard of identity to prevent the misbranding and adulteration of honey. The committee instructed FDA to report quarterly on its use of appropriated funds in its implementation of the new tobacco program, and noted its intention to authorize the collection and use of fees. The Senate-passed bill included an anticipated amendment to allow the collection and spending of newly authorized tobacco product user fees. It also authorized the FDA commissioner to conduct and report on a study regarding addiction to certain types of food and addiction to classic drugs of abuse. Data column 8 of Table 3 shows the Senate-passed amounts. Another amendment authorized the commissioner to establish two review groups to recommend activities regarding products to prevent, diagnose, and treat rare diseases and neglected diseases of the developing world, and directed the commissioner to report to Congress on those recommendations and to develop review standards based on those recommendations. The Senate-passed bill also directed the commissioner to report (with the administrator of the National Oceanic and Atmospheric Administration) to Congress on the technical challenges associated with inspecting imported seafood, and to study the labeling of FDA-regulated personal care products for which organic content claims are made. A conference committee, with members appointed by each chamber, submitted a conference report, H.Rept. 111-279 , on September 30, 2009, concerning H.R. 2997 , the agriculture appropriations bill for FY2010. Table 3 displays the FDA-relevant amounts in data column 9. The conference agreement would provide FDA with a total program level of $3.279 billion. The two components of the total are $2.357 in direct appropriations (budget authority) and $922 million in user fees. The total, which includes $235 million in newly authorized user fees to support a new Center for Tobacco Products (and related activities of the agency-wide Office of Regulatory Affairs), would be 22.9% higher than FY2009 appropriations for FDA. Excluding the new tobacco program, to provide a comparison of similar program responsibilities, FY2010 appropriations would be 14.1% higher than FY2009 appropriations. The conference agreement would increase the budget authority to the human drugs program by $7 million and specifies that at least $52 million be made available to the Office of Generic Drugs. It also specifies $4 million for a grant to the National Center for Natural Products Research. Accepting a provision in the Senate and House bills, the conference agreement would prohibit the use of appropriated funds to close or relocate the FDA Division of Pharmaceutical Analysis in St. Louis, MO. The conference agreement includes a provision, based on one in the Senate-passed bill, to require the FDA commissioner to establish two review groups to recommend activities regarding products to prevent, diagnose, and treat rare diseases and neglected diseases of the developing world, and directed the commissioner to report to Congress on those recommendations and to develop guidance and internal review standards based on those recommendations. The Explanatory Statement, the part of the conference report with a narrative approach similar to the committee reports that accompany the bills in each chamber, included a few of the items from the Senate report. The conference agreement states that at least $93 million is for the generic drugs program, of which $52 million is for the Office of Generic Drugs, noting that this is a $10 million increase from FY2009. Also included is a $2 million increase for cosmetics activities, $3 million for demonstration grants for improving pediatric device availability, $18 million for the critical path initiative, and $6 million for four congressionally directed projects. The conference agreement requests FDA to report on adverse events and seizures associated with brand and generic anti-epileptic drugs, specifically the pharmacokinetic profiles of drugs that FDA rates as therapeutically equivalent, and to recommend changes to current bioequivalence testing. The conference agreement directs FDA to report on safety challenges associated with imported seafood. It also directs FDA to report regarding personal care products for which organic content claims are made, to include recommendations on the need for labeling standards and premarket approval of labeling. The House agreed to the conference report on October 7, 2009 (vote: 263-162). The Senate agreed to conference report on October 8, 2009 (vote: 76-22). The FDA title of the agriculture appropriations bill as signed by the President on October 21, 2009, provides the agency with the budget authority and the authorized user fees that the President had requested, plus user fees that Congress enacted after the Administration had submitted its request. The conference agreement increased the budget authority by $7 million. The enacted appropriations provide FDA with a FY2010 total program level of $3.3 billion ($2.4 billion in budget authority and $922 million in user fees). This total does not include an additional $141 million in user fees that the Administration has proposed and included in its request (concerning generic drugs, food export certification, reinspection, and food inspection and facility registration).

On October 21, 2009, the President signed into law, as P.L. 111-80, an Act making appropriations for Agriculture, Rural Development, Food and Drug Administration, and Related Agencies programs for the fiscal year ending September 30, 2010, and for other purposes. This followed House and Senate agreement to the conference report. The law provides the Food and Drug Administration (FDA) with a program level of $3.28 billion for FY2010, dividing that total authorized spending into $2.36 billion in direct appropriations (which FDA refers to as budget authority) and $922 million in user fees. The total, which includes $235 million in newly authorized user fees to support a new Center for Tobacco Products (and related activities of the agency-wide Office of Regulatory Affairs), is 22.9% higher than FY2009 appropriations for FDA. Excluding the new tobacco program, to provide a comparison of similar program responsibilities, FY2010 appropriations are 14.1% higher than FY2009 appropriations. Congress intends the increase to go toward enhanced food safety and medical product safety activities as well as cost-of-living personnel expenses. Neither the signed legislation nor any of the House- and Senate-considered bills include $141 million in proposed user fees that the Administration included in its request. The proposed fees were intended for generic drug review, food export certification, reinspection, and food inspection and facility registration. The versions of H.R. 2997 passed by the House and the Senate agreed on the appropriations to FDA. The conference agreement increased the appropriation to the human drugs program by $7 million. In its explanatory statement, the conference report includes directions and requests to FDA for studies and reports.

DOD provides information to the public about its animal use projects through two main sources—an annual report to the Congress and the BRD. The annual report to the Congress provides information in a summary form on animal use activities, including numbers and types of animals used, general purposes for which animals were used, and DOD’s animal care and use oversight procedures. DOD provided its first annual report in 1994 in response to the direction of the House Armed Services Committee, as contained in its Committee Report on the National Defense Authorization Act for the Fiscal Year 1993. In House Report 103-499, however, the House Armed Services Committee noted that DOD’s annual report had not provided sufficient detail about its animal research programs and activities. The House Report directed DOD to “develop a mechanism for providing the Congress and interested constituents with timely information . . . about its animal use programs, projects, and activities, both intramural and extramural.” One mechanism, according to the House Report, would be a database with information about the research goal and justification, cost, procedures, kinds and numbers of animals used, and information about the pain to which these animals are subjected. In response to that report, in October 1995 DOD established the BRD, a database about individual projects using animals that is accessible by the public through the Internet. For each ongoing DOD animal use project, it provides a project summary that includes the funding amount, the location of the research, and a brief statement of the project’s research objectives and methods. Research projects cover a broad range of topics such as using animals in the development of vaccines to protect against biological warfare agents and technologies to improve treatment methods for combat casualty care. Information for the BRD is collected from DOD agencies and military commands, organizations, and activities involved in the performance and funding of animal care and use programs. Typically the researcher or the veterinary services department at each facility provides the information about each research project for the BRD and the annual report. This is information that facilities routinely maintain as part of the process of granting researchers the approval to conduct research and then subsequently ordering animals for the research project. The BRD includes research funded by DOD as well as research performed by DOD that is funded by external sources such as the National Institutes of Health and the Alzheimer Association. The BRD, which is updated annually, contained 805 project summaries for fiscal year 1996. It was updated to reflect fiscal year 1997 projects on October 1, 1998, one year after the fiscal year ended; project summaries for fiscal year 1996 were replaced by those for fiscal year 1997. DOD has made progress in making information available to the public on its animal research programs and activities. Prior to the creation of the BRD, information on animal research was contained as part of a larger Defense Technology Information Center (DTIC) database, which includes the broad range of DOD research and development projects. However, DOD did not require all of its animal research activities, such as those involving clinical training or investigations, to be reported to the DTIC database. DOD now requires all animal research projects to be reported separately in the BRD. In addition, the BRD is publicly available on the Internet, while the DTIC database has restricted public access. The fiscal year 1996 BRD had a number of problems, including inaccurate and incomplete disclosure of information about DOD’s animal use projects. These problems stem from DOD not collecting certain valuable information from animal use facilities and not reporting certain other information that it did collect. Other problems of inaccuracy or inconsistency in the database were due to flawed data reported to DOD by facilities. The BRD is inaccurate with respect to the number of animal use projects. For example, in the course of performing our work, we found seven projects or research protocols that were not included in the database. These projects were performed at three different DOD organizations: the Armed Forces Radiobiology Research Institute, the Army’s Landstuhl Regional Medical Center, and the Marine Corp’s Camp Lejeune Field Medical Service School. The animals used included goats, sheep, rodents, and nonhuman primates. Alternatively, we identified 19 projects in the fiscal year 1996 BRD related to medical research for biological defense that did not involve the use of animals that year (although they did involve animals in other years). In addition, we identified one project that was reported twice in the database—two different DOD organizations reported the same project. Cost information provided in the BRD is not always accurate and consistent. For example, the fiscal year 1996 funding amount provided in the BRD for some projects covered a longer period than just fiscal year 1996. In other cases, the amounts of funding shown was inconsistent because the funding for some projects was listed as an abbreviated notation of a larger amount without providing adequate explanation. For example, in the case of the project erroneously reported twice, one project summary showed funding as “28,” while the other showed the amount as “28000.” These discrepancies make it difficult, if not impossible, to accurately determine from the BRD the cost of these animal research projects for the fiscal year. Additionally, the BRD does not disclose the funding source for the projects, making it impossible to determine which projects were funded by DOD and which by external sources. Furthermore, the BRD does not contain certain information identified in House Report 103-499. For instance, it does not provide the numbers and species of animals used for DOD projects nor does it include information about the pain to which animals were subjected. Summary information is provided for numbers and types of animals used and pain categories in DOD’s annual reports to the Congress, but these reports lack information on individual programs and activities. Another type of information that was mentioned in the House report is generally absent in BRD project summaries. Few project summaries identify the military or nonmilitary justification of the project. Although some of the projects are directly tied to a military goal, such as developing more effective transfusion fluids for combat casualties, others are not tied to a military goal but are still being done under a specific congressional directive, such as DOD’s extensive breast cancer research program. Without this information the Congress and the public cannot identify projects by the type of requirement they support. DOD does not collect information on the justification of each project as part of its data collection for the BRD. The version of the BRD available to the public also does not contain a data field that describes the broader animal use categories listed in DOD’s annual report to the Congress on animal care and use. Examples of these categories are research on infectious diseases, research relating to combat casualty care, and training for medical personnel. The absence of this information prevents the public from identifying how individual research projects link together into these broader research areas. We also found variations in the levels of specificity reported on the projects in the BRD. Whereas most of the 805 project summaries represent an individual line of research, several summaries report broad groups of research projects. For example, the Uniformed Services University of Health Sciences placed 64 separate project summaries in the BRD reflecting detailed distinctions among its various clinical research activities, such as “Virulence Mechanisms of Salmonella Typhi.” In contrast, Fitzsimons Army Medical Center reports only two clinical research project summaries that are described broadly as “Animal-Facilitated Clinical Medicine Studies in Support of Graduate Medical Education” and “Animal-Facilitated Clinical Surgical Studies in Support of Graduate Medical Education.” These two summaries merged as many as 29 separate projects. DOD guidance to the animal use facilities on preparing project summaries allows facilities broad discretion in determining what constitutes a project. We identified one classified project in the BRD that involved research on animals for the development of a weapon system. While we found no problem with the information reported in the BRD for this project, it appears inconsistent with DOD’s fiscal year 1996 annual animal care and use report to the Congress, which stated that no animals had been used for offensive weapons testing during fiscal year 1996. We recommend that the Secretary of Defense continue to take steps to improve the BRD. Specifically, the Secretary should improve the data collection and reporting procedures to ensure that the BRD contains accurate, detailed information about individual animal research projects, including information on the number and species of animals used in each project, the research goal and justification, and the pain categories for each project as identified in House Report 103-499. In addition, to improve public accountability, we recommend that the Secretary provide other information in the BRD, such as the appropriate animal use categories for each project, consistent with information reported in the DOD’s annual reports to the Congress, and ensure that the information contained in the BRD be presented in a uniform manner for all projects. In written comments on a draft of this report (see app. I), DOD partially concurred with our first recommendation and concurred with our second recommendation. Specifically, DOD said it will provide additional training to on-site veterinarians who are responsible for submitting data, take steps to clarify funding information for individual project summaries, include animal use categories for each project summary, and require reporting of all projects that have any animal use. They stated that they will institute these changes prior to the fiscal year 1999 annual report. DOD, however, expressed a concern that our recommendation to provide further detail on the number and species of animals, the research goals and justifications, and pain categories for each project summary would require an extensive upgrade of the existing BRD software and hardware capacity, duplicate information that is already available in the DOD annual report on animal use activities, and would not improve animal welfare. DOD also contended that information in the BRD is uniformly presented. DOD also provided technical comments, which we incorporated where appropriate. The changes that DOD proposes adopting will improve the quality of the BRD. But we believe that additional detail on each project summary is necessary to respond to the original direction of the House Armed Services Committee as well as to improve public accountability. Moreover, we feel that this detail can be provided in the BRD without a significant increase in resource expenditures. As pointed out in this report, the number and species of animals used and the pain category of the research are collected on a routine basis by DOD research and training facilities as a means of monitoring and tracking animal use activities. Furthermore, much of this information is already gathered for the DOD annual report although it is only reported in terms of aggregate animal use and not by individual projects. DOD also needs to ensure a more consistent level of reporting of animal use activities. Facilities conducting clinical research, for example, should submit summaries for the BRD at a project rather than program level. Incorporating these additional changes would further improve what is an important source of information on animal welfare to the public. In the course of our work examining issues related to DOD’s oversight of its animal research programs, we are reviewing the BRD because it contains information on individual animal use projects. As we reviewed information contained in the BRD, conducted interviews with DOD officials, reviewed relevant congressional reports, and performed data analyses to address the objectives for our study, we identified problems with information in the BRD. The BRD is prepared annually by DOD based on a questionnaire that it sends to those of its laboratories and contractors who use animals for research or training purposes. We reviewed the BRD in two forms. First, we selectively reviewed a version that is publicly available on the Internet (at http://ocean.dtic.mil/basis/matris/www/biowww/sf). Second, DOD supplied us with an electronic file that also identified the animal use category (for example, research on infectious diseases) on the 805 projects in the 1996 database. We reviewed all the projects in three animal use categories involving medical research—biological defense, combat casualty care, and ionizing radiation. These categories comprise approximately 22 percent of the 805 projects. We reviewed the summaries in these categories and compared the information contained in them with other sources, including DOD’s annual report to the Congress on its animal care and use programs for 1996. We interviewed officials from DOD’s Office of the Director of Defense for Research and Engineering; the Armed Forces Radiobiology Research Institute; the Uniformed Services University of the Health Sciences; the Office for Naval Research; the Naval Medical Research Institute; and Walter Reed Army Institute of Research in the Washington, D.C., area. We also interviewed officials from the U.S. Army Medical Research and Materiel Command in Frederick, Maryland; the Air Force Research Laboratory and the U.S. Army Clinical Investigations Regulatory Office in San Antonio, Texas; and the Army’s Landstuhl Regional Medical Center in Landstuhl, Germany. We reviewed DOD documents and reports relevant to animal care and use as well as related congressional reports. Our review was not based on a random sample of records from the BRD and, as a result, we have not drawn conclusions about the extent to which certain of our observations are present in the database as a whole. We conducted our review from October 1997 to October 1998 in accordance with generally accepted government auditing standards. As agreed with your office, unless you publicly announce its contents earlier, we plan no further distribution of this report until 30 days from its issue date. At that time, we will send copies of this report to other interested congressional committees, the Secretary of Defense, and other interested parties. We will also make copies available to others upon request. Please contact us if you or your staff have questions concerning this report. Kwai-Cheung Chan can be reached at (202) 512-3652. Stephen Backhus can be reached at (202) 512-7101. Other major contributors are listed in appendix II. Bruce D. Layton, Assistant Director Jaqueline Arroyo, Senior Evaluator Greg Whitney, Evaluator The first copy of each GAO report and testimony is free. Additional copies are $2 each. Orders should be sent to the following address, accompanied by a check or money order made out to the Superintendent of Documents, when necessary. VISA and MasterCard credit cards are accepted, also. Orders for 100 or more copies to be mailed to a single address are discounted 25 percent. U.S. General Accounting Office P.O. Box 37050 Washington, DC 20013 Room 1100 700 4th St. NW (corner of 4th and G Sts. NW) U.S. General Accounting Office Washington, DC Orders may also be placed by calling (202) 512-6000 or by using fax number (202) 512-6061, or TDD (202) 512-2537. Each day, GAO issues a list of newly available reports and testimony. To receive facsimile copies of the daily list or any list from the past 30 days, please call (202) 512-6000 using a touchtone phone. A recorded menu will provide information on how to obtain these lists.

Pursuant to a congressional request, GAO examined several issues related to the Department of Defense's (DOD) administration of its animal research programs, focusing on: (1) the extent to which DOD's research using animals addresses validated military objectives, does not unnecessarily duplicate work done elsewhere, and incorporates methods to reduce, replace, and refine the use of animals; and (2) problems with the accuracy of information in the Biomedical Research Database (BRD). GAO noted that: (1) the BRD provides improved public access to information about DOD's use of animals in its research activities; (2) GAO found instances in which the information in the BRD was inaccurate, incomplete, and inconsistent, resulting in inadequate public disclosure; (3) specifically, the fiscal year 1996 BRD: (a) misstated the number of animal use projects because it omitted some projects that used animals and included others that did not involve animals; (b) did not include information, such as the numbers and types of animals used, that was identified in House Report 103-499; and (c) contained significant differences in specificity reported for the research projects; and (4) although GAO did not quantify the full extent of these problems, the problems it has identified suggest a need for DOD action to improve the accuracy and extent of the information in the database.

During the first year of the advocacy review panel requirements’ implementation, OSHA convened a panel for one draft rule and published two other proposed rules for which panels were not held. SBA’s Chief Counsel for Advocacy agreed with OSHA’s certification that neither of these two proposed rules required an advocacy review panel. As of November 1, 1997, EPA had convened advocacy review panels for four draft rules. EPA also published 17 other proposed rules that were reviewed by OIRA for which panels were not held because EPA certified that the proposed rules would not have a significant economic impact on a substantial number of small entities. SBA’s Chief Counsel said that EPA should have convened panels for 2 of these 17 proposed rules—the rules setting national ambient air quality standards for ozone and for particulate matter. Some of the small entity representatives that we interviewed also said that EPA should have convened advocacy review panels for these two proposed rules. EPA officials said that review panels were not required for the ozone and particulate matter rules because they would not, by themselves, have a significant economic impact on a substantial number of small entities. The officials said that any effects that the rules would have on small entities would only occur when the states determine how the standards will be specifically implemented. However, SBA’s Chief Counsel for Advocacy disagreed with EPA’s assessment. He said that the promulgation of these two rules cannot be separated from their implementation, and that effects on small entities will flow “inexorably” from the standards EPA established. We could not determine whether EPA should have convened advocacy review panels for the ozone and particulate matter rules because there are no clear governmentwide criteria for determining whether a rule has a “significant economic impact on a substantial number of small entities.” Specifically, it is unclear whether health standards that an agency establishes by regulation should be considered separable from implementation requirements established by state governments or other entities. The Regulatory Flexibility Act (RFA), which SBREFA amended, does not define the term “significant economic impact on a substantial number of small entities.” Although the RFA requires the SBA Chief Counsel for Advocacy to monitor agencies’ compliance with the act, it does not expressly authorize SBA or any other entity to interpret key provisions. In a previous report we noted that agencies had different interpretations regarding how the RFA’s provisions should be interpreted. In another report, we said that if Congress wishes to strengthen the implementation of the RFA it should consider amending the act to provide clear authority and responsibility to interpret key provisions and issue guidance. In our report that is being issued today, we again conclude that governmentwide criteria are needed regarding what constitutes a “significant economic impact on a substantial number of small entities.” Therefore, we said that if Congress wishes to clarify and strengthen the implementation of the RFA and SBREFA, it should consider providing SBA or another entity with clear authority to interpret the RFA’s key provisions. We also said that Congress could consider establishing, or requiring SBA or some other entity to develop, governmentwide criteria defining the phrase “significant economic impact on a substantial number of small entities.” Specifically, those criteria should state whether the establishment of regulatory standards by a federal agency should be separated from implementation requirements imposed by other entities. Governmentwide criteria can help ensure consistency in how the RFA and SBREFA are implemented across federal agencies. However, those criteria must be flexible enough to allow for some agency-by-agency variations in the kinds of impacts that should be considered “significant” and what constitutes a “substantial” number of small entities. As of November 1, 1997, EPA and OSHA had convened five advocacy review panels. OSHA convened the first panel on September 10, 1996, to review its draft standard for occupational exposure to tuberculosis (TB). EPA convened panels to review the following four draft rules: (1) control of emissions of air pollution from nonroad diesel engines (Mar. 25, 1997); (2) effluent limitations guidelines and pretreatment standards for the industrial laundries point source category (June 6, 1997); (3) stormwater phase II—national pollutant discharge elimination system (June 19, 1997); and (4) effluent limitations guidelines and standards for the transportation equipment-cleaning industry (July 16, 1997). The panels, EPA and OSHA, and SBA’s Chief Counsel for Advocacy generally followed SBREFA’s procedural requirements on how those panels should be convened and conducted. For example, as required by the statute: EPA and OSHA notified the SBA Chief Counsel before each of the panels and provided him with information on the potential impacts of the draft rules and the types of small entities that might be affected. The Chief Counsel responded to EPA and OSHA no later than 15 days after receipt of these materials and helped identify individuals representative of the affected small entities. Each of the five panels reviewed materials that the regulatory agencies had prepared and collected advice and recommendations from the small entity representatives. However, there were a few minor inconsistencies with SBREFA’s specific statutory requirements in the five panels we reviewed. For example, three of the panels took a few days longer than the 60 days allowed by the statute to conclude their deliberations and issue a report. Also, EPA did not formally designate a chair for its panels until June 11, 1996—about 6 weeks later than the statute required. Members of Congress and congressional staff viewed this as an attempt to prejudice the panel members’ consideration, and the practice was changed. For subsequent panels, EPA developed a summary of the comments it had received from small entities before the panels were convened, which it provided to the panel members. The panel members themselves then gathered advice and recommendations from the small entity representatives and drafted the final reports. As of November 1, 1997, two of the draft rules for which EPA and OSHA held advocacy review panels had been published as notices of proposed rulemaking in the Federal Register—OSHA’s proposed rule on the occupational exposure to TB and EPA’s proposed rule to control nonroad diesel engine emissions. The panels’ recommendations for these draft rules focused on providing small entities with flexibility in how to comply with the rules and on the need to consider potentially overlapping local, state, and federal regulations and enforcement. OSHA and EPA primarily responded to the panels’ recommendations in the supplementary information sections of the proposed rules, although OSHA also made some changes to the text of its rule. For example, one of the TB panel’s major recommendations was that OSHA reexamine the application of the draft rule to homeless shelters. In the supplementary information section of the proposed rule, OSHA said that it was conducting a special study of this issue and would hold hearings on issue\ related to TB exposure in homeless shelters. The TB panel also recommended that OSHA examine the potential cost savings associated with allowing TB training that a worker received in one place of employment to be used to satisfy training requirements in another place of employment. In response, OSHA changed the text of the draft rule to allow the portability of nonsite specific training. officials had already decided how the rules would be written before convening the panels, and that the officials were not interested in making any significant changes to the rules. Although most of the 32 small entity representatives with whom we spoke said that they thought the review panel process was worthwhile, about three-fourths of them suggested changes to improve that process. Their comments primarily focused on the following four issues: (1) the time frames in which the panels were conducted, (2) the composition of the groups of small entity representatives commenting to the panels, (3) the methods the panels used to gather comments, and (4) the materials about the draft rules that the regulatory agencies provided. Seven of the small entity representatives said they would have liked more advance notice of panel meetings and telephone conference calls with the panels. Some of these representatives said that short notices had prevented them from participating in certain panel efforts. Fourteen representatives said they were not given enough time to study the materials provided before being asked to comment on the draft rules. Five representatives suggested holding the panels earlier in the rulemaking process to increase the likelihood that the panels could affect the draft rules. Fourteen small entity representatives thought that the composition of those providing input to the panels could be improved. Specifically, they said that the panels should have obtained input from more representatives of (1) individual small entities, not just representatives from associations; (2) certain types of affected small entities that were not included (e.g., from certain geographic areas); (3) small entities that would bear the burden of implementing the draft rules (e.g., small municipalities); and (4) small entities that were reviewing the draft rule for the first time, and that had not been previously involved in developing the draft rules. Nine of the small entity representatives said that the conference calls that OSHA and EPA typically used to obtain their views limited the amount of discussion that could take place. Most of these representatives expressed a preference for face-to-face meetings because they believed the discussions would be fuller and provide greater value to the panels. informed discussion of the rules’ potential impacts on small entities, eight representatives said they believed the materials could have been improved. Six thought the materials were too vague or did not provide enough information. However, two representatives said that the materials were too voluminous and complex to expeditiously review. The agency officials we interviewed also offered suggestions for improving the panels. Because you will be hearing from those same officials later in this hearing, I will not go into detail about those suggestions. However, their comments centered on some of the same issues raised by the small entity representatives, including the timing of the panels, the materials provided to the representatives, and the manner by which comments are obtained. Many of the agency officials and small entity representatives that we interviewed said they believed the panel process has provided an opportunity to identify significant impacts on small entities and has given the agencies a better appreciation of the small entities’ concerns. However, implementation of the panel process has not been without controversy or concern. Our greatest concern about the panel process is the lack of clarity regarding whether EPA should have convened advocacy review panels for its national ambient air quality standards for ozone and for particulate matter. That concern is directly traceable to the lack of agreed-upon governmentwide criteria as to when a rule has a “significant economic impact on a substantial number of small entities” under the RFA. If governmentwide criteria had been established regarding when initial regulatory flexibility analyses should be prepared (and, therefore, when SBREFA advocacy review panels should be convened), the dispute regarding whether EPA should have convened additional panels would likely not have arisen. In particular, governmentwide criteria should address whether the establishment of regulatory standards by a federal agency should be separated from the subsequent implementation requirements imposed by states or other entities. Some of the concerns that small entity representatives expressed about the panel process may be difficult to resolve. When panels are held earlier in the process, it is less likely that the materials will be fully developed to provide detailed data and analyses to the small entity representatives. However, delaying the panels until such data are available could limit the opportunity for small entities to influence key decisions. How agencies implement the advocacy review panel process will have a pronounced effect on its continued viability. If small entity representatives are given the opportunity to discuss the issues they believe are important and see that their input is taken seriously, it is likely that they will continue to view the panel process as a useful opportunity to provide their comments on draft rules relatively early in the rulemaking process. Mr. Chairman and Madam Chairwoman, this completes my prepared statement. I would be pleased to answer any questions. The first copy of each GAO report and testimony is free. Additional copies are $2 each. Orders should be sent to the following address, accompanied by a check or money order made out to the Superintendent of Documents, when necessary. VISA and MasterCard credit cards are accepted, also. Orders for 100 or more copies to be mailed to a single address are discounted 25 percent. U.S. General Accounting Office P.O. Box 37050 Washington, DC 20013 Room 1100 700 4th St. NW (corner of 4th and G Sts. NW) U.S. General Accounting Office Washington, DC Orders may also be placed by calling (202) 512-6000 or by using fax number (202) 512-6061, or TDD (202) 512-2537. Each day, GAO issues a list of newly available reports and testimony. To receive facsimile copies of the daily list or any list from the past 30 days, please call (202) 512-6000 using a touchtone phone. A recorded menu will provide information on how to obtain these lists.

GAO discussed the Small Business Regulatory Enforcement Fairness Act's (SBREFA) advocacy review panel provisions, focusing on: (1) whether the Environmental Protection Agency (EPA) or the Occupational Safety and Health Administration (OSHA) had applied the advocacy review panel requirements to all applicable rules that they proposed in the first year of the panel requirements; (2) whether the EPA and OSHA panels, the regulatory agencies themselves, and the Small Business Administration's (SBA) Chief Counsel for Advocacy followed the statute's procedural requirements; (3) identify any changes that EPA and OSHA made to the draft rules as a result of the panels' recommendations; and (4) identify any suggestions that agency officials and small entity representatives had regarding how the advocacy review panel process could be improved. GAO noted that: (1) as of November 1, 1997, EPA and OSHA had convened five review panels; (2) EPA and SBA's Chief Counsel for Advocacy disagree regarding the applicability of the panel requirements to two other rules that EPA proposed in December 1996--the national ambient air quality standards for ozone and for particulate matter; (3) specifically, EPA and the Chief Counsel disagree regarding whether the effects of states' implementation of these health standards can be separated from the standards themselves in determining whether EPA's rules may have a significant economic impact on a substantial number of small entities; (4) GAO suggested that Congress resolve this issue by taking steps to clarify the meaning of the term "significant impact"; (5) the agencies and the panels generally met SBREFA's procedural requirements, but there were several differences in how the panels operated; (6) the panels' recommendations regarding the two proposed rules that had been published as of November 1, 1997, focused on various issues, such as providing small entities with greater compliance flexibility and considering the effects of potentially overlapping regulations; (7) the agencies generally responded to those recommendations in the supplementary information sections of the proposed rules; and (8) the small entity representatives with whom GAO spoke and, to a lesser extent, the agency officials GAO interviewed, offered several suggestions to improve the advocacy review panel process.

In 2003, the Department of Homeland Security was created and tasked with integrating numerous agencies and offices with varying missions from the General Services Administration; the Federal Bureau of Investigation; and the Departments of Agriculture, Defense, Energy, Health and Human Services, Justice, Transportation, and Treasury; as well as the Coast Guard and the Secret Service. Eight DHS components have internal procurement offices with a Head of Contracting Activity (HCA) who reports directly to the component head and is accountable to the CPO. The Office of Procurement Operations (OPO) also has an HCA who provides contracting support to all other components and reports directly to the CPO. The HCA for each component has overall responsibility for the day-to-day management of the component’s acquisition function. Figure 1 shows the organizational relationship between the HCAs and the CPO. We reported in September 2006 that DHS planned to fully implement its acquisition oversight program during fiscal year 2007. The plan is composed of four recurring reviews: self-assessment, operational status, on-site, and acquisition planning. The CPO has issued an acquisition oversight program guidebook, provided training on self-assessment and operational status reviews, and began implementation of the four reviews in the plan (see table 1). The acquisition oversight plan generally incorporates basic principles of an effective and accountable acquisition function and includes mechanisms to monitor acquisition performance. Specifically, the plan incorporates DHS policy, internal controls, and elements of an effective acquisition function: organizational alignment and leadership, policies and processes, human capital, knowledge and information management, and financial accountability. While it is too early to assess the plan’s overall effectiveness in improving acquisition performance, initial implementation of the first self-assessment has helped most components prioritize actions to address identified weaknesses. In addition, the CPO has helped several components implement organizational and process changes that may improve acquisition performance over time. For example, one component, with the assistance of the CPO, elevated its acquisition office to a level equivalent to its financial office. However, the acquisition planning reviews are not sufficient to determine if components’ adequately plan their acquisitions. Federal acquisition regulations and DHS directives require agencies to perform acquisition planning in part to ensure good value, including cost and quality. Component HCAs are responsible to ensure that acquisition plans are completed in a timely manner, include an efficient and effective acquisition strategy and the resulting contract action or actions support the component’s mission. Inadequate procurement planning can lead to higher costs, schedule delays, and systems that do not meet mission objectives. Several recent reviews have identified problems in DHS’s acquisition planning. In 2006, we reported that DHS often opted for speed and convenience in lieu of planning and analysis when selecting a contracting method and may not have obtained a good value for millions of dollars in spending. As part of a 2006 special review of Federal Emergency Management Agency’s (FEMA) contracts, DHS’s CPO found significant problems with the requirements process and acquisition strategy and recommended in part that FEMA better plan acquisitions. For example, the CPO reported that FEMA’s total cost for its temporary housing program could have been significantly reduced if FEMA had appropriately planned to acquire temporary homes before the fiscal year 2005 hurricane season. A 2006 internal review of the Office of Procurement Operation’s contracts similarly found little evidence that acquisition planning occurred in compliance with regulations. While a key goal of the oversight program is to improve acquisition planning, we found potential problems with each of the three elements of the acquisition planning reviews, as shown in table 2. DHS faces two challenges in achieving the goals of its acquisition oversight plan. First, the CPO has had limited resources to implement the plan reviews. When implementation of the plan began in 2006, only two personnel were assigned acquisition oversight as their primary duty. The CPO received funding for eight additional oversight positions. However, officials told us that they have struggled to find qualified individuals. As of June 2007, seven positions had been filled. As part of the Department’s fiscal year 2008 appropriation request, the CPO is seeking two additional staff, for a total of 12 oversight positions. The CPO will also continue to rely on resources from components to implement the plan, such as providing staff for on-site reviews. Second, while the CPO can make recommendations based on oversight reviews, the component head ultimately determines what, if any, action will be taken. DHS’s organization relies on cooperation and collaboration between the CPO and components to accomplish departmentwide acquisition goals. However, to the extent that the CPO and components disagree on needed actions, the CPO lacks the authority to require compliance with recommendations. We have previously reported that the DHS system of dual accountability results in unclear working relationships between the CPO and component heads. DHS policy also leaves unclear what enforcement authority the CPO has to ensure that acquisition initiatives are carried out. In turn, we recommended that the Secretary of Homeland Security provide the CPO with sufficient enforcement authority to effectively oversee the Department’s acquisitions—a recommendation that has yet to be implemented. CPO officials believe that there are other mechanisms to influence component actions, such as providing input into HCA hiring decisions and performance appraisals. Making the most of opportunities to strengthen its acquisition oversight program—along with overcoming implementation challenges—could position the agency to achieve better acquisition outcomes. We identified two such opportunities: periodic external assessments of the oversight program and sharing knowledge gained from the oversight plan reviews across the department. Federal internal control standards call for periodic external assessments of programs to help ensure their effectiveness. An independent evaluation of DHS’s acquisition oversight program by the Inspector General or an external auditor could help strengthen the oversight conducted through the plan and better ensure that the program is fully implemented and maintaining its effectiveness over time. In particular, an external assessment with results communicated to appropriate officials can help maintain the strength of the oversight program by alerting DHS to acquisition concerns that require oversight, as well as monitoring the plan’s implementation. For example, the plan initially called for components to complete the self-assessment by surveying their acquisition staff; however, the level of staff input for the first self-assessments was left to the discretion of the HCAs. Specifically, CPO officials advised HCAs to complete the questions themselves, delegate the completion to one or more staff members, or select a few key people from outside their organization to participate. While evolution of the plan and its implementation is to be expected and can result in improvements, periodic external assessments of the plan could provide a mechanism for monitoring changes to ensure they do not diminish oversight. Federal internal control standards also call for effective communication to enable managers to carry out their responsibilities and better achieve components’ missions. The CPO has been assigned responsibility for ensuring the integrity of the oversight process—in part by providing lessons learned for acquisition program management and execution. While the CPO intends to share knowledge with components by posting lessons learned from operational status reviews to DHS’s intranet, according to CPO officials, the Web site is currently limited to providing guidance and training materials and does not include a formal mechanism to share lessons learned among components. In addition to the Web site, other opportunities may exist for sharing knowledge. For example, CPO officials indicated that the CPO meets monthly with component HCAs to discuss acquisition issues. The monthly meetings could provide an opportunity to share and discuss lessons learned from oversight reviews. Finally, knowledge could be regularly shared with component acquisition staff through internal memorandums or reports on the results of oversight reviews. Integrating 22 federal agencies while implementing acquisition processes needed to support DHS’s national security mission is a herculean effort. The CPO’s oversight plan generally incorporates basic principles of an effective acquisition function, but absent clear authority, the CPO’s recommendations for improved acquisition performance are, in effect, advisory. Additional actions are needed to achieve the plan’s objectives and opportunities exist to strengthen oversight through enhanced internal controls. Until DHS improves its approach for overseeing acquisition planning, the department will continue to be at risk of failing to identify and address recurring problems that have led to poor acquisition outcomes. To improve oversight of component acquisition planning processes and the overall effectiveness of the acquisition oversight plan, we recommend that the Secretary of Homeland Security direct the Chief Procurement Officer to take the following three actions: Reevaluate the approach to oversight of acquisition planning reviews and determine whether the mechanisms under the plan are sufficient to monitor component actions and improve component acquisition planning efforts. Request a periodic external assessment of the oversight plan implementation and ensure findings are communicated to and addressed by appropriate officials. Develop additional opportunities to share lessons learned from oversight reviews with DHS components. We provided a draft of this report to DHS for review and comment. In written comments, DHS generally agreed with our facts and conclusions and concurred with all of our recommendations and provided information on what actions would be taken to address them. Regarding the recommendation on acquisition planning, DHS stated that during on-site reviews they will verify that CPO comments on acquisition plans have been sufficiently addressed. DHS is also developing training for component HCAs and other personnel to emphasize that CPO comments related to compliance with applicable laws and regulations must be incorporated into acquisition plans. The CPO will also annually require an acquisition planning review as part of the oversight plan’s operational status reviews. Additionally, DHS intends to change the advanced acquisition planning database so that historical data are available for review. With regard to the recommendation for periodic external assessment of the oversight plan, DHS stated they plan to explore opportunities to establish a periodic external review of the oversight program. However, the first priority of the acquisition oversight office is to complete initial component on-site reviews. For the recommendation to develop additional opportunities to share lessons learned from oversight reviews, DHS stated it intends to share consolidated information from operational status and on-site reviews in regular meetings with component HCA staff. In addition, the CPO plans to explore further opportunities for sharing oversight results with the entire DHS acquisition community. DHS also responded to a 2005 GAO recommendation on the issue of the CPO lacking authority over the component HCAs. DHS commented that it is in the process of modifying its acquisition lines of business management directive to ensure that no DHS contracting organization is exempt. In addition, DHS stated that the Under Secretary for Management has authority as the Chief Acquisition Officer to monitor acquisition performance, establish clear lines of authority for making acquisition decisions, and manage the direction of acquisition policy for the department, and that these authorities also devolve to the CPO. Modifying the management directive to ensure no DHS contracting organization is exempt is a positive step. However, until DHS formally designates the Chief Acquisition Officer, and modifies applicable management directives to support this designation, DHS’s existing policy of dual accountability between the component heads and the CPO leaves unclear the CPO’s authority to enforce corrective actions to achieve the department’s acquisition goals, which was the basis of our earlier recommendation. DHS’s letter is reprinted in appendix II. DHS also provided technical comments which were incorporated as appropriate. We are sending copies of this report to interested congressional committees and the Secretary of Homeland Security. We will also make copies available to others upon request. In addition, the report will be available at no charge on GAO’s Web site at http://www.gao.gov. If you or your staff have questions regarding this report, please contact me at (202) 512-4841 or huttonj@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Principal contributors to this report were Amelia Shachoy, Assistant Director; William Russell; Tatiana Winger; Heddi Nieuwsma; Lily Chin; Karen Sloan; and Sylvia Schatz. To determine actions taken by DHS to implement the acquisition oversight plan and challenges DHS faces, we reviewed prior GAO and DHS Office of the Inspector General reports pertaining to acquisition oversight as well as relevant DHS documents, such as the oversight plan, documents of completed reviews and guidance to components, including training materials. We interviewed officials in the CPO’s office and the nine DHS components with acquisition offices. We compared efforts undertaken to implement the plan by DHS officials against established program policies, the fiscal year 2007 implementation schedule, and other guidance materials. We reviewed four component self-assessments that were provided to us and also reviewed areas in which the CPO provided assistance to components based on self-assessment results. We also reviewed Standards for Internal Control in the Federal Government. We conducted our work from February 2007 to June 2007 in accordance with generally accepted government auditing standards.

The Department of Homeland Security (DHS), the third largest department in federal procurement spending in fiscal year 2006, has faced ongoing cost, schedule, and performance problems with major acquisitions and procurement of services. In December 2005, DHS established an acquisition oversight program to provide insight into and improve components' acquisition programs. In 2006, GAO reported that DHS faced challenges in implementing its program. Congress mandated that DHS develop an oversight plan and tasked GAO with analyzing the plan. GAO (1) evaluated actions DHS and its components have taken to implement the acquisition oversight plan and (2) identified implementation challenges. GAO also identified opportunities for strengthening oversight conducted through the plan. GAO reviewed relevant DHS documents and GAO and DHS Inspector General reports and interviewed officials in the office of the Chief Procurement Officer (CPO) and nine DHS components. The CPO has taken several actions to implement DHS's acquisition oversight plan--which generally incorporates basic principles of an effective and accountable acquisition function. The plan monitors acquisition performance through four recurring reviews: self-assessment, operational status, on-site, and acquisition planning. Each component has completed the first self-assessment, which has helped components identify and prioritize acquisition weaknesses. In addition, each component has submitted an initial operational status report to the CPO and on-site reviews are being conducted. Despite this progress, the acquisition planning reviews are not sufficient to determine if components adequately plan their acquisitions--in part because a required review has not been implemented and the CPO lacks visibility into components' planning activities. DHS faces two key challenges in implementing its acquisition oversight plan. First, the CPO has had limited oversight resources to implement plan reviews. However, recent increases in staff have begun to address this challenge. Second, the CPO lacks sufficient authority to ensure components comply with the plan--despite being held accountable for departmentwide management and oversight of the acquisition function. GAO has previously recommended that DHS provide the CPO with sufficient enforcement authority to enable effective acquisition oversight. In addition to these challenges, GAO identified two opportunities to strengthen internal controls for overseeing the plan's implementation and for increasing knowledge sharing. Specifically, independent evaluations of DHS's oversight program could help ensure that the plan maintains its effectiveness over time. Sharing knowledge and lessons learned could provide DHS's acquisition workforce with the information needed to improve their acquisition processes and better achieve DHS's mission.

NASA launched the Hubble Space Telescope in 1990 aboard the space shuttle Discovery . Unlike other NASA space telescopes, Hubble was designed to be serviced regularly by astronauts. That design proved fortuitous when it was discovered that Hubble had a defective mirror that produced blurry images. Astronauts on the first servicing mission in 1993 were able to install corrective optics, allowing years of scientific accomplishments and generating widespread scientific and public support. Additional servicing missions were conducted in 1997, 1999, and 2002 to replace aging hardware and install advanced scientific instruments. Two more shuttle missions to Hubble were scheduled: a final servicing mission in 2004 (known as SM-4) and a retrieval mission to bring the telescope back to Earth in 2010. Following the space shuttle Columbia accident in February 2003, however, then-NASA Administrator Sean O'Keefe decided not to proceed with either flight. Current NASA Administrator Michael Griffin revisited that decision once the shuttle returned to regular flight. A servicing mission is now scheduled for October 8, 2008. No retrieval mission is currently planned. Roughly the size of a school bus, Hubble was designed to make astronomical observations of the universe in the visible, ultraviolet, and near-infrared wavelength bands. Although ground-based telescopes can also make visible and infrared observations, Hubble's location above Earth's atmosphere enhances image clarity, enabling astronomers to look at fainter, more distant objects and further back in time. Hubble is operated for NASA by the Space Telescope Science Institute (STStcI) near Baltimore, MD. Websites maintained by STScI ( http://hubblesite.org/ ) and NASA ( http://hubble.nasa.gov ) provide information about the telescope and its discoveries. Hubble was designed to operate for 15 years, a milestone that was reached on April 25, 2005. NASA had planned to extend the operational period until 2010, at which time the space shuttle would bring Hubble back to Earth to prevent an uncontrolled reentry that could pose a debris risk to populated areas. Funding constraints, however, led some NASA officials to conclude that Hubble's operations should be brought to end earlier than 2010. The "funding wedge" created by ending the servicing missions would be used to build the new James Webb Space Telescope (JWST), which is being designed for infrared observations. The JWST mission was "replanned" in 2006 and is now scheduled for launch in 2013 rather than 2011. The debate over how long to continue to operate Hubble, including the linkage with funding for the JWST, was under way at the time of the Columbia accident. During servicing visits to Hubble, shuttle crews repair or replace aging equipment and install updated scientific instruments. Hubble has six gyroscopes for pointing the telescope, but two are now nonfunctional and one has degraded performance. Until August 2005, three were required to achieve the accuracy needed for scientific observations. New techniques now allow operation on just two gyroscopes, so that one is kept in reserve. Solar arrays generate electricity for the telescope; the energy is stored in batteries. Hubble has no propulsion system, relying instead on the space shuttle to boost its orbit so that it does not reenter Earth's atmosphere. The tasks for the SM-4 mission included replacing all the gyroscopes and batteries and a fine guidance sensor, emplacing new thermal protection blankets, boosting Hubble's orbit, and installing two new scientific instruments (the Cosmic Origins Spectrograph for ultraviolet observations of chemical composition, and the Wide Field Camera 3 for observations from ultraviolet through near-infrared). All these tasks are also included in the planned 2008 servicing mission. One of Hubble's current instruments, the Advanced Camera for Surveys, malfunctioned in January 2007 and lost most of its capabilities. It was installed in March 2002 and was designed for five years of operation. Astronauts on the 2008 servicing mission will attempt to repair this instrument, even though NASA's plans did not originally call for that because of the difficulty and because the Wide Field Camera 3 will be more capable (although it will have a somewhat smaller field of view). The mission will also attempt to repair another malfunctioning instrument, the Space Telescope Imaging Spectrograph. On February 1, 2003, the space shuttle Columbia disintegrated as it returned to Earth following a 16-day scientific mission. All seven astronauts aboard perished. The shuttle system was immediately grounded. NASA established the Columbia Accident Investigation Board (CAIB) to determine the causes of the accident and recommend corrective actions. (For more on the Columbia accident, see CRS Report RS21408, NASA ' s Space Shuttle Program: The Columbia Tragedy, the Discovery Mission, and the Future of the Shuttle .) It was quickly apparent that SM-4 would be delayed. As the CAIB deliberated, NASA decided that the 2010 Hubble retrieval mission was too risky compared to the benefits. On January 16, 2004, Mr. O'Keefe informed workers at STScI and NASA's Goddard Space Flight Center (which built Hubble and oversees STScI) that he was canceling SM-4. According to the director of STScI, Dr. Steven Beckwith, Mr. O'Keefe cited several factors: the shuttle would not have the ISS as a safe haven; the changes required to meet the CAIB's recommendations regarding non-ISS related shuttle missions would not have application beyond the servicing mission, making their expense questionable; completing ISS construction by 2010 will require all the shuttle flights in that time period; Hubble's life would be extended for only a few years; and astronomers have other ground- and space-based telescopes they could use. Two days before Mr. O'Keefe announced his decision, President Bush directed NASA to embark on a new exploration initiative, requiring a shift in program and funding priorities. (See CRS Report RS21720, Space Exploration: Issues Concerning the " Vision for Space Exploration " . ) Funding for the new initiative would come primarily from canceling, deferring, or delaying other NASA programs. Although Mr. O'Keefe stated that the Hubble decision was based primarily on shuttle safety concerns, the timing of his announcement led many commentators to conclude that it was linked to the priority shifts required by the President's initiative. While some media accounts praised the NASA Administrator for making a difficult decision, others called Hubble "the first victim" of the President's initiative and chided NASA for putting the new exploration goals ahead of the astronomical research performed with Hubble. Initial opposition to the cancellation of SM-4 focused on attempts to reverse Mr. O'Keefe's decision and proceed with a shuttle mission. The debate centered on comparing the risk of a mission to Hubble with the risk of a mission to the ISS. Shortly after the cancellation decision, NASA's then-Chief Scientist, Dr. John Grunsfeld, an astronaut who was a member of the 1999 and 2002 Hubble servicing crews, commented that if a shuttle mission to Hubble were mounted, it would be necessary to have a second shuttle ready to launch in case the first one encountered difficulties. NASA has had a backup shuttle available for each of the shuttle launches since the Columbia accident, but may not for all future missions if safety modifications continue to work well. Attention soon shifted to robotic servicing options, which dominated the public discussion of Hubble's future throughout most of 2004. At a Senate Appropriations VA-HUD-IA Subcommittee hearing on March 11, 2004, Mr. O'Keefe agreed with a request from Senator Mikulski to ask the National Research Council (NRC) to study options for extending Hubble's life, including both shuttle and robotic missions. In November 2004, Congress passed the FY2005 Consolidated Appropriations Act ( P.L. 108-447 ), which provided $291 million for a Hubble servicing mission. The conference report ( H.Rept. 108-792 ) stated that "a successful servicing mission to Hubble should be one of NASA's highest priorities." The report language did not specify whether the servicing mission should involve the space shuttle or a robotic mission. The final NRC report on servicing options, released on December 8, 2004, found it "unlikely that NASA will be able to extend the science life of [Hubble] through robotic servicing" and that the risk of a shuttle mission to Hubble is similar to the risk of a single shuttle mission to the ISS. The report recommended a shuttle servicing mission, and a robotic mission only for deorbiting the telescope at the end of its useful lifetime. The robotic servicing option was off the table. Dr. Michael Griffin was sworn in as NASA Administrator, replacing Mr. O'Keefe, on April 14, 2005. At his Senate confirmation hearing on April 12, 2005, Dr. Griffin stated that he would revisit the question of whether to use the shuttle to service Hubble after the second successful post- Columbia shuttle flight, at which time NASA would be able to assess the risk factors associated with "essentially a new vehicle". The NASA Authorization Act of 2005 ( P.L. 109-155 ), enacted in December 2005, called for a shuttle servicing mission after the shuttle returned to flight successfully "unless such a mission would compromise astronaut safety." The second post- Columbia flight took place successfully in July 2006. In October 2006, NASA announced that a Hubble servicing mission will indeed take place. The launch is now scheduled for October 8, 2008, on space shuttle Atlantis . In October 2006, Administrator Griffin stated that the "cradle to grave" cost of the servicing mission will be $900 million: $500 million to keep the Hubble team together from 2004 through 2008; $200 million for the gyroscopes, batteries, and instruments that will be installed; $100 million for external tanks and solid-rocket boosters for the additional shuttle flight; and $100 million for shuttle launch processing. NASA expects that if the 2008 servicing mission is successful, Hubble will continue to operate until 2013, rather than being deorbited in 2010 as previously planned. According to one NASA official, "Hubble's most impressive accomplishments ... lie in its future." The cost of the additional years of operation, however, may affect funding and scheduling for other astronomy missions. For example, to offset the funding that Congress provided for Hubble in FY2005, NASA's May 2005 operating plan postponed two other astronomy missions and reduced funding for Mars exploration. Before the Columbia accident, the end of Hubble expenditures was expected to be a source of funding for the James Webb Space Telescope. According to NASA's FY2009 congressional budget justification, Hubble costs are expected to be $115 million in FY2011, $95 million in FY2012, and $94 million in FY2013, not including certain indirect costs. Plans for deorbiting Hubble remain uncertain. Before the Columbia accident, the space shuttle was to return Hubble to Earth at the end of its lifetime, but there is no longer any expectation of retrieval by the shuttle, whether or not the servicing mission in 2008 is successful. Hubble has no propulsion system of its own, however, so if it is not retrieved, a propulsion module would need to be attached to it to permit a controlled deorbit (that is, to ensure that any debris falls in an unpopulated area such as the Pacific Ocean). Analysis by NASA in 2005 indicated that Hubble is unlikely to make an uncontrolled reentry until at least 2020, rather than 2012 as previously believed, and the agency now considers the deorbiting issue to be "beyond the budget horizon." Boosting Hubble's orbit during the 2008 servicing mission will delay the date of reentry even further, but at some point, deorbiting will be necessary if an uncontrolled reentry is to be avoided.

The National Aeronautics and Space Administration (NASA) estimates that without a servicing mission to replace key components, the Hubble Space Telescope will cease scientific operations in 2008. In January 2004, then-NASA Administrator Sean O'Keefe announced that the space shuttle would no longer be used to service Hubble. He indicated that this decision was based primarily on safety concerns in the wake of the space shuttle Columbia accident in 2003. Many critics, however, saw it as the result of the new Vision for Space Exploration, announced by President Bush in January 2004, which focuses NASA's priorities on human and robotic exploration of the solar system. Hubble supporters sought to reverse the decision and proceed with a shuttle servicing mission. Michael Griffin, who became NASA Administrator in April 2005, stated that he would reassess whether to use the shuttle to service Hubble after there were two successful post-Columbia shuttle flights. The second post-Columbia flight took place successfully in July 2006. In October 2006, NASA approved a shuttle mission to service Hubble. That mission is now scheduled for October 8, 2008.

As we move further into the 21st century, it becomes increasingly important for the Congress, OMB, and executive agencies to face two overriding questions: What is the proper role for the federal government? How should the federal government do business? GPRA serves as a bridge between these two questions by linking results that the federal government seeks to achieve to the program approaches and resources that are necessary to achieve those results. The performance information produced by GPRA’s planning and reporting infrastructure can help build a government that is better equipped to deliver economical, efficient, and effective programs that can help address the challenges facing the federal government. Among the major challenges are instilling a results orientation, ensuring that daily operations contribute to results, understanding the performance consequences of budget decisions, coordinating crosscutting programs, and building the capacity to gather and use performance information. The cornerstone of federal efforts to successfully meet current and emerging public demands is to adopt a results orientation; that is, to develop a clear sense of the results an agency wants to achieve as opposed to the products and services (outputs) an agency produces and the processes used to produce them. Adopting a results-orientation requires transforming organizational cultures to improve decisionmaking, maximize performance, and assure accountability—it entails new ways of thinking and doing business. This transformation is not an easy one and requires investments of time and resources as well as sustained leadership commitment and attention. Based on the results of our governmentwide survey in 2000 of managers at 28 federal agencies, many agencies face significant challenges in instilling a results-orientation throughout the agency, as the following examples illustrate. At 11 agencies, less than half of the managers perceived, to at least a great extent, that a strong top leadership commitment to achieving results existed. At 26 agencies, less than half of the managers perceived, to at least a great extent, that employees received positive recognition for helping the agency accomplish its strategic goals. At 22 agencies, at least half of the managers reported that they were held accountable for the results of their programs to at least a great extent, but at only 1 agency did more than half of the managers report that they had the decisionmaking authority they needed to help the agency accomplish its strategic goals to a comparable extent. Additionally, in 2000, significantly more managers overall (84 percent) reported having performance measures for the programs they were involved with than the 76 percent who reported that in 1997, when we first surveyed federal managers regarding governmentwide implementation of GPRA. However, at no more than 7 of the 28 agencies did 50 percent or more of the managers respond that they used performance information to a great or very great extent for any of the key management activities we asked about. As I mentioned earlier, we are now moving to a more difficult but more important phase of GPRA—using results-oriented performance information on a routine basis as a part of agencies’ day-to-day management and for congressional and executive branch decisionmaking. GPRA is helping to ensure that agencies are focused squarely on results and have the capabilities to achieve those results. GPRA is also showing itself to be an important tool in helping the Congress and the executive branch understand how the agencies’ daily activities contribute to results that benefit the American people. To build leadership commitment and help ensure that managing for results becomes the standard way of doing business, some agencies are using performance agreements to define accountability for specific goals, monitor progress, and evaluate results. The Congress has recognized the role that performance agreements can play in holding organizations and executives accountable for results. For example, in 1998, the Congress chartered the Office of Student Financial Assistance as a performance- based organization, and required it to implement performance agreements. In our October 2000 report on agencies’ use of performance agreements, we found that although each agency developed and implemented agreements that reflected its specific organizational priorities, structure, and culture, our work identified five common emerging benefits from agencies’ use of results-oriented performance agreements. (See fig. 1.) Strengthens alignment of results-oriented goals with daily operations Fosters collaboration across organizational boundaries Enhances opportunities to discuss and routinely use performance information to make program improvements Provides results-oriented basis for individual accountability Maintains continuity of program goals during leadership transitions Performance agreements can be effective mechanisms to define accountability for specific goals and to align daily activities with results. For example, at the Veterans Health Administration (VHA), each Veterans Integrated Service Network (VISN) director’s agreement includes performance goals and specific targets that the VISN is responsible for accomplishing during the next year. The goals in the performance agreements are aligned with VHA’s, and subsequently the Department of Veterans Affairs’ (VA), overall mission and goals. A VHA official indicated that including corresponding goals in the performance agreements of VISN directors contributed to improvements in VA’s goals. For example, from fiscal years 1997 through 1999, VHA reported that its performance on the Prevention Index had improved from 69 to 81 percent. A goal requiring VISNs to produce measurable increases in the Prevention Index has been included in the directors’ performance agreements each year from 1997 through 1999. The Office of Personnel Management recently amended its regulations for members of the Senior Executive Service requiring agencies to appraise senior executive performance using measures that balance organizational results with customer, employee, and other perspectives in their next appraisal cycles. The regulations also place increased emphasis on using performance results as a basis for personnel decisions, such as pay, awards, and removal. We are planning to review agencies’ implementation of the amended regulations. Program evaluations are important for assessing the contributions that programs are making to results, determining factors affecting performance, and identifying opportunities for improvement. The Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) provides an example of how program evaluations can be used to help improve performance by identifying the relationships between an agency’s efforts and results. Specifically, APHIS used program evaluation to identify causes of a sudden outbreak of Mediterranean Fruit Flies along the Mexico-Guatemala border. The Department of Agriculture’s fiscal year 1999 performance report described the emergency program eradication activities initiated in response to the evaluation’s findings and recommendations, and linked the continuing decrease in the number of infestations during the fiscal year to these activities. However, our work has shown that agencies typically do not make full use of program evaluations as a tool for performance measurement and improvement. After a decade of government downsizing and curtailed investment, it is becoming increasingly clear that today’s human capital strategies are not appropriately constituted to adequately meet current and emerging needs of the government and its citizens in the most efficient, effective, and economical manner possible. Attention to strategic human capital management is important because building agency employees’ skills, knowledge, and individual performance must be a cornerstone of any serious effort to maximize the performance and ensure the accountability of the federal government. GPRA, with its explicit focus on program results, can serve as a tool for examining the programmatic implications of an agency’s strategic human capital management challenges. However, we reported in April 2001 that, overall, agencies’ fiscal year 2001 performance plans reflected different levels of attention to strategic human capital issues. When viewed collectively, we found that there is a need to increase the breadth, depth, and specificity of many related human capital goals and strategies and to better link them to the agencies’ strategic and programmatic planning. Very few of the agencies’ plans addressed succession planning to ensure reasonable continuity of leadership; performance agreements to align leaders’ performance expectations with the agency’s mission and goals; competitive compensation systems to help the agency attract, motivate, retain, and reward the people it needs; workforce deployment to support the agency’s goals and strategies; performance management systems, including pay and other meaningful incentives, to link performance to results; alignment of performance expectations with competencies to steer the workforce towards effectively pursuing the agency’s goals and strategies; and employee and labor relations grounded in a mutual effort on the strategies to achieve the agency’s goals and to resolve problems and conflicts fairly and effectively. In a recent report, we concluded that a substantial portion of the federal workforce will become eligible to retire or will retire over the next 5 years, and that workforce planning is critical for assuring that agencies have sufficient and appropriate staff considering these expected increases in retirements. OMB recently instructed executive branch agencies and departments to submit workforce analyses by June 29, 2001. These analyses are to address areas such as the skills of the workforce necessary to accomplish the agency’s goals and objectives; the agency’s recruitment, training, and retention strategies; and the expected skill imbalances due to retirements over the next 5 years. OMB also noted that this is the initial phase of implementing the President’s initiative to have agencies restructure their workforces to streamline their organizations. These actions indicate OMB’s growing interest in working with agencies to ensure that they have the human capital capabilities needed to achieve their strategic goals and accomplish their missions. Major management challenges and program risks confronting agencies continue to undermine the economy, efficiency, and effectiveness of federal programs. As you know, Mr. Chairman, this past January, we updated our High-Risk Series and issued our 21-volume Performance and Accountability Series and governmentwide perspective that outlines the major management challenges and program risks that federal agencies continue to face. This series is intended to help the Congress and the administration consider the actions needed to support the transition to a more results-oriented and accountable federal government. GPRA is a vehicle for ensuring that agencies have the internal management capabilities needed to achieve results. OMB has required that agencies’ annual performance plans include performance goals for resolving their major management problems. Such goals should be included particularly for problems whose resolution is mission-critical, or which could potentially impede achievement of performance goals. This guidance should help agencies address critical management problems to achieve their strategic goals and accomplish their missions. OMB’s attention to such issues is important because we have found that agencies are not consistently using GPRA to show how they plan to address major management issues. A key objective of GPRA is to help the Congress, OMB, and executive agencies develop a clearer understanding of what is being achieved in relation to what is being spent. Linking planned performance with budget requests and financial reports is an essential step in building a culture of performance management. Such an alignment infuses performance concerns into budgetary deliberations, prompting agencies to reassess their performance goals and strategies and to more clearly understand the cost of performance. For the fiscal year 2002 budget process, OMB called for agencies to prepare an integrated annual performance plan and budget and asked the agencies to report on the progress they had made in better understanding the relationship between budgetary resources and performance results and on their plans for further improvement. In the 4 years since the governmentwide implementation of GPRA, we have seen more agencies make more explicit links between their annual performance plans and budgets. Although these links have varied substantially and reflect agencies’ goals and organizational structures, the connections between performance and budgeting have become more specific and thus more informative. We have also noted progress in agencies’ ability to reflect the cost of performance in the statements of net cost presented in annual financial statements. Again, there is substantial variation in the presentation of these statements, but agencies are developing ways to better capture the cost of performance. Virtually all of the results that the federal government strives to achieve require the concerted and coordinated efforts of two or more agencies. There are over 40 program areas across the government, related to a dozen federal mission areas, in which our work has shown that mission fragmentation and program overlap are widespread, and that crosscutting federal program efforts are not well coordinated. To illustrate, in a November 2000 report, and in several recent testimonies, we noted that overall federal efforts to combat terrorism were fragmented. These efforts are inherently difficult to lead and manage because the policy, strategy, programs, and activities to combat terrorism cut across more than 40 agencies. As we have repeatedly stated, there needs to be a comprehensive national strategy on combating terrorism that has clearly defined outcomes. For example, the national strategy should include a goal to improve state and local response capabilities. Desired outcomes should be linked to a level of preparedness that response teams should achieve. We believe that, without this type of specificity in a national strategy, the nation will continue to miss opportunities to focus and shape the various federal programs combating terrorism. Crosscutting program areas that are not effectively coordinated waste scarce funds, confuse and frustrate program customers, and undercut the overall effectiveness of the federal effort. GPRA offers a structured and governmentwide means for rationalizing these crosscutting efforts. The strategic, annual, and governmentwide performance planning processes under GPRA provide opportunities for agencies to work together to ensure that agency goals for crosscutting programs complement those of other agencies; program strategies are mutually reinforcing; and, as appropriate, common performance measures are used. If GPRA is effectively implemented, the governmentwide performance plan and the agencies’ annual performance plans and reports should provide the Congress with new information on agencies and programs addressing similar results. Once these programs are identified, the Congress can consider the associated policy, management, and performance implications of crosscutting programs as part of its oversight of the executive branch. Credible performance information is essential for the Congress and the executive branch to accurately assess agencies’ progress towards achieving their goals. However, limited confidence in the credibility of performance information is one of the major continuing weaknesses with GPRA implementation. The federal government provides services in many areas through the state and local level, thus both program management and accountability responsibilities often rest with the state and local governments. In an intergovernmental environment, agencies are challenged to collect accurate, timely, and consistent national performance data because they rely on data from the states. For example, earlier this spring, the Environmental Protection Agency identified, in its fiscal year 2000 performance report, data limitations in its Safe Drinking Water Information System due to recurring reports of discrepancies between national and state databases, as well as specific misidentifications reported by individual utilities. Also, the Department of Transportation could not show actual fiscal year 2000 performance information for measures associated with its outcome of less highway congestion. Because such data would not be available until after September 2001, Transportation used projected data. According to the department, the data were not available because they are provided by the states, and the states’ reporting cycles for these data do not match its reporting cycle for its annual performance. Discussing data credibility and related issues in performance reports can provide important contextual information to the Congress. The Congress can use this discussion, for example, to raise questions about the problems agencies are having in collecting needed results-oriented information and the cost and data quality trade-offs associated with various collection strategies.

This testimony discusses the Government Performance and Results Act (GPRA) of 1993. During the last decade, Congress, the Office of Management and Budget, and executive agencies have worked to implement a statutory framework to improve the performance and accountability of the executive branch and to enhance executive branch and congressional decisionmaking. The core of this framework includes financial management legislation, especially GPRA. As a result of this framework, there has been substantial progress in the last few years in establishing the basic infrastructure needed to create high-performing federal organizations. The issuance of agencies' fiscal year 2000 performance reports, in addition to updated strategic plans, annual performance plans, and the governmentwide performance plans, completes two full cycles of annual performance planning and reporting under GPRA. However, much work remains before this framework is effectively implemented across the government, including transforming agencies' organizational cultures to improve decisionmaking and strengthen performance and accountability.

In the Anglo-American linguistic tradition, the word "charter" has been used to refer to many legal writs, including "articles of agreement," "founding legislation," "contracts," "articles of incorporation," and more. The varied uses of this term to refer to so many different legal writs may reflect the term's etymology. "Charter" is derived from the Latin "charta" or, perhaps, the ancient Greek "chartês," both of which mean "paper." As used in federal statutory law, the term "charter" usually has carried a much more specific meaning. A congressional or federal charter is a federal statute that establishes a corporation. Such a charter typically provides the following characteristics for the corporation: (1) Name; (2) Purpose(s); (3) Duration of existence; (4) Governance structure (e.g., executives, board members, etc.); (5) Powers of the corporation; and (6) Federal oversight powers. Beyond conferring the powers needed to achieve its statutorily assigned goal, a charter usually provides a corporation with a set of standard operational powers: the power to sue and be sued; to contract and be contracted with; to acquire, hold, and convey property; and so forth. Many of the original 13 colonies were established by royal charters, and both colonies and states incorporated governmental and private entities before the United States was established. However, at the Constitutional Convention in Philadelphia in 1787, the Founders disagreed over the wisdom of giving the proposed federal government the power to charter corporations. Nevertheless, Congress chartered its first corporation—the Bank of the United States—in February of 1791 (1 Stat. 192 Section 3). Any dispute over Congress's power to charter corporations was effectively put to an end by the Supreme Court's decision in McCulloch v. Maryland in 1819 (17 U.S. (4 Wheat.) 315). The Court ruled that incorporation could be a "necessary and proper" means for the federal government to achieve an end assigned to it by the U.S. Constitution. After chartering the national bank, though, for the next century, Congress issued charters mostly in its role as manager of the affairs of the District of Columbia (Article I, Section 8, clause 17). The District of Columbia, which became the seat of the federal government in 1790, had neither a general incorporation law nor a legislature that could grant charters. So it fell to Congress incorporate the District's corporations. Thus, Congress issued charters to establish the office of the mayor and the "Council of the City of Washington" in 1802 (2 Stat. 195-197) and to found the Washington City Orphan Asylum in 1828 (6 Stat. 381). Congress, however, also used charters to establish entities of national significance, such as the transcontinental Union-Pacific railroad in 1862 (12 Stat. 489). In the 20 th century, Congress began chartering a large number of corporations for diverse purposes. In part, Congress's resort to the corporate device was a response to a host of national crises, such as the two World Wars (which required the production of an enormous number of goods) and the Great Depression (which revealed the limited power the federal government had over the national economy). Corporations, it was thought, were by nature better suited than typical government agencies to handle policy areas that required commercial-type activities (for example, selling electrical power, as the Tennessee Valley Authority does). While each congressionally chartered corporation is unique insofar as it is fashioned for a very particular purpose, these entities still may be sorted into rough types. An elementary division is between those chartered as nonprofit corporations versus those that are not. Table 1 provides a further—but not exhaustive—typology of congressionally chartered corporations. Congressionally chartered corporations have raised diverse issues for Congress, including (1) Title 36 corporations' membership practices; (2) prohibitions on Title 36 corporations engaging in "political activities"; (3) confusion over which corporations are governmental and which are private; and (4) federal management of these corporations. The membership practices of some Title 36 corporations periodically have been a subject of concern. In 2011, Congress revised the membership criteria of the Blue Star Mothers of America, Inc. (36 U.S.C. 305) by enacting a statute ( P.L. 112-65 ; 125 Stat. 767). The change, which the organization had advocated, liberalized the membership requirements so as to enable the organization to admit a larger number of members. Similarly, Congress amended the charter of the Military Order of the Purple Heart of the United States of America, Incorporated, in 2007 to make its membership requirements less stringent ( P.L. 110-207 ; 122 Stat. 719). Some individuals had complained that the organization's criteria for membership were too narrow. In 2005, the congressionally chartered American Gold Star Mothers (AGSM) refused to admit to membership a non-U.S. citizen. Some individuals and members of the media called upon Congress to intervene and rectify this situation. Ultimately, the group used its own authorities to address the issue. Approximately 100 Title 36 corporations exist, thus Congress again may find itself having to consider legislation to contend with the membership issues of such organizations. More than half of the Title 36 corporations' charters include prohibitions against various "political activities." For example, the charter of the United States Submarine Veterans of World War II, states the following: "Political Activities. The corporation or a director or officer as such may not contribute to, support, or otherwise participate in any political activity or in any manner attempt to influence legislation" (36 U.S.C. 220707(b)). Other Title 36 corporations' charters forbid them from promoting the candidacy of an individual seeking office (e.g., The American Legion), or contributing to, supporting, or assisting a political party or candidate (e.g., AMVETS). Congressionally chartered organizations that are subject to political activities restrictions occasionally have asked Congress to remove these restrictions from their charters. For example, on May 21, 2008, Representative James P. Moran introduced H.R. 6118 (110 th Congress), which would have removed the political activities prohibition from the charter of Gold Star Wives. Representative Moran stated that this prohibition against attempting to influence legislation hurt the organizations "advocacy on behalf of military families." He also said that the prohibition was "punitive, not practically enforceable, and potentially an unconstitutional infringement upon the [First Amendment] freedom to petition the Government." The bill was referred to the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, which took no action on it. Having political activities restrictions in congressional charters raises at least three issues: (1) Should any or all Title 36 corporations be forbidden from engaging in political activities? (2) If some or all of them should be so restricted, which activities ought to be defined as political? (3) Should Title 36 corporations only have the same restrictions on their political activities as purely private sector not-for-profit corporations? Congress is free to draft corporate charters to include whatever elements it deems appropriate. So, for example, the charter of the Securities Investor Protection Corporation (15 U.S.C. 78(ccc) et seq.) looks very different from that of the American National Red Cross (36 U.S.C. 3001 et seq.). The power to craft corporations ad hoc, however, has produced confusion when corporations are established quasi governmental entities (i.e. entities that have both governmental and private sector attributes). This distinction is not without consequence; governmental entities operate under different legal authorities and restrictions than do private sector corporations. For example, federal agencies typically must follow many or all of the federal government's general management laws. Thus, confusion arose over the National Veterans' Business Development Corporation (NVBDC; 15 U.S.C. 657(c)). The Department of Justice declared it to be a government corporation in March 2004. Some members of Congress disagreed. The 2004 Omnibus Appropriations Act ( P.L. 108-447 , Division K, Section 146) attempted to dispel the confusion by stating that the NVBDC was "a private entity" that "is not an agency, instrumentality, authority, entity, or establishment of the United States Government." In some instances, federal courts have been asked to intervene and make a determination of a corporation's status. The management of government corporations has been made difficult by a few factors. First, no single federal department or office is charged with overseeing the activities of all congressionally chartered corporations. Second, many of these corporations were established independently of any department and have few, if any, federal appointees on their boards or in their executive ranks. This separation of corporations from departments may make the federal management of corporations more difficult. Third, the Government Corporation Control Act (31 U.S.C. 9101-9110) provides many tools for managing chartered corporations' activities. However, Congress has excepted many corporations from some or all of the act's provisions. Finally, there is the matter of perpetual succession. In centuries past, states and municipalities often limited the duration of a charter; a corporation would expire unless the sovereign renewed its charter. This practice has fallen by the wayside; usually, Congress charters entities to have "perpetual succession." This means that a corporation may continue to operate, whether it is effective or not, until a law is enacted to abolish it—which seldom occurs. Long-lived chartered entities have been accused of taking business from the private sector, moving into areas of business or activities outside the bounds of their charters, and developing networks of influence to protect themselves from abolition.

A congressional or federal charter is a federal statute that establishes a corporation. Congress has issued charters since 1791, although most charters were issued after the start of the 20th century. Congress has used charters to create a variety of corporate entities, such as banks, government-sponsored enterprises, commercial corporations, venture capital funds, and quasi governmental entities. Congressionally chartered corporations have raised diverse issues for Congress, including (1) Title 36 corporations' membership practices; (2) prohibitions on Title 36 corporations engaging in "political activities"; (3) confusion over which corporations are governmental and which are private; and (4) federal management of these corporations. This report will be updated annually. Readers seeking additional information about congressionally chartered organizations may consult: CRS Report RL30365, Federal Government Corporations: An Overview, by [author name scrubbed]; CRS Report RL30533, The Quasi Government: Hybrid Organizations with Both Government and Private Sector Legal Characteristics, by [author name scrubbed]; and CRS Report RL30340, Congressionally Chartered Nonprofit Organizations ("Title 36 Corporations"): What They Are and How Congress Treats Them, by [author name scrubbed].

Paragraph 5(a) of Senate Rule XXVI, sometimes referred to as the "two-hour rule," restricts the times that most Senate committees and subcommittees can meet when the full Senate is in session. The rule, which has evolved over the years, is intended to help balance the Senate's committee and floor work and to minimize the logistical conflicts that Senators face between participating in committee hearings and markups and attending to their duties on the chamber floor. The two-hour rule applies to all committee meetings, including hearings and markups. Pursuant to paragraph 5(a) of Senate Rule XXVI, no Senate committee or subcommittee (except for the Appropriations and Budget Committees and their subcommittees) can meet after the Senate has been in session for two hours or past 2:00 p.m. unless both the majority and minority leaders (or their designees) agree to permit the meeting and their agreement has been announced on the floor. The Senate can also, by unanimous consent, grant permission for committees to meet, and until recently the practice was for a Senator to ask unanimous consent that committees be authorized to meet, rather than for the leaders to announce their agreement that meetings be permitted. A third but arguably impractical option is for the Senate to adopt a privileged motion to allow the meeting. Most of the time, the restrictions of the two-hour rule are not invoked. It is a routine, often daily, occurrence for committees to be given permission to meet during periods proscribed by the rule after agreements are announced on the Senate floor that grant them the authority to do so. Committee staff, when preparing for a hearing or a markup, routinely notify floor staff of the time and date of the meeting to ensure it is included in any unanimous consent agreement or joint leadership announcement. Sometimes, however, the two-hour rule's restrictions on committee meeting are insisted upon, most commonly as a form of protest or to delay a committee's action on a specific measure or matter. To invoke the rule does not necessarily require any formal parliamentary action. Senators can object if a unanimous consent agreement for committees to meet is propounded on the floor. In practice, however, informal communication with leadership is likely required to invoke the rule. This is true not only because the leaders alone could grant permission for committees to meet but also because, from a practical perspective, it would be difficult for Senators to predict when any unanimous consent agreement might be propounded so that they could arrange to be present to object. It was the long-standing practice of the Senate that, after receiving the requests from committees and clearing them with the minority leader, the majority leader (or a designee) would state on the floor I have [number] unanimous consent requests for committees to meet during today's session of the Senate. They have the approval of the majority and minority leaders. I ask consent that these requests be agreed to and these requests be printed in the R ecord . If no Senator objected, the Congressional Record would print, as if they were spoken on the floor, a series of unanimous consent requests for each committee to meet at stated times, each request being ordered "without objection." Perhaps partly due to this practice, it was widely understood in the Senate that unanimous consent was necessary to permit committees to meet after the Senate was in session for two hours or past 2:00 p.m. If leaders usually honored any request to prevent committees from meeting, then that practice would also leave the impression that unanimous consent was required. Currently, permission for Senate committees to sit during times prohibited by the two-hour rule is being granted almost exclusively by joint leadership agreement instead of by unanimous consent, a change from prior practice. A Senator on the floor now typically states I have [number] requests for committees to meet during today's session of the Senate. They have the approval of the majority and minority leaders. The presiding officer responds, "duly noted" to the Senator; no opportunity is afforded for a Senator to object, because unanimous consent is not requested. The list of committees authorized to meet is then printed in the Congressional Record following the statement made on the floor . Joint leadership permission has been used over 130 times since November 30, 2016, to authorize one or more Senate committees to meet during restricted hours and now appears to be the preferred way to provide a waiver of the rule. The change in practice might be in response to an apparent increase in invoking the rule, discussed in the final section of this report. The consequences for a Senate committee of violating the two-hour rule are potentially significant. Any action taken by a committee during a meeting prohibited by the rule is "null, void, and of no effect." For example, a nomination reported by a committee when it did not have authority to meet "is not properly before the Senate and, on a point of order, will be returned to committee." If a Senate committee was meeting without permission, it would immediately have to adjourn when the restricted hour arrived in order to comply with the rule. In response to the two-hour rule being invoked, a Senate committee could cancel its meeting or reschedule it to periods not covered by the rule—for example, meeting early in the morning before the Senate has convened or after it has adjourned. The Senate could also recess or adjourn in order for a committee to sit during the hours restricted by the two-hour rule, and in some cases it has done so in order for a committee to hear testimony or act on an important measure or matter. There are examples of Senate committees adjourning an official hearing pursuant to the two-hour rule and continuing to interact with witnesses in a non-formal setting, characterized as a "briefing" or "listening session." Such gatherings are not official, however, and do not enjoy the same powers and protections of actual Senate hearings. For example, witnesses could not testify under oath at such a meeting, and no official transcript of the interactions would be kept. Senate rules restricting committee meeting times have existed for over 70 years and have evolved over time. A rule limiting committees from sitting while the Senate is in session was first enacted in Section 134(c) of P.L. 79-753, the Legislative Reorganization Act (LRA) of 1946, which stated No standing committee of the Senate or the House, except the Committee on Rules of the House, shall sit without special leave, while the Senate or the House, as the case may be, is in session. The stated intent of the1946 rule was to reduce scheduling conflicts between committee and floor work. The Senate committee report accompanying the 1946 act predicted that the new rule would "make for closer concentration on committee work, on the one hand, and for fuller attendance on the floor, on the other." Under the 1946 form of the rule, all Senate committees had to cease sitting when the Senate went into session unless the unanimous consent of the Senate to meet was obtained. The provisions of the 1946 LRA were superseded on January 30, 1964, by Senate adoption of S.Res. 111, which placed an amended restriction on committee meetings in (then) paragraph 5 of Rule XXV of the standing rules of the Senate. As adopted, S.Res.111 stated Sec.1 No standing committee shall sit without special leave while the Senate is in session after (1) the conclusion of the morning hour, or (2) the Senate has proceeded to the consideration of unfinished business, pending business, or any other business except private bills and the routine morning business, whichever is earlier. Sec.2 Section 134(c) of the Legislative Reorganization Act of 1946 shall not be applicable to the standing committees of the Senate. The 1964 amendment to the standing rules was intended to provide additional periods for Senate committees to meet. Legislative history documents accompanying S.Res.111 make clear that many Senators felt the 1946 LRA rule had been too restrictive and had impeded the ability of committees to conduct their work. As two Senators noted in individual views in the committee report accompanying S.Res.111 Every Senator has had the experience of having consideration of a measure in which he is vitally interested repeatedly put off because of the inability of standing committees to meet ... while the Senate is in session. The problem has now assumed a chronic and persistent character. Objections against committees sitting are lodged as a matter of course, and often it is only in the exceptional case that a committee is able to secure unanimous consent to sit.... As the sessions of the Congress drag on through the year, the problem of finding time for committee work grows progressively worse. Daily sessions of the Senate begin earlier and end later, occupying an increasingly greater share of the working hours of the day. And, as if matters were not bad enough, as the time available for committee work decreases, the need for time to clear committee dockets before the end of the session grows more urgent. Whereas, under the 1946 LRA provision, no Senate committee could meet at any time that the Senate was in session, the 1964 amendment effected by S.Res. 111 permitted committees to sit during the first two hours of Senate session on a new legislative day (a period known as the "Morning Hour") and immediately thereafter if the Senate was engaged in routine "housekeeping" business or the processing of private bills. Subsequently, Section 117(a) of P.L. 91-510, the Legislative Reorganization Act of 1970, enacted on October 26, 1970, established a provision in law that supplemented the 1964 version of the rule contained in paragraph 5 of Senate Rule XXV. That statutory provision stated Except as otherwise provided in this subsection, no standing committee of the Senate shall sit, without special leave, while the Senate is in session. The prohibition contained in the preceding sentence shall not apply to the Committee on Appropriations of the Senate. Any other standing committee of the Senate may sit for any purpose while the Senate is in session if consent therefor has been obtained from the majority leader and the minority leader of the Senate. In the event of the absence of either of such leaders, the consent of the absent leader may be given by a Senator designated by such leader for that purpose. Notwithstanding the provisions of this subsection, any standing committee of the Senate may sit without special leave for any purpose as authorized by paragraph 5 of rule XXV of the Standing Rules of the Senate. The cumulative effect of the 1970 statutory provision and the still-existing provisions of Senate Rule XXV adopted in 1964 were to exempt the Appropriations Committee from any restrictions on meeting and to permit a committee to sit during a restricted period not just if it obtained the unanimous consent of the Senate to do so but also if the majority and minority leaders (or their designees) jointly authorized it to do so. The present form of the two-hour rule, which combined the provisions of the 1964 standing rule and the 1970 statutory provision, was adopted by the Senate on February 4, 1977, via Section 402 of S.Res. 4 , a resolution implementing the recommendations of the Temporary Select Committee to Study the Senate Committee System. The 1977 rules change added an exception for the Committee on the Budget, created in 1974, from the existing restrictions on meeting. Subsequent Senate action relocated the two-hour rule unchanged from Rule XXV to its current place in Section 5(a) of Rule XXVI. Table 1 lists examples identified by CRS of the enforcement of the two-hour rule between 1985 and 2017. The table includes the date the rule was invoked; where possible, an identification of the committee or committees affected; a summary of the proceedings; and a citation to the Congressional Record page, news account, or hearing transcript used to identify the table entry. In preparing the table, CRS conducted full-text searches in the Congressional Record and electronic news databases for either discussion of the rule or instances of objection to unanimous consent requests authorizing committees to meet. Not included in the table are instances where Senators or their staff indicated an intention to invoke the two-hour rule but for which no further evidence demonstrates that the rule was enforced. CRS cannot guarantee that these records are comprehensive of all instances of the two-hour rule being invoked. First, as discussed above, public action is not necessary to invoke the rule. As seen from the cases in Table 1 , sometimes no statement regarding authority for committees to meet was made on the floor. The majority leader was simply made aware that there was not an agreement and therefore no consent request or announcement was ever made on the floor. In 2017, in contrast, announcements were sometimes made when agreement was not reached, an apparently new practice that could affect results. Second, because the research is necessarily partly dependent on news accounts, variations in the nature of reporting on Senate action could potentially affect the results, although it is reasonable to expect unexpected adjustments to committee meetings and schedules to be newsworthy over the entire period under study. Third, and finally, various full-text search strategies employed may not necessarily identify every reported instance or every objection to a unanimous consent request made on the floor. Nevertheless, the cases identified suggest two general trends in the use of the two-hour rule. First, as has been noted, for the life of the two-hour rule, it has been a routine occurrence for committees to be given permission to meet during restricted periods. In recent years, however, it appears that the restrictions on sitting contained in the rule are being invoked more frequently. Over the 32-year period examined, CRS identified 47 occasions where one or more Senate committees had a meeting restricted by invocation of the two-hour rule. Over half of these instances have occurred since 2005. The eight instances identified by CRS as occurring in 2017 represent the highest number in any year over the period. Second, these data suggest that, since 1985, when the two-hour rule restrictions on committee meetings have been invoked, it appears to have been done in a large majority of cases as a form of protest or to delay committee action on a specific measure or matter. Invoking the rule to delay the consideration of judicial nominations has been particularly common.

Paragraph 5(a) of Senate Rule XXVI, sometimes referred to as the "two-hour rule," restricts the times that most Senate committees and subcommittees can meet when the full Senate is in session. The rule is intended to help balance the Senate's committee and floor work and to minimize the logistical conflicts that Senators face between participating in committee hearings and markups and attending to their duties on the chamber floor. Under the terms of the rule, no Senate committee or subcommittee (except the Committees on Appropriations and Budget and their subcommittees) can meet after the Senate has been in session for two hours or past 2:00 p.m. unless one of the following things occur: (1) the Senate grants unanimous consent for them to meet; (2) both the majority and minority leaders (or their designees) agree to permit the meeting, and their agreement has been announced on the Senate floor; or (3) the Senate adopts a privileged motion to allow the meeting. Should a committee meet during a restricted time period without being granted permission, any action that it takes—such as ordering a bill or nomination reported to the Senate—is considered "null, void, and of no effect." Senate rules restricting committee meeting times have existed for over 70 years and have evolved over time. A rule limiting committees from sitting while the Senate is in session was first enacted in Section 134(c) of P.L. 79-753, the Legislative Reorganization Act (LRA) of 1946. Rules regulating the meeting times of Senate committees were amended in 1964 and again in 1970. The Senate adopted the present form of the two-hour rule on February 4, 1977, via Section 402 of S.Res. 4, a resolution implementing the recommendations of the Temporary Select Committee to Study the Senate Committee System. Permission for committees to sit during the hours restricted by the rule is routinely granted in the Senate. On occasion, however, the two-hour rule is invoked, most often as a form of protest or in order to delay committee action on a particular measure or matter. Invoking the rule for these reasons has increased in recent years. Permission to sit during times prohibited by the rule is now most often granted by joint leadership agreement instead of by unanimous consent, a change from prior practice.

On January 5, 2007, Adrian Fenty, the mayor of the District Columbia, released a detailed legislative proposal that would transfer administrative, policy making, and budgetary authority for the District of Columbia's public schools from the District of Columbia Board of Education to the mayor. The proposal, "The District of Columbia Public Education Reform Amendment Act of 2007" (Education Reform Act), was introduced one day after the mayor was sworn in. Key elements of the proposal would create a new cabinet-level department for public school education to be managed by a "Chancellor of the District of Columbia Public Schools," appointed by the mayor with the advice and consent of the city council; reduce the authority and power of the Board of Education from an independent governing and policymaking entity to an advisory body to the mayor; and transfer the current Board of Education charter-school authority to the State Education Office. transfer the authority to set the budget for the District of Columbia schools to the mayor. Congress's authority to review, amend, and approve or disapprove the mayor's education proposal is derived from the "District Clause" of the Constitution, which states that Congress has the power To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States. In 1973, Congress passed the District of Columbia Self-Government and Governmental Reorganization Act, P.L. 93-198 (Home Rule Act), which granted the District citizens an elected form of government with limited home rule. The Home Rule Act gave District voters the right to elect a mayor, a city council, and an independent Board of Education. It also outlined the powers afforded to the D.C. Council and the retention of Congress's constitutional authority to legislate within the District. This retention of constitutional authority is recognized in the Home Rule Act and the D.C. Code, which states § 1-206.01 Retention of constitutional authority. Notwithstanding any other provision of this chapter, the Congress of the United States reserves the right, at any time, to exercise its constitutional authority as legislature for the District, by enacting legislation for the District on any subject, whether within or without the scope of legislative power granted to the council by this chapter, including legislation to amend or repeal any law in force in the District prior to or after enactment of this chapter and any act passed by the city council. The proposed Education Reform Act contemplates two concurrent avenues for achieving a proposed restructuring of the District of Columbia public school system: (1) passage of legislation by the city council, and (2) congressional amendment of the Home Rule Act. The majority of the reorganization proposal could be implemented by the city council acting under its delegated authority to reorganize agencies of the District of Columbia. However, the Education Reform Act also contemplates that the Congress would pass legislation amending two provisions of the Home Rule Act: (1) the authorizing language for the D.C. School Board, and (2) restrictions on the budgetary authority of the city council and mayor over the D.C. schools. To the extent that Congress sought to legislate beyond the two issues contemplated in the proposed Education Reform Act, it could pass legislation implementing any or all other aspects of the proposed act itself. This report does not address the issue of whether that portion of the Education Reform Act which currently contemplates action by Congress to implement could be achieved by the city council acting alone. For a discussion of that question, please see CRS Report RL33912, District of Columbia School Reform Proposal: Authority of the D.C. Council To Implement , by [author name scrubbed]. Instead of seeking passage of the Education Reform Act, the mayor could seek a congressional sponsor to introduce legislation that would amend the city's home rule charter. The procedure for such legislation would be as follows. A proposal originating in Congress to implement the Education Reform Act would not necessarily result in an expedited process. The controversial nature of the proposal could subject it to the regular legislative process, including hearings, markups, committee reports, House and Senate votes, and a conference agreement. The approved proposal could look significantly different from the proposal introduced on behalf of the mayor. Congress has initiated efforts to implement education reform previously. In 1995, Congress amended the home rule charter when it passed the District of Columbia School Reform Act, which was included as Title II of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, P.L. 104-134 . Title II authorized the creation of public charter schools in the District. In 2004, Congress considered and passed legislation amending the home rule charter when it included the DC School Choice Incentive Act of 2003 in the Consolidated Appropriations Act of 2004, P.L. 108-199 . The DC School Choice Incentive Act created the private school voucher program. It should be noted that both of these programs were included as titles in District of Columbia appropriations acts. Although the city council may possess the authority to substantially reorganize public education in the District on its own, and Congress may also pass legislation without mayoral or city council review or approval, it is worth noting that the District's home rule charter includes provisions that would allow elements of the proposal that would amendment the District's home rule charter to be subject to a referendum vote. The Education Reform Act does not contemplate the use of the referendum process to ratify the proposed changes to the home rule charter. During community meetings held throughout the city to explain the proposal, a number of District residents voiced concern that the proposal was not being put to a referendum vote. Table 2, Charter Amendment by Referendum, outlines the legislative process to be followed when seeking to amend the Home Rule Act by referendum. This process would require the approval of the city council, ratification by the voters, and congressional review. The mayor's Education Reform Act does not contemplate the use of the referendum process. If the charter amendment by referendum process was used, the Home Rule Act would require city council and voter approval of the proposal and would allow a period for congressional review and consideration. Congress would have four options: It could pass a resolution of disapproval within 35 legislative days of the Board of Election and Ethics certifying that the proposed charter amendment had been approved by a majority of the voting electorate. Such a resolution would have the effect of voiding the outcome of the referendum and could be considered by some observers as an affront to home rule, while others could point out that it is within Congress's constitutional authority. It might do nothing, allowing the 35 legislative days to pass. By its inaction, Congress would allow the outcome of the referendum to take effect. It could pass legislation waiving the 35 legislative days review period, thus expediting the effective date of the charter amendment. Congress passed such a waiver in 2000, after voters approved, by referendum, an amendment to the home rule charter governing the composition of the Board of Education. It could use the appropriations process to demonstrate its opposition to measures approved by the city council and the citizens of the District if it were unable to pass a resolution of disapproval during the 35-day congressional review period. For instance, Congress has included in general provisions sections of past District of Columbia appropriation acts language preventing the District from implementing a voter-approved medical marijuana initiative.

On January 5, 2007, the newly elected mayor of the District of Columbia, Adrian Fenty, released his legislative proposal to transfer administrative and budgetary control of the District's public schools from the Board of Education to the Office of the Mayor. Under the proposed Education Reform Act, the city council would reorganize the city's authority over the schools, while calling on Congress to amend provisions of the Home Rule Act relating to the District of Columbia School Board structure and to restrictions on the school budget authority. To the extent that Congress sought to legislate beyond these two issues, it could pass legislation implementing any or all other aspects of the proposed act itself. This report will examine that option.

Educational organizations qualify for tax-exempt status as entities described in Section 501(c)(3) of the Internal Revenue Code (IRC). Benefits that arise from 501(c)(3) status include exemption from federal income taxes and eligibility to receive tax-deductible contributions. One criterion for 501(c)(3) status is that the organization's activities must be primarily for at least one tax-exempt purpose—for example, charitable, religious, or educational. When it comes to having an "educational" purpose, questions often arise about the scope of the term's definition. Can a group espousing a viewpoint be characterized as educational? If so, does it have to provide factual information to support its statements? Relatedly, is there some standard for truthfulness and accuracy? This report discusses the legal definition of the term "educational," as well as the constitutional implications of that definition. There is no statutory definition of the term "educational" in the IRC. Rather, the term is defined by a Treasury regulation. It defines "educational" to encompass both (1) individual instruction "for the purpose of improving or developing his capabilities," and (2) "[t]he instruction of the public on subjects useful to the individual and beneficial to the community." The regulation goes on to address the heart of the matter about the term's scope: An organization may be educational even though it advocates a particular position or viewpoint so long as it presents a sufficiently full and fair exposition of the pertinent facts as to permit an individual or the public to form an independent opinion or conclusion. On the other hand, an organization is not educational if its principal function is the mere presentation of unsupported opinion. The regulation also provides examples of educational organizations, including schools of every educational level; groups that hold public forums and lectures; and museums and zoos. In 1986, the Internal Revenue Service (IRS) developed the "methodology test" to supplement the regulation's "full and fair exposition" standard. The test assists in determining whether the method used by an organization to communicate a particular viewpoint or position is educational. Under the test, a method is not educational if it fails to provide a "factual foundation" for the position or viewpoint or "a development from the relevant facts that would materially aid a listener or reader in a learning process." The IRS has identified four factors that lead to the conclusion the method is not educational: a significant portion of the group's communications consists of the presentation of viewpoints or positions that are unsupported by facts; facts that purport to support the viewpoints or positions are distorted; the group's presentations make substantial use of inflammatory and disparaging terms and express conclusions based more on strong emotional feelings rather than objective evaluation; and the presentation's approach is not aimed at developing the audience's understanding of the subject matter because it does not consider their background or training. Absent exceptional circumstances, the presence of any one of these factors indicates the organization's method of communicating its views does not meet the criteria to be "educational." There is relatively little case law or IRS rulings on the "full and fair exposition" test. A group advocating for the use of alternative schools was found to have met the test when it (1) made publicly available copies of all the briefs, including those of the opposing parties, filed in relevant legal actions; (2) encouraged those with different viewpoints to submit articles to its newsletter; and (3) provided information on a subject that was useful and beneficial to the public. A group that advocated for the use of one method of childbirth was found to have met the standard when it carried out its purpose by (1) hosting film presentations followed by discussions with doctors and its members; (2) conducting presentations on local radio stations; (3) hosting meetings between medical professionals and expectant parents; and (4) preparing pamphlets, manuals, and books that it distributed to libraries, hospitals, and obstetricians. Similarly, a group that was formed to "educate the public about homosexuality in order to foster an understanding and tolerance of homosexuals and their problems" was found to be educational. The group hosted public seminars, forums, and discussion groups, as well as distributed materials that included copies of surveys and opinion polls; scholarly statements; government publications; and policy resolutions adopted by educational, medical, scientific, and religious organizations. The group was described as "accumulat[ing] factual information through the use of opinion polls and independently compiled statistical data from research groups and clinical organizations," and all of its materials contained "a full documentation of the facts" to support its conclusions. In ruling that the group qualified as educational, the IRS explained: The presentation of seminars, forums, and discussion groups is a recognized method of educating the public.... By disseminating information relating to the role of homosexuals in society, the organization is furthering educational purposes by instructing the public on subjects useful to the individual and beneficial to the community. The method used by the organization in disseminating materials is designed to present a full and fair exposition of the facts to enable the public to form an independent opinion or conclusion. The fact that the organization's materials concern possibly controversial topics relating to homosexuality does not bar exemption under section 501(c)(3) of the Code, so long as the organization adheres to the educational methodology guidelines of section 1.501(c)(3)-1(d)(3). It also appears that a group that presents information prepared by others may qualify to be educational if it subjects those others to the full and fair exposition test. On the other hand, in seemingly the only case applying the methodology test, the Tax Court held that a group purportedly "dedicated to advancing American freedom, American democracy and American nationalism" did not qualify as educational when its newsletters were filled with inflammatory language and unsupported conclusions. The court found the newsletters failed the first, third, and fourth factors in the methodology test. They failed the first factor because a significant portion presented viewpoints that were clearly not supported by facts. These included the "common sense" standards for Supreme Court Justices of "No odd or foreign name" and "No beard"; listing of "Boat people, wetbacks and aliens who are incompatible with American nationality and character, such as Nicaraguan refugees or Refusnik immigrants" as people who should be denied U.S. Citizenship; and the statement regarding Black History Month that "No such thing. Nary a wheel, building or useful tool ever emanated from non-white Africa. Africanization aims to set up a tyranny of minorities over Americans." The court had no trouble finding the third factor was met, as the newsletters were filled with inflammatory and disparaging terms for gays and African Americans, among others. Finally, the court found that the fourth factor was met because a significant portion of the newsletters' intended readership were young people who would likely have little knowledge about the historical events presented in the newsletters, and the newsletters' negative treatment of these events would not assist in the readers' understanding of them. An example of an organization that failed to meet the "full and fair exposition" standard was one formed to "promote the education of the public on patriotic, political, and civic matters, and to inform and alert the American citizenry to the dangers of an extreme political doctrine." The group distributed written materials (e.g., books, pamphlets, and newsletters) and operated a speakers' bureau. The materials included substantial data about the doctrine's activities. The problem was they also included many allegations and charges that certain individuals and institutions are of questionable national loyalty. Such charges are primarily developed by the use of disparaging terms, insinuations, and innuendoes and the suggested implications to be drawn from incomplete facts. For instance, the organization bases many of its conclusions on incomplete listings of an individual's organizational affiliations without stating the extent or the nature of the affiliations or attempting to present a full and fair exposition of the pertinent facts about those organizations. The IRS ruled that these types of activities were a substantial part of the organization's overall activities, and therefore the group failed to be classified as educational. Similarly, a white supremacist group was held not to meet the criteria to be an educational organization. The court in this case did not base its holding on the regulation, but rather found there was simply no way in which the organization's materials could fall within the term "educational" as Congress intended. Important to the court was that there was "no reasoned development" from the purported facts presented in the organization's publications (e.g., the occurrence of violent acts by African Americans or the presence of Jews in important positions) to the positions it advocated (e.g., removing these groups from society), and therefore the publications "cannot reasonably be considered intellectual exposition." There are constitutional implications as to how the term "educational" is defined. In particular, the denial of tax-exempt status to an organization on the basis of its speech could raise issues under the First Amendment. On the one hand, the Supreme Court has made clear that the government may choose to not subsidize taxpayers' speech through the provision of a tax incentive. Thus, there appears to be no constitutional requirement that the term "educational" encompass every communication protected by the First Amendment. At the same time, courts will examine the IRS's denial of a tax exemption or other benefit when it is based on the content of the taxpayer's speech in order to ensure the denial was not done for an impermissible reason. Groups that promote controversial positions may be particularly vulnerable to an interpretation of "educational" that permits a subjective determination by the IRS as to whether a group's methods of presenting its views are educational. As one court has explained in this context, "the government must shun being the arbiter of 'truth.'" The IRS recognizes the potential issues here, emphasizing that "[i]t has been, and it remains, the policy of the Service to maintain a position of disinterested neutrality with respect to the beliefs advocated by an organization." The government reportedly believes the methodology test "leads to the minimum of official inquiry into, and hence potential censorship of, the content of expression, because it focuses on the method of presentation rather than the ideas presented" and is therefore "the least intrusive standard available." On the other hand, some have questioned if the methodology test can be fairly categorized as objective or content neutral when it requires looking into such things as whether the organization uses "particularly inflammatory" language or distorts facts. Concern over these issues has led to questions about whether the "educational" standard is unconstitutionally vague. Not only does a vague law that affects First Amendment rights "inhibit the exercise of those freedoms," but vagueness may also lead to arbitrary and discriminatory application of the law in violation of the Fifth Amendment's due process protections. In Big Mama Rag, Inc. v. United States , the D.C. Circuit Court of Appeals held that the definition of "educational" in the Treasury regulation was unconstitutionally vague. Note that this case predates the methodology test. The court found that it was not clear which organizations were subject to the "full and fair exposition" test and what the standard required. For example, the court found the distinction between facts and opinions to be "not so clear-cut" that the organization or the IRS "will be able to judge when any given statement must be bolstered by another supporting statement." The same court had the opportunity to look at the regulation several years later in National Alliance v. United States , where it held that a white supremacist group did not meet the criteria to be an educational organization. Notably, the court did not decide the case based on the regulation or methodology test. Rather, as discussed above, the court's holding was based on its determination that there was simply no way in which the organization's materials could fall within the term "educational" as Congress intended. The court did state in dicta that the IRS's methodology test reduced the vagueness concerns by tending to limit the meaning of "educational" to "material which substantially helps a reader or listener in a learning process." The court noted with approval that the "IRS has attempted to test the method by which the advocate proceeds from the premises he furnishes to the conclusion he advocates rather than the truth or accuracy or general acceptance of the conclusion." While the court did not overrule Big Mama Rag , its decision in National Alliance is commonly understood to represent the court moving away from its reasoning in that case. As a result, the court's approval of the methodology test, while in dicta, is often seen as reducing any precedential value of Big Mama Rag . It appears the only court to address the vagueness issue since National Alliance is the Tax Court. In Nationalist Movement v. Commissioner , the court rejected the argument that the methodology test was overly vague. The court found the test was "sufficiently understandable, specific, and objective both to preclude chilling of expression protected under the First Amendment and to minimize arbitrary or discriminatory application by the IRS." Further, the court did not find the test's purpose or effect to be the suppression of "disfavored ideas." Other cases, both prior to and after Big Mama Rag/National Alliance , have involved application of the regulation, without addressing the issue of its constitutionality.

Concern is sometimes expressed that certain entities which qualify for tax-exempt 501(c)(3) status as "educational" organizations have abused their exemption by advocating a policy viewpoint. The argument is that these entities should have to present information on both sides of an issue equally and neutrally, without opinion. The term "educational" is not defined in the Internal Revenue Code (IRC). It is defined by regulation to encompass individual instruction, as well as public instruction "on subjects useful to the individual and beneficial to the community." The question here is how far can the term "educational" be extended? Can a group espousing a viewpoint (i.e., only one side of an issue) be characterized as educational? If so, does the group have to provide factual information to support its statements? Is there some standard for truthfulness and accuracy? The answers are rooted in a Treasury regulation, which provides that an organization that advocates a position or viewpoint can qualify as educational if it presents "a sufficiently full and fair exposition of the pertinent facts" so that people can form their own opinions or conclusions. To supplement the regulation's "full and fair exposition" standard, the Internal Revenue Service (IRS) has developed the "methodology test." Under it, a method is not "educational" if it fails to provide a "factual foundation" for the position or viewpoint or "a development from the relevant facts that would materially aid a listener or reader in a learning process." There are constitutional implications in how the term "educational" is defined. In particular, the denial of tax-exempt status on the basis of an organization's speech could raise issues under the First Amendment. While there is no constitutional requirement that the term "educational" encompass every communication protected by the First Amendment, courts will examine the IRS's denial of a tax exemption or other benefit when it is based on the content of the taxpayer's speech in order to ensure the denial was not done for an impermissible reason. Groups that promote controversial positions may be particularly vulnerable to an interpretation of "educational" that permits a subjective determination by the IRS as to whether a group's methods of presenting its views are educational. Concern over these issues has led to questions about whether the "educational" standard is unconstitutionally vague. While the IRS's methodology test was held to be unconstitutionally vague by a federal appellate court, subsequent court decisions have suggested that the test passes constitutional muster.

This report addresses the authority of the District of Columbia Council to implement a proposed reorganization of the District of Columbia Board of Education. Specifically, the report addresses the authority of the Council to implement the proposed District of Columbia Public Education Reform Amendment Act of 2007 (hereinafter Education Reform Bill), a bill currently being considered by the Council. In addition, the report considers to what extent Congress would be required to legislate to implement this reorganization. The Education Reform Bill is a comprehensive proposal to change the governing structure of the District of Columbia school system and to delegate significant authority over the public schools to the mayor. It involves extensive revision of the D.C. Code, including parts of the District of Columbia Home Rule Act (Home Rule Act). Although the Home Rule Act provides the D.C. Council with extensive legislative authority, it also includes certain limitations. Consequently, the question arises as to whether these limitations would apply to the Education Reform Bill, necessitating congressional action to implement the bill. The Home Rule Act provides the D.C. Council with broad power over District affairs, in that "the legislative power of the District shall extend to all rightful subjects of legislation within the District consistent with the Constitution of the United States and the provisions of this chapter...." However, this power is subject to a variety of limitations, and Congress retains ultimate authority to legislate in a way that may limit this power. One of the primary limitations is that the D.C. Council may not amend the Home Rule Act unless it is pursuant to a power granted elsewhere in that act. This limitation would appear to be the one most significant to the instant legislation. As passed by Congress, the Home Rule Act provided that the Districts of Columbia public schools were to be controlled by the District of Columbia Board of Education and that the board was to consist of members elected by the citizens of the District. The Education Reform Bill provides that the control of Board of Education over the District of Columbia public schools would be significantly limited. Thus, the question arises as to whether the District of Columbia Council has the authority to amend this portion of the Home Rule Act. The Home Rule Act does provide the Council with significant authority for governmental reorganization. Specifically, § 404(b) of the Home Rule Act provides that the Council shall have authority to create, abolish, or organize any office, agency, department, or instrumentality of the government of the District and to define the powers, duties, and responsibilities of any such office, agency, department, or instrumentality. The Education Reform Bill specifically notes this language as support for the reorganization of the public schools as a cabinet-level agency: Pursuant to section 404(b) of the District of Columbia Home Rule Act, approved December 24, 1973 [cite omitted] the agency now known as the District of Columbia Public Schools, and as D.C. Public Schools, is established as a separate cabinet-level agency, subordinate to the Mayor, to be known as the District of Columbia Public Schools. It should be noted that § 404(b) does not specifically grant the District of Columbia Council authority over the Board of Education, or over "boards" generally. The District of Columbia Board of Education, however, is characterized in the Home Rule Act as an "independent" agency. Thus, the question arises as to whether an independent agency in the District of Columbia is an "office, agency, department, or instrumentality of the government," and is thus amenable to such reorganization. The District of Columbia Board of Education was created by Congress in 1906, and its nine members were appointed by the judges of the Supreme Court of the District of Columbia. The Board of Education was given "control," including determination of general educational policy, appointment of teachers, and selection and supervision of the Superintendent. In 1968, Congress changed the method of selecting the Board of Education to election by District citizens; five years later, the Home Rule Act established the Board of Education as one of five independent agencies operating independently of the executive or legislative branches of the District government. Under the Home Rule Act, the Board of Education retained all authority previously granted to it by Congress, including "control of the public schools." More recently, however, the Board of Education has undergone significant reorganization. In 2000, the D.C. Council passed the School Governance Charter Amendment Act of 2000. This Act authorized a referendum in the District of Columbia as to whether to change the current size and authority of the Board of Education by amending the District of Columbia Home Rule Act. The referendum was authorized under the Charter amendment process, an alternative to directly amending the Home Rule Act, which authorizes the Council to provide for referendums to amend any part of Title IV of the Home Rule Act, such as the organization of the Board of Education. The power to amend the Home Rule Act by referendum is subject to the same limitations as the power of the D.C. Council. It should also be noted that although Congress did pass legislation regarding the School Governance Charter Amendment Act of 2000, the legislation merely addressed the implementation date and did not purport to authorize the reorganization. Thus, with the tacit approval of Congress, the current procedures used to elect and appoint the Board of Education follow the referendum-adopted School Governance Charter Amendment Act of 2000, not the original procedure set out in the Home Rule Act. Thus, to the extent that the current reorganization of the Board of Education is legally valid, it would appear that future reorganizations, such as under the Education Reform Bill, would also be valid. Although there does not appear to be case law addressing the issue of whether the D.C. Council has the authority to reorganize the Board of Education under § 404(b) of the Home Rule Act, there is related case law that may be relevant to this discussion. In Shook v. District of Columbia Financial Responsibility and Management Assistance Authority , the United States Court of Appeals for the District of Columbia considered whether the District of Columbia Financial Responsibility and Management Assistance Authority (the Control Board), which temporarily controlled the governance of the District of Columbia, had the authority to significantly reduce the authority of the Board of Education. In 1995, Congress found that the District government was in the midst of a "fiscal emergency." In response, it passed the District of Columbia Financial Responsibility and Management Assistance Act of 1995 (FRMAA), which established a five-member Control Board with wide-ranging powers to improve the District government's operations. In 1996, Congress amended the Act so that the Control Board could issue such orders, rules, or regulations as it considers appropriate to carry out the purposes of this Act and the amendments made by this Act, to the extent that the issuance of such an order, rule, or regulation is within the authority of the Mayor or the head of any department or agency of the District government, and any such order, rule, or regulation shall be legally binding to the same extent as if issued by the Mayor or the head of any such department or agency. Under this section, the Control Board issued an order reorganizing administration of the District's public schools. They established a nine-member Emergency Transitional Education Board of Trustees to assume responsibility for the operation and management of the District of Columbia public school system, and delegated "all the authority, powers, functions, duties, responsibilities, exemptions, and immunities of the Board of Education." The Board of Education was left with the authority only to license charter schools and to provide advice to the Board of Trustees, although its President was made a member of the Board of Trustees. This order by the Control Board was challenged by school board members, who argued, among other things, that the Board's power to issue "legally binding" orders "to the same extent as if issued by the Mayor or the head of any such department or agency" did not apply to the Board of Education, because the Board was designated under the Home Rule Act as an "independent" agency. Just as the question can be posed whether the D.C. Council's authority to "create, abolish, or organize" any "agency" includes the Board of Education, so the question was posed whether the Control Board's power over agencies extended to the Board. Thus, the resolution of the Shook case may inform the instant question. In the Shook case, the school board members noted that in other places in the FRMAA, Congress differentiated between agencies and independent agencies. The Control Board, on the other hand, argued that the plain meaning of "any agency" would include "any independent agency," because the greater includes the lesser. The Control Board also noted places in FRMAA, such as provisions regarding the D.C. budget, where the single word "agency" was understood to include the Board of Education. The D.C. Circuit, in turn, noted that the preamble to the FRMAA suggested a broader interpretation of the term "agency," as it included a finding that "the District of Columbia government fails to provide its citizens with effective and efficient services in areas such as education." Finally, the court noted that the legislative history did not indicate that Congress intended to exclude independent agencies, like the Board of Education, from the Control Boards' power under the Act. Ultimately, the court concluded that the term "agency," as used in the relevant portion of the FRMAA, should include independent agencies. Although this statutory interpretation was done in the context of the FRMAA, not the Home Rule Act, there are certain parallels to the instant question. For instance, as with FRMAA, the Home Rule Act uses the term "agency" in other places, such as in provisions regarding the budget, and the term in those places appears to include independent agencies. Further, there is no indication in the Home Rule Act that the term "agency" does not include "independent agencies," and some indication that such distinctions as do occur between independent agencies and other agencies would be made by using other terminology. Finally, the term "agency" is used in other places in the District of Columbia Code to include independent agencies. In some ways, a Council argument that the Board of Education is amenable to its power may be even stronger than it was for the Control Board. Although the Control Board's power was limited to "department[s] or agenc[ies]," the D.C. Council's power extends to any "office, agency, department, or instrumentality of the government," which appears to be a broad and potentially comprehensive phrase. Further, the legislative history for the Home Rule Act appears to specifically consider independent agencies as amenable to the authority of the District of Columbia Council. The Senate Report for the Home Rule Act provides that [t]he functions now vested in the District Public Service Commission, Zoning Commission, Zoning Advisory Council, Board of Zoning Adjustment, Office of the Recorder of Deeds, and Armory Board may be transferred to the new Council; however, these boards and commission shall continue to function until such time as the Council shall make such changes in function as it deems appropriate. Thus, three of the five independent agencies established by the Home Rule Act (the Public Service Commission, the Zoning Commission, and the Armory Board) were specifically noted as agencies that the D.C. Council would have reorganization authority over. Why the Board of Education, already in existence at the time of the Home Rule Act, and the Election Board are not mentioned in this sentence is not clear. There does not, however, appear to be an obvious distinction between the Board of Education and these other independent entities so as to suggest that Congress intended to exclude the Board of Education from this Council authority. There does appear, however, to be a provision of the Education Reform Bill that may require congressional action. Title II of the Education Reform Bill provides for the amendment of the budget authority for the District of Columbia schools. Specifically, it would amend the provision of the Home Rule Act that provides the following: Role of Mayor and Council.—With respect to the annual budget for the Board of Education in the District of Columbia, the Mayor and the Council may establish the maximum amount of funds which will be allocated to the Board, but may not specify the purposes for which such funds may be expended or the amount of such funds which may be expended for the various programs under the jurisdiction of the Board of Education.... As noted above, the D.C. Council has been granted the power to reorganize independent agencies, arguably including the Board of Education. So the question arises as to whether the apparent disability imposed on the Council (and the mayor) to direct how Board of Education funds are used could be evaded by such reorganization, or whether, as contemplated by the Education Reform Bill, the above disability must be removed by Congress. One might make the argument that the D.C. Council could limit the powers of the Board of Education, while still submitting a separate budget request for that entity. Under this theory, as long as the Council did not specify how the funds allocated to the newly organized Board of Education were spent, then the proposed reorganization could go forward without Congress removing the budgetary restrictions imposed on the Council (and the mayor). There is, however, a further provision of the Home Rule Act that implies that this budgetary restriction could not be evaded at the same time that the day-to-day supervision of the individual public schools is delegated to an entity besides the School Board. This provision provides that [t]he [Board of Education budget] plan submitted under this subsection shall include a detailed presentation of how much money will be allocated to each school, including—(A) A specific description of the amount of funds available to the school for which spending decisions are under the control of the school; and (B) A specific description of other responsibility center funds which will be spent in a manner directly benefitting the school, including funds which will be spent for personnel, equipment and supplies, property maintenance, and student services. This quoted language would indicate that the Congress clearly intended that neither the D.C. Council nor the mayor would have the authority to direct the allocation of funds to individual public schools. As noted earlier, the Council's authority to reorganize agencies would appear to apply even to entities that were established under the Home Rule, such as the School Board. However, because Congress has imposed a specific disability on the D.C. Council's ability to direct how funds are to be allocated among the different schools, this language appears to be an exception to those powers to reorganize. Further, it is unlikely that the Council could delegate such authority to the mayor, because he is similarly precluded by the quoted language from allocating these funds. In conclusion, it would appear likely that the D.C. Council has sufficient authority to "create, abolish, or organize" or "define the powers, duties, and responsibilities" of independent "agencies," including the Board of Education. However, the Council may not have the necessary budgetary authority to allocate funds to individual schools, nor may it delegate such authority to the mayor. Thus, although it would appear that the Council could engage in significant reorganization of the Board under the Education Reform Bill, congressional implementation would appear to be needed to address the public schools budget restrictions provided for under the Home Rule Act.

This report addresses the authority of the District of Columbia Council to implement a proposed reorganization of the District of Columbia Board of Education. Specifically, the report addresses the authority of the Council to implement the proposed District of Columbia Public Education Reform Amendment Act of 2007, a bill currently being considered by Council. The proposed Act would involve extensive revision of the D.C. Code, including parts of the District of Columbia Home Rule Act. In addition, the report considers to what extent Congress would be required to legislate to implement this reorganization. It would appear likely that the D.C. Council has sufficient authority to reorganize an independent agency such as the Board of Education, including defining the Board's powers, duties, and responsibilities. However, the Council may not have the necessary budgetary authority to allocate funds to individual schools, nor may it delegate such authority to the mayor. Thus, although it would appear that the Council could engage in significant reorganization of the Board under the proposed bill, congressional implementation would appear to be needed to address the public school budget restrictions provided for under the Home Rule Act.

In the 111 th Congress, H.R. 2499 , introduced by Representative Pedro Pierluisi, would have established procedures to determine Puerto Rico's political status. It would have authorized a two-stage plebiscite in Puerto Rico to reconsider the status issue. H.R. 2499 was similar to H.R. 900 as introduced in the 110 th Congress. A possible outcome of this process is Puerto Rican statehood. If Puerto Rico's citizens vote in favor of statehood in the series of plebiscites as outlined in H.R. 2499 , then Puerto Rico would, most likely, be entitled to five Representatives in the House of Representatives as well as two United States Senators. If the size of the House remains fixed at the legally mandated 435-seat limit, then five states would likely have one fewer Representative than they would have had if Puerto Rico had not become a state. Another option that the House could choose, given the entrance of another state, is to increase the size of the House. General congressional practice when admitting new states to the union has been to increase the size of the House, either permanently or temporarily, to accommodate the new states. New states usually resulted in additions to the size of the House in the 19 th and early 20 th centuries. The exceptions to this general rule occurred when states were formed from other states (Maine, Kentucky, and West Virginia). These states' Representatives came from the allocations of Representatives of the states from which the new ones had been formed. When Alaska and Hawaii were admitted in 1959 and 1960 the House size was temporarily increased to 437. This modern precedent differed from the state admission acts passed following the censuses in the 19 th and early 20 th centuries, which provided that new states' representation would be added to the apportionment totals. Table 1 lists the number of seats each state has received after each census, and the notes show the initial seat assignments to states admitted between censuses. The apportionment act of 1911 anticipated the admission of Arizona and New Mexico by providing for an increase in the House size from 433 to 435 if the states were admitted. And, as noted above, the House size was temporarily increased to 437 to accommodate Alaska and Hawaii in 1960. In 1961, when the President reported the 1960 census results and the resulting reapportionment of seats in the reestablished 435-seat House, Alaska was entitled to one seat, and Hawaii two seats. Massachusetts, Pennsylvania, and Missouri each received one less seat than they would have if the House size had been increased to 438 (as was proposed by H.R. 10264, in 1962). If Puerto Rico were admitted to statehood between censuses, Congress would have at least three options for handling the five Representatives the new state would be entitled to under the current apportionment formula using the 2010 apportionment figures: (1) subtract seats from states that would have lost them if Puerto Rico had been admitted before the previous census; (2) temporarily increase the size of the House until the next census; or (3) permanently increase the size of the House. The first option, subtracting seats from other states, has only been done by Congress when new states were formed from existing states. If Puerto Rico were to be given statehood after 2012, then this would require the losing states to redraw the new, 2012 district boundaries in their states to account for these losses. The second option, temporarily increasing the House size, has only been done once, in the Alaska and Hawaii precedent. The third option, permanently increasing the House size (probably to 440), was the procedure commonly used in the 19 th and early 20 th centuries. What would the apportionment of the House of Representatives look like if Puerto Rico were to become the 51 st state? The most recent population figures for the states are from the 2010 Census and are displayed in Table 2 , below. One complicating factor concerns the overseas military and federal employees and their dependents. The state figures used in apportioning seats in the House of Representatives are based on the sum of the each state's resident population and the number of persons included in the overseas military and federal employees and their dependents who designate the state as their state of residency (i.e., where they would return to when their tour of duty was completed). The total figure for this number in the 2010 apportionment process was 1,039,648 for all 50 states. However, as Puerto Rico was not a state and was not apportioned seats based on its population, no figure for the overseas population for Puerto Rico was produced. Consequently, only the total 2010 resident population for Puerto Rico is used in Table 2 . Table 2 shows two comparisons. First, the 2010 apportionment of the House of Representatives is shown both without and with Puerto Rico's resident population included. As can be seen, when Puerto Rico is included as the 51 st state, it is allocated five seats in the House of Representatives. Without Puerto Rican statehood, California, Florida, Minnesota, Texas, and Washington would have been allocated the last five seats rather than Puerto Rico. It is fairly clear that with a population of almost 4 million people, Puerto Rico's statehood would have an impact on the apportionment process unless the size of the House is increased. The second comparison, and the more involved, is between the current allocation of seats based on the 2000 Census population and the allocation of the 2012 seats based on the, just released, 2010 apportionment population figures. Examining the "winners" and "losers" with respect to the change between 2000 and 2010, several points are worth noting. First, Arizona, Georgia, Nevada, South Carolina and Utah will all gain a seat relative to the current allocation, regardless of the statehood status of Puerto Rico. Second, Florida will gain two seats relative to its current status, but if Puerto Rico became a state Florida would only gain one seat. Similarly, Texas will gain four seats relative to its current status, but would only gain three seats if Puerto Rico were to become a state. Third, Washington will gain a seat relative to its current status, but if Puerto Rico were to become a state, Washington remains at its 2000 allocation of House seats. Fourth, Illinois, Iowa, Louisiana, Massachusetts, Michigan, Missouri, New Jersey, and Pennsylvania will each lose a seat relative to their current allocation of House seats, regardless of the status of Puerto Rico. Similarly, New York and Ohio will each lose two seats relative to their current allocation, regardless of the status of Puerto Rico. Fifth, California and Minnesota will lose a seat if Puerto Rico were to become a state, but will retain the same number of seats relative to its current allocation of House seats if Puerto Rico does not become a state. The strong 20 th century tradition that the total number of Representatives in the House of Representatives should total 435 Members might prevent an increase in the House size should Puerto Rico be admitted to statehood. The U.S. Constitution (Article I, Section 2) requires that "Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state." The requirement that districts must be apportioned among states means that district boundaries cannot cross state lines. The Constitution also sets a minimum size for the House of Representatives (one Representative for every state) and a maximum size for the House (one Representative for every 30,000 persons). Congress is free to choose a House size within these parameters by changing the relevant law. Thus, the House size of 435 may be altered by changing statutory law rather than by enacting a constitutional amendment. Based on the 2010 apportionment population of 309,183,463 from Table 2 above, the House could be as large as 10,306 Representatives (based on the constitutional maximum of one Representative for every 30,000 persons). Statehood for Puerto Rico would raise the maximum to 10,430 Members. The House size was increased in every decade except one in the 19 th century to accommodate the growth of the country's population, but the permanent increases stopped after the 1910 census, when the House reached 435 Members. As noted previously, the House size was increased temporarily to 437 in 1960, to accommodate the admission of Alaska and Hawaii as states, but the total went back to 435 in 1963, with the new reapportionment following the 1960 census. Although one cannot say for sure why the House size has not been permanently increased since the 1910 census, the arguments most often raised center on efficiency and cost. Proponents of the status quo suggest that a larger House would work less efficiently and at greater cost, due to Member and staff salaries and allowances. Proponents of increasing the House size often argue that other legislative bodies seem to work well with larger memberships, and less populous districts might give minorities greater representation in Congress. Since 1940, the average population of a congressional district has more than doubled (from 303,827 in 1940 to 710,767 in 2010).

For years, the people of the Commonwealth of Puerto Rico have been involved in discussions relating to changing the political status of Puerto Rico from a commonwealth of the United States to either the 51st state or an independent nation, or maintaining the status quo as a commonwealth. In the 111th Congress, H.R. 2499, introduced by Representative Pedro Pierluisi, would have established procedures to determine Puerto Rico's political status. It would have authorized a two-stage plebiscite in Puerto Rico to reconsider the status issue. H.R. 2499 was similar to H.R. 900 as introduced in the 110th Congress. A possible outcome of this process is Puerto Rican statehood. Proposals to change Puerto Rico's governmental relationship with the United States from a commonwealth to some other model raise many political, social, and economic issues. This report focuses exclusively on what impact adding a new state that is more populous than 22 of the existing 50 states would have on representation in the House of Representatives. Statehood for Puerto Rico would likely cause Congress to explore whether the current limit of 435 seats in the House of Representatives should be changed. If Puerto Rico had been a state when the 2010 census was taken, it would have been entitled to five Representatives based on its 2010 census population of 3.7 million residents. If the House were faced with the addition of five new Representatives, it could accommodate them either by expanding the size of the House or adhering to the current 435-seat statutory limit, which would reduce the number of Representatives in other states.

It takes an average of 15 years from the moment a manufacturer first approaches the Food and Drug Administration (FDA) with an idea for a new drug to its final approval for marketing. Steps in the development and approval of a drug or biologic (e.g., a vaccine) involve actions by both the manufacturer and FDA. First, a manufacturer (sometimes referred to as the sponsor) submits to FDA an Investigational New Drug (IND) application for permission to conduct clinical studies in humans. Second, the manufacturer completes Phase I, II, and III clinical trials to establish that a product is safe and effective for a specific purpose and population. Third, the manufacturer submits to FDA a New Drug Application or a Biologics Licensing Application (noted as NDA/BLA throughout this report) for permission to market the product. Fourth, FDA reviews the NDA/BLA for evidence of safety and effectiveness, a process that sometimes includes requests to the sponsor for additional information, the sponsor's response, and further FDA review. Finally, FDA decides whether to approve the application. For drugs and biologics that address unmet needs or serious diseases or conditions, FDA regularly uses three formal mechanisms to expedite the development and review process: Fast Track product development, Priority Review, and Accelerated Approval. This report briefly describes (in text and in Table 1 ) those mechanisms, including their intended effects and statutory and regulatory bases, and examines whether Fast Track accomplishes two goals: making approval more likely and shortening approval time. For the treatment of a serious or life-threatening illness, FDA regulations, promulgated in 1992, allow "accelerated approval" of a drug or biologic product that provides a "meaningful therapeutic benefit ... over existing treatments." The rule covers two situations. The first allows approval to be based on clinical trials that, rather than using standard outcome measures such as survival or disease progression, use "a surrogate endpoint that is reasonably likely ... to predict clinical benefit." The second situation addresses drugs whose use could be deemed safe and effective only under set restrictions that could include limited prescribing or dispensing. FDA usually requires postmarketing studies of products approved this way. Accelerated Approval involves different concerns than do the other programs designed to speed the normal process for important new products, and therefore this paper will not discuss it further. The Food and Drug Administration Modernization Act of 1997 (FDAMA, P.L. 105-115 ) directed the Secretary to create a mechanism whereby FDA could designate as "Fast Track" certain products that met two criteria. First, the product must concern a serious or life-threatening condition; second, it has to have the potential to address an unmet medical need. Once FDA grants a Fast Track designation, it encourages the manufacturer to meet with the agency to discuss development plans and strategies before the formal submission of an NDA/BLA. The early interaction can help clarify elements of clinical study design and presentation whose absence at NDA/BLA submission could delay approval decisions. However, FDA makes similar interactions available to any sponsor who seeks FDA consultation throughout the stages of drug development. A unique option within Fast Track is the opportunity to submit sections of an NDA/BLA to FDA as they are ready, rather than the standard requirement to submit a complete application at one time. Unlike Fast Track or Accelerated Approval, the Priority Review process begins only when a manufacturer officially submits an NDA/BLA. Priority Review, therefore, does not alter the timing or content of steps taken in a drug's development or testing for safety and effectiveness. For products believed to address unmet needs, however, it shortens the average amount of time from completed application until approval decision from 10 months to 6 months. Although Priority Review is not explicitly required by law, FDA has established it in practice, and various statutes, such as the Prescription Drug User Fee Act (PDUFA), refer to and sometimes require it. Are products that receive Fast Track designation more likely to have their NDA/BLA approved by FDA than products that receive no such designation? The answer is we don't know, because, while FDA provides statistics on the products it designates as Fast Track, it does not make public information on the NDA/BLAs it receives unless and until the product is approved/licensed. What we do know from material on the FDA website: Manufacturers have requested Fast Track designation for 569 drugs and 195 biological products since the Fast Track program was set into law. FDA granted the designation to 74.5% of those drug requests and 63.6% of those biologics requests. Of products with Fast Track designation, FDA eventually approved 10.6% of the drugs and licensed 17.7% of the biologics. What that means is obscured by what we do not know: For what percentage of products with Fast Track designation do sponsors submit NDA/BLAs? How many NDA/BLAs submitted each year are for Fast Track products? With only the numerator (approved products), one cannot calculate the percentage of NDA/BLA submissions that are approved among Fast Track products. FDA receives approximately 100-130 applications a year, and has stated that "close to 80 percent of all filed applications will eventually be approved." The 10.6 and 17.7% figures for Fast Track are not a comparable statistic because they include the apparently large, but unquantified, number of product development attempts that manufacturers discontinue (for safety problems, lack of effectiveness, business decisions, competing projects). A useful analysis would account for the percentage of Fast Track and non-Fast Track products of which FDA is aware (e.g., that have INDs) that result in submitted NDA/BLAs. How long it takes from the time a sponsor applies for marketing permission to the moment FDA makes its decision varies greatly. The length matters to the sponsor and its stockholders, to potential consumers and healthcare providers, and to FDA. Two factors contribute to longer review times: review staff constraints at FDA, and the quality and completeness of applications when they are first submitted. PDUFA and its three reauthorizations have addressed the staffing issue by authorizing industry user fees to support FDA reviewers. FDA's Web pages on the use of its Fast Track and Priority Review programs provide the review times for successful applications. Table 2 compares the review times, by year and type of review procedure, for all 787 approved NDA/BLAs applications that were submitted from FY1998 through FY2006. These applications received either a Standard Review or a Priority Review , and the review times for these two procedures are summarized in the first two pairs of data columns in the table. The third pair of columns summarizes review times for approved NDA/BLA applications for products that received a Fast Track designation. As discussed below, most, though not all, of these 55 applications received a Priority Review and thus are counted in the Priority Review columns; the remainder are captured in the Standard Review data. The final pair of columns provide data on Priority Review times for NDAs of New Molecular Entities (NMEs) and New BLAs . These applications represent a subset of all those subject to Priority Review, and are the group of products most similar to Fast Track products. Each row of Table 2 corresponds to approved applications submitted during a specific year. The total approval time includes the time FDA spends to review an application, plus the time the sponsor takes to respond to questions, if necessary, plus the time FDA spends on any additional review. The table provides the median approval time for each submission year group, which is the value at the mid-point of times in a group. FDA uses the median in its reports, stating, "It provides a truer picture of our performance than average time, which can be unduly influenced by a few very long or short times." Fast Track submissions in theory differ from routine NDA/BLA submissions because they address unmet needs in the treatment of life-threatening or serious conditions. Similar criteria apply to drugs that FDA gives Priority Review status. In fact, 80% of Fast Track NDA approvals were also given Priority Review, as were all of the approved Fast Track BLAs. Again, FDA makes public detailed data only regarding the products that it approves/licenses. Using the data in Table 2 to determine the impact Fast Track designation has on approval time is complicated by limitations in the data available. These include the following: Inadequate data: Available FDA tables aggregate applications by year and present only the median approval time value for each year. This precludes using the individual application times in subsequent calculations. Missing data: Data available for analysis come from approved applications. Inclusion of numbers of applications and total time to review decision (approval or not) would allow examination of additional aspects of the Fast Track program that may provide advantages that do not affect total approval time. Unavailable documentation of decisions: Without detailed documentation of the many decisions embedded in the FDA summary tables, accuracy or consistency in assignment to year of submission rather than year of approval cannot be assessed. If an application is assigned to one year in the Fast Track column and to another in the All Priority column, for example, relying on the annual median approval times could distort the comparisons. Overlapping categories: The All Priority and All Standard groups sum to the total number of approved applications in each submission year. The other categories, however, overlap. By definition, the Priority NMEs and New BLAs category is a subset of the All Priority NDAs and BLAs. For the Fast Track NDAs, at least 87% are counted in the Priority NDA group and at least 68% are also counted in the Priority NME group. (FDA lists some Fast Track NME applications as assigned to Standard Review.) As expected, based on program goals, times are shorter for Priority Review than for Standard Review. For seven of the nine years, median Fast Track times were shorter than Priority Reviews, suggesting that Fast Track may have reduced time-to-market beyond the shortening of review time afforded by Priority Review. A more detailed analysis of individual application data might indicate how group differences may be due to obvious exceptions, different procedures or application completeness or quality, or unknown factors or chance. For example, how does the wide range of approval times—from 2.4 to 34.1 months—for the eight Fast Track product NDA/BLAs submitted in 2001 affect group averages? Finally, review time from submission to approval is only one measure of Fast Track effect. If a Fast Track designation enables a sponsor to submit a completed NDA/BLA sooner than it would otherwise, that advantage would not be evident in this comparison of review times that begins with submission.

By statutory requirements and by regulation, guidance, and practice, the Food and Drug Administration (FDA) works with several overlapping yet distinct programs to get to market quickly new drug and biological products that address unmet needs. FDA most frequently uses three mechanisms for that purpose: Accelerated Approval, Fast Track, and Priority Review. The first two affect the development process before a sponsor submits a marketing application. Accelerated Approval allows surrogate endpoints in trials to demonstrate effectiveness and is relevant in fewer situations than the others. The Fast Track program encourages a sponsor to consult with FDA while developing a product. Unlike the others, Priority Review involves no discussions of study design or procedure; it relates only to an application's place in the review queue. Analysis of total approval time for approved applications under the Fast Track and Priority Review programs shows that for seven of the past nine years, Fast Track products have shorter median approval times than do all those applications assigned to Priority Review.

A major goal of Customs is to prevent the smuggling of drugs into the country by attempting to create an effective drug interdiction, intelligence, and investigation capability that disrupts and dismantles smuggling organizations. Although Customs inspectors have the option to conduct examinations of all persons, cargo, and conveyances entering the country, the inspectors may selectively identify for a thorough inspection those that they consider high risk for drug smuggling. This identification is generally done through the use of databases available to Customs, such as TECS. TECS is designed to be a comprehensive enforcement and communications system that enables Customs and other agencies to create or access lookout data when (1) processing persons and vehicles entering the United States; (2) communicating with other computer systems, such as the Federal Bureau of Investigation’s National Crime Information Center; and (3) storing case data and other enforcement reports. In addition to Customs, TECS has users from over 20 different federal agencies, including the Immigration and Naturalization Service; the Bureau of Alcohol, Tobacco and Firearms; the Internal Revenue Service; and the Drug Enforcement Administration. The TECS network consists of thousands of computer terminals that are located at land border crossings along the Canadian and Mexican borders; sea and air ports of entry; and the field offices of Customs’ Office of Investigations and the Bureau of Alcohol, Tobacco and Firearms. These terminals provide access to records and reports in the TECS database containing information from Customs and other Department of the Treasury and Department of Justice enforcement and investigative files. According to the TECS user manual, all TECS users (e.g., Customs inspectors and special agents) can create and query subject records, which consist of data on persons, vehicles, aircraft, vessels, businesses or organizations, firearms, and objects. According to TECS Data Standards, records should be created when the subject is deemed to be of law enforcement interest. This interest may be based on previous violations, such as drug smuggling or suspicion of violations, or subjects that are currently or potentially of investigative interest. One of the reasons for creating a TECS lookout record is to place a person or vehicle in the system for possible matching at Customs’ screening locations, such as land border ports of entry. For example, if a vehicle’s license plate that was placed on lookout for possible drug smuggling were later matched during a primary inspectionat a land border port of entry, that vehicle could be referred for additional scrutiny at a secondary inspection. Inappropriate deletions of TECS lookout records could negatively affect Customs’ ability to detect drug smuggling. Although inspectors have the option to conduct a thorough examination of all persons, cargo, and conveyances entering the country, they selectively identify for a thorough inspection only those that they consider high risk for drug smuggling. This identification is generally done through the use of databases available to Customs, such as TECS. Inspectors also rely on their training and experience to detect behavior that alerts them to potential drug violators. If lookout records have been inappropriately deleted, inspectors will have less information or less accurate information on which to make their decisions. The TECS administrative control structure consists of a series of System Control Officers (SCO) at various locations, including Customs headquarters, CMCs, and ports around the country. These SCOs are responsible for authorizing and controlling TECS usage by all of the users within the network. A national SCO has designated other SCOs at Customs headquarters for each major organization (e.g., Office of Investigations, Field Operations, and Internal Affairs) who, in turn, have designated regional SCOs who have named SCOs at each CMC and Office of Investigations field office. In some instances, SCOs have been appointed at the port of entry and Office of Investigations suboffice level. Consequently, the SCO chain is a hierarchical structure with each user assigned to a local SCO who, in turn, is assigned to a regional SCO, and so on up to the national level. One of an SCO’s primary duties is to establish User Profile Records on each user. User Profile Records identify the user by name, social security number, position, duty station, and telephone number. They also identify the social security number of the user’s supervisor, the SCO’s social security number, and the TECS applications that the user is authorized to access. SCOs at the various levels have certain system authorities they can pass on to other users. For example, the record update level is a required field in the User Profile Record that indicates the user’s authority to modify or delete records. SCOs can only assign to a user the level that they have, or a lower level. According to the TECS user manual, record update levels include the following: 1. Users can only modify or delete records they own (i.e., the user created the records or received them as a transfer from the previous owner). 2. Users can modify or delete any record within their specific Customs sublocation, such as a port of entry, thereby ignoring the ownership chain;the user does not have to be the owner of the record. 3. Users can modify or delete any record owned by anyone in their ownership chain. 4. Users can modify or delete any record in the Customs Service, thereby ignoring the ownership chain. 5. Users have a combination of levels two and three. 9. Users can modify or delete any user’s record in the database. According to Customs TECS officials, when a TECS user creates a record and enters it into the system, the user’s supervisor is automatically notified of the entry. All records must be viewed by the supervisor. The supervisor must approve the record, and the record must be linked to supporting documentation, such as a Memorandum of Information Received. According to the TECS user manual, TECS users can modify and delete records that they own, and on the basis of the record update level in their User Profile Record, may modify and delete the records of other users as follows: If the users are supervisors or SCOs with the proper record update level (three or five), they may modify and delete the records owned by users in their supervisory or SCO chain. If the users’ record update level (two, four, or five) allows, they may modify and delete the records created or owned by other users in a specific Customs sublocation, such as a port of entry. No other controls or restrictions are written in the TECS user manual or any other document that we reviewed. The Federal Managers’ Financial Integrity Act of 1982 required, among other items, that we establish internal control standards that agencies are required to follow (see 31 U.S.C. 3512). The resulting Comptroller General’s standards for internal controls in the federal government contain the criteria we used to assess Customs’ controls over the deletion of lookout records from TECS. During our review, we identified three areas of control weakness: separation of duties, documentation of transactions, and supervision. The Comptroller General’s internal control standards require that key duties and responsibilities in authorizing, processing, recording, and reviewing transactions should be separated among individuals. To reduce the risk of error, waste, or wrongful acts or to reduce the risk of their going undetected, no one individual should control all key aspects of a transaction or event. Rather, duties and responsibilities should be assigned systematically to a number of different individuals to ensure that effective checks and balances exist. Key duties include authorizing, approving, and recording transactions and reviewing or auditing transactions. Customs’ current policy authorizes a wide variety of people within and outside of an individual’s supervisory and SCO chain to individually delete the records that another individual owns without any checks and balances (e.g., concurrence by another person). This situation increases risk because, as one SCO that we interviewed told us, the more individuals—supervisors, SCOs, or others—with the required record update levels there are, the more vulnerable TECS is to having records inappropriately altered or deleted. According to the TECS user manual, supervisors, SCOs, and other users with the proper record update level may delete TECS records that they do not own. Moreover, we noticed a range in the number of individuals who were authorized to individually delete others’ records at the three CMCs and three ports we visited. For example, the Southern California CMC had 1 official—the SCO—with the authority to delete others’ records, while the Arizona CMC had 41 individuals—supervisors, SCOs, and others—with that authority. In addition, 1 of the ports we visited (Nogales) had 22 individuals with the authority to delete any record within their port without the record owner’s or anyone else’s permission. In these instances, many individuals, by virtue of their status as a supervisor or SCO or because they possessed the required record update level, were able to delete records with no checks and balances in evidence. The Comptroller General’s standards require that internal control systems and all transactions and other significant events are to be clearly documented, and that the documentation is to be readily available for examination. Documentation of transactions or other significant events should be complete and accurate and should facilitate tracing the transaction or event and related information from before it occurs, while it is in process, to after it is completed. Neither Customs policies nor the TECS user manual contained standards or guidance to require that Customs officials document reasons for the deletion of TECS lookout records. Although TECS can produce detailed information on what happened to records in the system and when it happened, there is no requirement that the person deleting the record is to describe the circumstances that called for the deletion. Thus, examiners cannot determine from the documentation whether the deletion was appropriate. The Comptroller General’s standards require that qualified and continuous supervision is to be provided to ensure that internal control objectives are achieved. This standard requires supervisors to continuously review and approve the assigned work of their staffs, including approving work at critical points to ensure that work flows as intended. A supervisor’s assignment, review, and approval of a staff’s work should result in the proper processing of transactions and events, including (1) following approved procedures and requirements; (2) detecting and eliminating errors, misunderstandings, and improper practices; and (3) discouraging wrongful acts from occurring or recurring. Customs had no requirement for supervisory review and approval of record deletions, although supervisory review and approval were required for creating TECS records. TECS officials told us that users could delete records that they own without supervisory approval. In addition, anyone with a higher record update level than the record owner, inside or outside of the owner’s supervisory and SCO chain, could also delete any owner’s record without obtaining approval. TECS lookout records can provide Customs inspectors at screening areas on the Southwest border with assistance in identifying persons and vehicles suspected of involvement in drug smuggling. Internal control weaknesses over deletions of the records may compromise the value of these tools in Customs’ anti-drug smuggling mission. Most of the CMCs and ports we reviewed had many individuals who were able to delete TECS records without any checks and balances, regardless of whether they owned the records or whether they were in an authorized supervisory or SCO chain of authority. In addition, Customs’ current policy authorizes a wide variety of people within and outside of an individual’s chain of authority the ability to delete records that other individuals created. The more people inside or outside of the supervisory or SCO chain of authority who can delete records without proper checks and balances, the more vulnerable the records are to inappropriate deletions. Although our review was limited to Customs headquarters, three CMCs, and three ports of entry, because of the lack of systemwide (1) internal control standards concerning deletion authority and (2) specific guidance concerning the deletion of TECS records that comply with the Comptroller General’s standards for internal controls, it is possible that TECS lookout records are not adequately safeguarded in other CMCs and other ports of entry as well. To better ensure that TECS lookout records are adequately safeguarded from inappropriate deletion, we recommend that the Commissioner of Customs develop and implement guidance and procedures for authorizing, recording, reviewing, and approving deletions of TECS records that conform to the Comptroller General’s standards. These procedures should include requiring supervisory review and approval of record deletions and documenting the reason for record deletions. The Treasury Under Secretary for Enforcement provided written comments on a draft of this report, and the comments are reprinted in appendix I. Overall, Treasury and Customs management generally agreed with our conclusions, and the Under Secretary said that Treasury officials also provided technical comments, which have been incorporated in the report as appropriate. Customs has begun action on our recommendation. Customs recognized that there is a systemic weakness in not requiring supervisory approval for the deletion of TECS records and not requiring an explicit reason for the deletion of these records. Customs agreed to implement the necessary checks and balances to ensure the integrity of lookout data in TECS. We are providing copies of this report to the Chairmen and Ranking Minority Members of House and Senate committees with jurisdiction over the activities of the Customs Service, the Secretary of the Treasury, the Commissioner of Customs, and other interested parties. Copies also will be made available to others upon request. The major contributors to this report are listed in appendix II. If you or your staff have any questions about the information in this report, please contact me on (202) 512-8777 or Darryl Dutton, Assistant Director, on (213) 830-1000. Brian Lipman, Site Senior The first copy of each GAO report and testimony is free. Additional copies are $2 each. Orders should be sent to the following address, accompanied by a check or money order made out to the Superintendent of Documents, when necessary. VISA and MasterCard credit cards are accepted, also. Orders for 100 or more copies to be mailed to a single address are discounted 25 percent. U.S. General Accounting Office P.O. Box 37050 Washington, DC 20013 Room 1100 700 4th St. NW (corner of 4th and G Sts. NW) U.S. General Accounting Office Washington, DC Orders may also be placed by calling (202) 512-6000 or by using fax number (202) 512-6061, or TDD (202) 512-2537. Each day, GAO issues a list of newly available reports and testimony. To receive facsimile copies of the daily list or any list from the past 30 days, please call (202) 512-6000 using a touchtone phone. A recorded menu will provide information on how to obtain these lists.

Pursuant to a congressional request, GAO reviewed the internal control techniques the Customs Service has in place to safeguard certain law enforcement records in the Treasury Enforcement Communications System (TECS) from being inappropriately deleted. GAO noted that: (1) Customs did not have adequate internal controls over the deletion of TECS lookout records; (2) standards issued by the Comptroller General require that: (a) key duties and responsibilities in authorizing, processing, recording, and reviewing transactions should be separated among individuals; (b) internal control systems and all transactions and other significant events should be clearly documented; and (c) supervisors should continuously review and approve the assigned work of their staffs; (3) however, guidance on TECS does not require these safeguards and Customs officials at the three ports GAO visited had not implemented these controls; (4) as a result, Customs employees could inappropriately remove lookout records from TECS; and (5) although GAO's review was limited to Customs headquarters, three Customs Management Centers, and three ports of entry, because of the lack of adequate systemwide internal control standards over deletion authority, it is possible that TECS lookout records may not be adequately safeguarded in other ports of entry as well.

Mr. Chairman and Members of the Subcommittee: We are pleased to be here today to discuss the progress being made in downsizing the federal workforce and agencies’ use of buyouts. As agreed with your office, our statement includes information on the results to date of federal downsizing efforts, whether agencies’ use of buyouts reflected the administration’s workforce restructuring goals as articulated by the National Performance Review (NPR), the demographic results of the buyouts, the extent to which we estimate that the statutorily mandated workforce reduction goals could be met through attrition, and the cost and savings implications of buyouts versus reductions-in-force (RIF). We obtained information on the results of federal downsizing activities by analyzing workforce data contained in the Office of Personnel Management’s (OPM) Central Personnel Data File (CPDF) for fiscal year 1992 through November of fiscal year 1996, and by reviewing workforce trends presented in the President’s fiscal year 1997 federal budget. Our analysis of whether agencies’ use of buyouts reflected NPR’s workforce restructuring goals was based on our review of applicable Office of Management and Budget (OMB) guidance to agencies and CPDF workforce data. Our examination of the demographic results of the buyouts was based on CPDF data as well. Our estimate of the extent to which mandated workforce reduction goals can be achieved by attrition was based on workforce trends data contained in the President’s fiscal year 1997 federal budget. The costs and savings of buyouts and RIFs were analyzed using past studies by us, the Congressional Budget Office, and other federal agencies; contacts with agency officials; and demographic data from the CPDF. A more detailed analysis of the circumstances under which buyouts or RIFs offer greater potential savings is contained in the report we prepared for this Subcommittee that was released today. The Federal Workforce Restructuring Act of 1994 (P.L. 103-226) placed annual ceilings on executive branch full-time equivalent (FTE) positions from fiscal years 1994 through 1999. If implemented as intended, these ceilings will result in downsizing the federal workforce from 2.08 million FTE positions during fiscal year 1994 to 1.88 million FTE positions during fiscal year 1999. To help accomplish this downsizing, the act allowed non-Department of Defense (DOD) executive branch agencies to pay buyouts to employees who agreed to resign, retire, or take voluntary early retirement by March 31, 1995, unless extended by the head of the agency, but no later than March 31, 1997. DOD, though subject to the act’s governmentwide FTE ceilings, has the authority, under earlier legislation, to offer buyouts through September 30, 1999. For both DOD and non-DOD agencies, the buyout payment was the lesser of $25,000 or an employee’s severance pay entitlement. According to OPM data, as of September 30, 1995, more than 112,500 buyouts had been paid governmentwide. DOD was responsible for about 71 percent of these buyouts. The federal workforce is being reduced at a faster pace than was called for by the Workforce Restructuring Act. As shown in table 1, the act mandated a ceiling of 2,043,300 FTE positions for fiscal year 1995. This would have resulted in a reduction of 95,500 FTE positions (4.5 percent) from the actual fiscal year 1993 level. In reality, the actual fiscal year 1995 FTE level was 1,970,200, a reduction of 168,600 FTE positions (7.9 percent) from the fiscal year 1993 level. By the end of fiscal year 1997, the administration’s budget calls for the federal workforce to be nearly 53,000 FTE positions below the ceiling called for by the act for that period. Although the workforce reductions occurred governmentwide, they were not evenly distributed among agencies. Indeed, most of the downsizing took place at DOD. As shown in table 2, DOD absorbed nearly three-quarters of the FTE reductions in fiscal year 1994 and over half of the governmentwide reductions in fiscal year 1995. In fiscal year 1997, DOD is expected to absorb all of the FTE reductions made that year while the non-DOD workforce is expected to increase by a net total of 0.2 percent, according to the President’s fiscal year 1997 budget. Although federal employment levels have declined steadily in recent years, the workforce has been reduced with comparatively few RIFs, in part because of the buyouts. Had it not been for the buyout authority, it is likely that more agencies would have RIFed a larger number of employees to meet federal downsizing goals. From September 30, 1994, through March 1995, the on-board executive branch civilian workforce dropped from 2,164,727 employees to 2,032,440 employees, a reduction of 6 percent. CPDF data show that of the 132,287 reductions in on-board personnel that took place during this time period, 48 percent involved buyouts and 6 percent came from RIFs. The remaining 46 percent involved separations without buyouts or the basis for separation was not identified in the CPDF. The administration, through NPR, recommended that agencies direct their workforce reductions at specific “management control” positions that the administration said added little value to serving taxpayers. Such positions included those held by (1) managers and supervisors and (2) employees in headquarters, personnel, budget, procurement, and accounting occupations. By fiscal year 1999, the administration called on agencies to increase managers’ and supervisors’ span of control over other employees from a ratio of 1:7 to 1:15, and to cut management control positions by half. In our draft report on agencies’ use of buyouts that we are preparing for this Subcommittee, we present preliminary data showing that, as a proportion of the workforce as a whole, the management control positions designated for reduction by NPR were barely reduced since the end of fiscal year 1992 (the year before buyouts began at DOD); in some agencies they have increased. As shown in table 3, although the percentage of supervisors at DOD agencies dipped from 12.7 percent of the workforce to 11.9 percent, (1 supervisor for every 6.9 employees to 1 supervisor for every 7.4 employees), all but one of the other designated management control positions increased somewhat. Acquisition positions showed no change. Non-DOD agencies came only slightly closer to meeting the NPR goals. The percentage of supervisors in the non-DOD workforce went from 12.5 percent to 11.6 percent (1 supervisor for every 7 employees to 1 supervisor for every 7.6 employees). Personnel and headquarters staff also decreased as a proportion of the non-DOD workforce, while the remaining categories showed no proportional reduction or slight increases. some employees delayed their separations so that they could receive a buyout. Although it was not an explicit goal of the buyout legislation, the buyouts appeared to have helped agencies downsize without adversely affecting workforce diversity. Indeed, of the nearly 83,000 employees who were paid buyouts from fiscal year 1993 through March 31, 1995, 52 percent were white males. Consequently, the percentage of women in the workforce increased from 43.4 percent at the end of fiscal year 1992 to 44.6 percent by March 31, 1995. Likewise, during that same time period, the percentage of minorities went from 27.9 percent to 28.9 percent of the workforce. As noted earlier, total governmentwide FTE levels to date are well below the annual ceilings mandated by the Workforce Restructuring Act. Our estimates indicate that the act’s final fiscal year 1999 target for FTE ceilings could probably be met in total through an attrition rate as low as 1.5 percent and still allow for some limited hiring. As shown in figure 1, the administration’s 1997 budget calls for reducing the federal workforce from 1.97 million FTE positions at the end of fiscal year 1995 to an estimated 1.91 million FTE positions by the end of fiscal year 1997. At that rate of reduction—about 1.5 percent per year—executive branch civilian agencies could meet the fiscal year 1999 FTE ceiling called for by the act while still hiring nearly 28,000 new full-time employees. Although federal attrition varies from year to year because of such factors as the state of the economy, the availability of separation incentives, and employees’ personal considerations, federal attrition has typically run considerably higher than 1.5 percent. For example, in fiscal years 1982 through 1992 (the year before buyouts began at DOD), CPDF data shows that the average annual quit rate was about 8 percent. Federal employment levels (FY 1996 - 1997 are budgetary estimates). GAO estimates. Federal Workforce Restructuring Act ceiling. Experience has shown that some agencies may need to pare down their workforces more than others as budgets are reduced, programs are dropped, and/or missions are changed. In such circumstances, some agencies may not be able to meet workforce reduction goals through attrition, and other downsizing strategies, such as buyouts or RIFs, may be necessary. do so 3 years earlier. If it were to reduce at this pace, NASA has said that it would anticipate that RIFs would be necessary. Although this downsizing proposal may or may not be implemented, it illustrates the potential magnitude of workforce reductions being considered at some individual agencies. If an agency is unable to meet its workforce reduction goals through attrition alone, which downsizing strategy—buyouts or RIFs—generates greater savings? Our study of the costs and savings of buyouts versus RIFs concludes that, over a 5-year period, buyouts would generally result in more savings to taxpayers than RIFs. This is because buyouts usually result in the separation of employees with higher salaries and benefits than those who are separated through RIFs. Because of the rights of higher graded employees to “bump” or “retreat” to lower-graded positions during a RIF, employees separated through RIFs are frequently not those who were in the positions originally targeted for elimination. We found that buyouts could generate up to 50 percent more in net savings than RIFs over the 5-year period following separation. However, these results would change if bumping and retreating did not occur in a RIF and the separated employees were eligible for retirement. In these cases, RIFs could generate up to 12 percent more in savings over the 5-year period than buyouts. Finally, if the employees were separated without bumping and retreating and were not retirement-eligible, the cost of severance pay for the RIFed employees would result in buyouts generating up to 10 percent more in net savings than RIFs over the 5-year period. These net savings projections are based on the assumption that positions vacated by separating employees would not be refilled by government or contractor personnel. Projected savings would be reduced if this occurred. their workforces by reducing management control positions. These positions have not been reduced as a proportion of the workforce as called for by NPR. With regard to future workforce reductions, our analysis showed that in terms of absolute numbers—and given historical quit rates—the remaining annual FTE employment ceilings called for by the Workforce Restructuring Act probably could be achieved governmentwide through attrition. Nevertheless, some agencies may be required to downsize more than others. In such situations, buyouts or RIFs may be necessary. In comparing the costs and savings of buyouts and RIFs, our analysis showed that buyouts offered greater savings than RIFs, except when RIFed employees do not bump and retreat and are eligible to retire. This concludes my prepared statement. I would be pleased to answer any questions you or Members of the Subcommittee may have. The first copy of each GAO report and testimony is free. Additional copies are $2 each. Orders should be sent to the following address, accompanied by a check or money order made out to the Superintendent of Documents, when necessary. VISA and MasterCard credit cards are accepted, also. Orders for 100 or more copies to be mailed to a single address are discounted 25 percent. U.S. General Accounting Office P.O. Box 6015 Gaithersburg, MD 20884-6015 Room 1100 700 4th St. NW (corner of 4th and G Sts. NW) U.S. General Accounting Office Washington, DC Orders may also be placed by calling (202) 512-6000 or by using fax number (301) 258-4066, or TDD (301) 413-0006. Each day, GAO issues a list of newly available reports and testimony. To receive facsimile copies of the daily list or any list from the past 30 days, please call (202) 512-6000 using a touchtone phone. A recorded menu will provide information on how to obtain these lists.

GAO discussed the government's progress in downsizing its workforce and use of employee buyouts. GAO noted that: (1) executive branch full-time equivalent (FTE) positions could decrease to 1.88 million during fiscal year (FY) 1999 under mandated ceilings; (2) as of September 30, 1995, the Department of Defense (DOD) paid 71 percent of the more than 112,500 governmentwide buyouts; (3) the actual FY 1995 FTE level was 73,100 positions below the FY 1995 ceiling; (4) the FY 1997 budget calls for nearly 53,000 fewer FTE positions; (5) employee buyouts have helped limit reductions-in-force (RIF) to 6 percent of personnel cuts; (6) agencies have used buyouts more to meet required downsizing goals than to meet the administration's restructuring goals; (7) management control positions of DOD agencies have decreased to under 12 percent, but other designated positions have increased; (8) 70 percent of buyouts between FY 1993 and FY 1995 were paid to employees who took regular or early retirement; (9) retirements decreased 20 percent from FY 1991 through FY 1992, but increased 35 percent after buyout authorization; (10) the FY 1999 workforce goal could probably be met through normal attrition, but budget cuts may force some agencies to rely on other strategies to reduce their workforces below their goals; and (11) in general, buyouts generate up to 50 percent more in net savings over 5 years than RIF because higher-graded employees retreat to lower-graded positions during RIF.

In the 109 th Congress, two proposals have been introduced to regulate more strictly certain long-range .50 caliber rifles. The Fifty Caliber Sniper Weapons Regulation Act of 2005 ( S. 935 ), introduced by Senator Dianne Feinstein, would amend the National Firearms Act (NFA) to regulate ".50 caliber sniper weapons" in the same fashion as short-barreled shotguns and silencers, by levying taxes on the manufacture and transfer of such firearms and by requiring owner and firearm registration. The other proposal introduced by Representative James Moran, the 50 Caliber Sniper Rifle Reduction Act ( H.R. 654 ), would also amend the NFA to include these weapons, but would also amend the Gun Control Act to effectively freeze the population of these weapons legally available to private persons, and to prohibit any further transfer of these firearms. In other words, H.R. 654 would grandfather in existing rifles, but would ban their further transfer. Consequently, the proposal would eventually eliminate these rifles altogether from the civilian gun stock. It is likely that covered .50 caliber rifles would have to be destroyed or handed over to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) as contraband, when the legal firearm owner died or wanted to give up the firearm. As currently constructed, H.R. 654 includes no compensation provision for rifles destroyed or handed over to the federal government under this proposal. Furthermore, both proposals ( S. 935 and H.R. 654 ) would define ".50 caliber sniper weapon" to mean "a rifle capable of firing center-fire cartridge in .50 caliber, .50 BMG caliber, any other variant of .50 caliber or any metric equivalent of such calibers." Many rifles, and even some handguns, are chambered to fire .50 caliber ammunition, meaning the projectile is about one-half inch in diameter. Opponents of this legislation are likely to note that this definition is very broad and would likely cover .50 caliber rifles that would not be considered "long-range" or "sniper rifles." The .50 BMG caliber round, on the other hand, is an exceptionally large cartridge (projectile and casing), which was once used almost exclusively as a heavy machine gun round. Certain specialized firearms manufacturers began producing long-range .50 caliber rifles in the early 1980s. In recent years, these firearms have gained popularity among firearms enthusiasts; and, in 1985, they formed the Fifty Caliber Shooters Association, Inc. (FCSA) to "advance the sporting uses of the .50 caliber BMG cartridge." The FCSA holds competitive marksmanship matches of 1,000 yards (and longer). The .50 caliber BMG cartridge was developed following the First World War as a "heavy machine gun" cartridge. Adopted by the U.S. Army in 1923, it has seen continuous service ever since. According to one firearms expert, one common variety of the .50 caliber BMG cartridge (12.7x99mm) includes a projectile that weighs 665 grains; whereas, a comparable mid-size rifle cartridge like the .308 Winchester (7.62x51mm) includes a projectile that weighs about 147 grains. Hence the .50 caliber BMG projectile is 4.5 times greater in weight than the .308 Winchester. While a cartridge's ballistic performance depends on the type of projectile, grade of propellant (gunpowder) and other factors, the .50 caliber BMG cartridge casing holds about five times more propellent than the .308 Winchester. By further comparison, the same rounds have: (1) a maximum effective range of 2,000 and 1,500 yards; (2) a muzzle velocity of 2,900 and 2,750 feet per second; and (3) a muzzle energy of 12,000 and 2,400 foot-pounds, respectively. The muzzle energy of the .50 caliber BMG round provides not only increased "knock down" power, but increased accuracy as well. In modern rifles, the .50 caliber BMG round can routinely hit a 55-gallon drum at ranges of a mile (1,760 yards). In skilled hands and known wind conditions, such a rifle can be used to place five shots within a 6-inch circle at a range of over one-half mile (1,000 yards). The FCSA maintains that long-range .50 BMG caliber rifles were first developed for marksmanship competitions and, then adopted by the military as sniper rifles. One of the rifles adopted by the U.S. Army is the M-107 Long Range Sniper Rifle. Outfitted with a 10-round magazine, the M-107 is a semiautomatic rifle, meaning it is self-loading, but fires only one round per trigger pull. It is also outfitted with an "attached optics/electro-optics [scope] that supports all weather, day/night tactical dominance.... " Fifty caliber BMG ammunition comes in a wide variety, so the rifle is capable of delivering incendiary, armor piercing, tracer, and dual purpose ammunition. According to one firearms expert: The primary mission of this rifle is to engage and defeat material targets at extended ranges to include parked aircraft; command, control, communications, computers, and intelligence (C4I) sites; radar sites; ammunition; petroleum, oil and lubricants; and various other thin skinned (lightly armored) material targets out to 2000 meters. Loaded with nine rounds, the M-107 weighs about 32 pounds. For FY2005, the unit price for a single rifle is $14,833 (based on a modular cost of $8.9 million for 600 rifles). The M-107 government contractor—Barrett Firearms Manufacturing Company—produces long-range .50 caliber rifles, which are available to the general public. Equipped with conventional scopes, these rifles range in price from $2,800 for a single-shot bolt-action rifle to $6,750 for a semiautomatic rifle ( new in box (NIB) ). Regarding the availability of armor piercing/incendiary rifle ammunition in the civilian gun market, for the past six years (FY2000-FY2005), a provision has been included in the Department of Defense Appropriations Act that bans the resale of military surplus .50 caliber ammunition, unless it is "demilitarized," so that the refurbished ammunition does not include armor piercing, incendiary, and tracer projectiles. This provision includes exceptions for ammunition that is refurbished for the National Guard or for export to foreign governments for military purposes. While such ammunition introduced into the civilian market prior to the ban is still available, it is a specialty item and not always easily located. Gun control advocates have reported that long-range .50 caliber rifles could be used by terrorists in several deadly scenarios. According to the Violence Policy Center, given the range and power of a .50 caliber BMG round, a rifle chambered to fire this round could be used to bring down a slow/low-flying aircraft. It is also plausible, that a terrorist using such a rifle could punch holes in pressurized chemical tanks, igniting combustible materials or leaking hazardous gases. In addition, such a rifle could be used to penetrate lightly armored vehicles—such as those used by law enforcement and protective limousine services. While these potentialities exist, as pointed out by gun control opponents, long-range .50 caliber rifles have not been the weapons of choice of criminals as law enforcement encounters with these weapons have been few and sporadic. Given the potential destructiveness of these rifles, one option for Congress to consider is more strictly regulating these firearms under the National Firearms Act. Two major statutes regulate the commerce in, and possession of, firearms: The National Firearms Act of 1934 and the Gun Control Act of 1968, as amended. Supplementing federal law, many state firearms laws are stricter than federal law. For example, some states prohibit any possession of machine guns by private persons, require permits to obtain other firearms, and impose waiting periods for firearm transfers. Other states are less restrictive, but state law cannot preempt federal law. In general, federal law serves as the minimum standard in the United States. In 1934, Congress passed the NFA to limit the availability of machine guns, short-barreled rifles and shotguns, silencers, and a "catch-all" class of other "concealable" firearms identified as "any other weapon." Many of these weapons were considered particularly lethal and often the weapons of choice of "gangsters" during the prohibition era (1919-1933). As part of the Internal Revenue Code, the NFA levies taxes on all aspects of the manufacture/importation and distribution of such firearms, and requires that these firearms and their owners be registered at every point the firearms change ownership in the chain of commerce. The NFA required the Secretary of the Treasury to establish a registry of all NFA firearms in the United States that were not under the control of the United States. Today, the registry is maintained by the Attorney General. Title II of the Gun Control Act (GCA) of 1968 revised and re-codified the NFA to (1) expand its scope of coverage to include destructive devices (bombs, incendiary devices, and weapons with a bore of greater than one-half inch); (2) include a definition for "any other weapon" to more precisely include certain smooth bore, short-barreled handguns; and (3) redefine the term "firearm" to exclude antique firearms or any device (except machine guns and destructive devices) that were determined to be "collectors' items" by reason of their date of manufacture, value, design, and other characteristics and would not likely be used as a weapon. Under this provision, the Attorney General is authorized to reclassify certain firearms as "collectors items," administratively removing them from the NFA. The GCA also increased penalties for violating the NFA. In addition, the GCA included an amnesty provision that addressed a Supreme Court ruling regarding the registration of NFA weapons and the likelihood that individuals holding unregistered NFA firearms would incriminate themselves by registering such weapons. In 1986, Congress passed the Firearms Owners' Protection Act (FOPA) and amended the GCA to prohibit the possession of machine guns that were not legally possessed or available for transfer prior to enactment (May 19, 1986). While FOPA included exceptions for any department or agency of the United States, a state, or political subdivision thereof, it effectively froze the number of machine guns that were legally available to the general public in the United States. As stated above, the NFA requires the Attorney General to maintain a central registry of all NFA firearms and owners in the United States, which are not in the possession or under the control of the United States. The Attorney General has delegated this duty to the ATF Director. At ATF, the NFA Branch is charged with maintaining the registry—the National Firearms Registration and Transfer Record (NFRTR) database, which includes data on the make and model of registered firearms, registration dates, as well as biographic and address information about the persons to whom the firearms are registered. It is a felony to receive, possess, or transfer an unregistered NFA firearm. Such offenses are punishable by a fine of up to $250,000, imprisonment for up to 10 years, and forfeiture of the firearm and any vessel, vehicle, or aircraft used to conceal or convey the firearm. To deal in NFA firearms, a person is required to be a federal firearms licensee (FFL) under the GCA and also be a special occupational taxpayer (SOT) under the NFA. Class one SOTs are importers of NFA firearms; Class two SOTs are manufacturers of NFA firearms; and Class three SOTs are dealers. NFA firearms are often referred to as Class three weapons, for Class three dealers. The NFA imposes a $200 manufacturing tax and a $200 transfer tax each time a firearm changes hands. Upon a transfer's approval, ATF places a tax stamp on the tax paid transfer document. The transferee may not take possession of the firearm until he holds the approved transfer document. Private persons, who are not otherwise prohibited by law, may acquire an NFA firearm in one of three ways: (1) a registered owner of an NFA firearm may apply for ATF approval to transfer the firearm to another person residing in the same state or to a FFL in another state; (2) an individual may apply to ATF for approval to make and register an NFA firearm (except machine-gun); or (3) an individual may inherit a lawfully registered NFA firearm. Congress could consider several options for dealing with long-range .50 caliber rifles. One, Congress could take no action. Two, Congress could require that such rifles be registered under the NFA, as would Senator Feinstein's proposal ( S. 935 ). Three, Congress could ban their further production for the civilian gun market, as would Representative Moran's proposal ( H.R. 654 ). Four, Congress could also ban any further transfer of these firearms—effectively eliminating these weapons from the civilian gun market in time, as would H.R. 654 . Five, these weapons could be banned outright, a scenario under which, Congress could also consider compensating owners for turning such firearms over to the federal government. Six, Congress could also consider recalling all existing armor piercing/incendiary .50 caliber BMG ammunition still available in the civilian gun market. Seven, Congress could consider setting ballistic performance standards that would benchmark the outward limit for .50 caliber rifle ammunition considered acceptable for sporting, hunting, or recreational purposes.

In the 109th Congress, legislation has been introduced to more strictly regulate certain .50 caliber rifles, some of which have been adopted by the U.S. military as sniper rifles. These rifles are chambered to fire a relatively large round that was originally designed for the Browning Machine Gun (BMG). Gun control advocates have argued that these firearms have little sporting, hunting, or recreational purpose. They maintain that these rifles could be used to shoot down aircraft, rupture pressurized chemical tanks, or penetrate armored personnel carriers. Gun control opponents counter that these rifles are expensive, cumbersome and rarely, if ever, used in crime. Furthermore, they maintain that these rifles were first developed for long-range marksmanship competitions and, then adopted by the military as sniper rifles. Related amendments may be offered during Senate-consideration of the Protection of Lawful Commerce in Arms Act (S. 397). (For further information, see CRS Report RS22074, Limiting Tort Liability of Gun Manufacturers and Gun Sellers: Legal Analysis of P.L. 109-92 (2005), by [author name scrubbed].) The issue for Congress is whether to regulate these firearms more stringently based on their destructive potential in a post-9/11 environment. And if regulation is pursued, what measures seem most effective and appropriate. This report will be updated as needed.

Federal income tax laws provide certain allowances for the blind, the most important of which is the additional standard deduction amount allowed to legally blind taxpayers. Other special tax allowances are included in other provisions of the law, such as the exception from the 2% floor for deducting employee business expenses for impairment-related work expenses of handicapped employees. Only the additional standard deduction amount for the blind, however, is discussed in this short report. Under present law in 2008, individuals in general are entitled, for income tax purposes, to deduct from their income in lieu of itemizing deductions a standard deduction amount of $5,450 if single; $8,000 as head of household; or $10,900 if married and filing jointly. In addition, each married taxpayer is allowed an additional standard deduction amount of $1,050 if he/she is at least 65 years of age or blind; if both blind and 65 years of age or older they are each allowed an additional standard deduction amount of $2,100. (Thus, the total added deduction for a married couple, both of whom are blind and over 65, would be $4,200). If single or filing as head of household the additional standard deduction amount is $1,350 for age or blindness, and $2,700 for both. However, the additional standard deduction amount is not allowable for a dependent who is 65 years old or blind. The forgoing amounts are subject to adjustments for inflation. An additional standard deduction for other forms of handicap is currently not allowed by federal tax laws. The advocates of the special tax provisions for blind taxpayers justify it on the basis of need. They argue that blind persons incur certain expenses that sighted persons normally would not incur. For example, they say the blind often incur taxi fares to go shopping or to their place of employment whereas sighted persons may walk or take a less expensive form of transportation. Further, advocates say, those who are blind cannot mow their lawn, make many necessary home repairs, or perform all their own house cleaning. Consequently, blind persons pay for these services that would ordinarily be performed by those with sight. An employed blind person will frequently live near their place of employment, which may result in a higher rent than if he/she could live elsewhere. Thus, it was the incurring of additional expenses on account of blindness that was recognized when a special tax concession was first allowed blind taxpayers. Initially, in introducing the provision as a deduction in the Revenue Act of 1943, the House Ways and Means Committee stated "the committee has provided for a special deduction of $500 from the gross income of every blind person in order to cover the expenses resulting directly from blindness, such as the cost of readers and guides. This would relieve many blind persons of any tax whatsoever, and would reduce the tax of other blind persons." In a later tax bill (which became the Revenue Act of 1948) the deduction was changed to an additional personal exemption amount of $600 on the basis of these same considerations. In discussing the change, the House Ways and Means Committee noted that blind persons were benefitted by more than the $100 increase in amount. By substituting the exemption for the deduction, blind persons did not forfeit the ability to use the standard deduction. Additionally, as a personal exemption, it was easier to reflect the tax benefit in the income tax withholding tables so that tax relief was provided throughout the year rather than having to wait for a refund after tax filing. The tax provision for the blind in the Revenue Act of 1948 was incorporated in the Internal Revenue Code of 1954 , substantially unchanged. As the personal exemption increased over the years, so too did the amount of the additional exemption provided the blind. The exemption amount increased from $625 in 1970 to $1,080 in 1986. A comprehensive revision of the income tax code was made with enactment of the Tax Reform Act of 1986—designed to lead to a fairer, more efficient and simpler tax system. The act broadened the tax base so that tax rates could be lowered by removing the preferential treatment of certain classes of income and expenditures (e.g., capital gains, two-earner wage deduction, personal interest deductions, etc.). Further, the act provided for the repeal of the dividend exclusion, the political contributions credit and the provision of income averaging for all taxpayers. Both the personal exemption amount and the standard deduction amounts were raised, thus reducing the number of taxpayers who would find it advantageous to itemize their deductions. Further, the act repealed the additional personal exemption amount for the blind (and elderly) and in its place instituted an extra standard deduction amount for both blind and/or elderly taxpayers. This additional standard deduction amount is combined with the increased standard deduction provided by the 1986 act. Both the standard deduction and additional standard deduction amount for blind and/or elderly taxpayers were indexed for inflation in future years. In general, higher income taxpayers are more likely to itemize while lower and moderate income taxpayers more frequently use the standard deduction. The personal exemption is typically of greater value to higher income than lower income taxpayers. Thus, Congress in the 1986 tax act effectively targeted the tax benefits to lower and moderate income elderly and blind taxpayers by substituting an additional standard deduction amount for the additional personal exemption permitted under prior law. Advocates of the blind justify special tax treatment on the basis of need. It is argued that the blind face increased living costs. These costs arise from the need to hire readers and guides, etc. The blind are also frequently faced with additional expenses associated with earning income. These expenses are typically in the form of cab fares, specialized work equipment, etc. To the extent that the blind make these expenditures, it affects their ability to pay income taxes. Thus, the extra standard deduction amount can be seen as an attempt to compensate the blind for these added living and business expenses. However, as discussed below, it may also be said that the additional standard deduction accorded the blind does not meet horizontal equity principles in that all taxpayers with equal net incomes are not treated equally. Many blind individuals have low incomes. Low-income taxpayers most frequently use the standard deduction while higher income taxpayers are more likely than low-income individuals to itemize deductible items. Thus, as an additional standard deduction amount, this tax benefit for the blind is more likely to go to lower or moderate income blind taxpayers than higher income blind taxpayers who are more likely to itemize deductions. However, if this tax provision is truly based on need, then one objection opponents offer is that the provision does not offer equivalent treatment to other taxpayers with different handicapping conditions who may be in as much need of tax relief. For, just as the blind often incur special expenses due to their blindness, many other handicapped persons (e.g. amputees, learning disabled, hearing impaired, etc.) also incur special expenses due to their individual impairments. Some of the special expenditures made by the blind are frequently the same types of expenditures made by those with other handicapping conditions (i.e., travel costs to work or home, upkeep and repair services). Further, like the blind, the handicapped as a class usually have low incomes. It has been suggested that equity may not be the best tool to measure the merits of the additional standard deduction for blind taxpayers. Rather than equity, the question has been raised as to its effectiveness (that is, does the added standard deduction amount aid those needing tax relief?). The provision fails the effectiveness test since some low-income blind individuals, who already would be exempt from tax without the benefit of the additional standard deduction amount, receive no benefit. While these individuals are the most in need of financial assistance, they receive no benefit from the tax concession. Additionally, the provision does not benefit those blind taxpayers who itemize deductions (for example, those with large medical expenditures). Moreover, the value of the additional standard deduction amount is of greater benefit to higher rather than lower income taxpayers (in those cases where the taxpayer does not itemize). As mentioned in the brief summary of the law, a taxpayer that supports a blind dependent may not claim the additional standard deduction amount. Some believe that a taxpayer who incurs additional expenses on behalf of a blind dependent has as much justification to claim the additional standard deduction amount as that dependent. Questions arise as to why the provision for the blind has not spread to those taxpayers with other serious handicapping conditions. The legislative history indicates that administrative reasons initially precluded the addition of other handicapping provisions. Critics have argued that if it is appropriate and desirable to provide a subsidy to the lower-income blind, then similar subsidies should also be provided to other lower-income groups facing equivalent handicaps. Some have supported a shift from tax provisions to a grant program, since under a grant program, the revenue costs are known and benefits precisely targeted with conclusive rules and regulations. (However, a grant results in taxable income to the recipient unless specifically excluded by statute.) The current provision leads to pressures for tax concessions from other similar groups. However, the passage of an act, which allows many other handicaps the same tax advantage as the blind, would result in a substantial loss of revenue to the federal government. In general, enforcement procedures under the congressional budget process may raise significant hurdles to the consideration of legislation that would cause an additional revenue loss that is not accommodated by the annual budget resolution. Even so, legislation proposing such a revenue loss may be considered without triggering procedural sanctions if it is supported by majorities in the House and Senate sufficient to waive the enforcement procedures. Additional enforcement procedures based in statute (i.e., the "pay-as-you-go" requirement and limits on discretionary spending) effectively expired at the end of FY2002, and Congress and the President have not agreed on whether to renew them. Although it is true that more attention is focused on tax expenditures than in the past, they are still seen by many as "hidden" expenditures. A disadvantage of tax expenditures is that since they are not acted upon in the normal budgetary process, they are able to grow in revenue size and are not subject to periodic review. The Joint Committee on Taxation estimated that the revenue cost over the five fiscal years of 2007-2011 will be $8.9 billion for those who use the additional standard deductions available to the elderly and blind.

In the Revenue Act of 1943, a special $500 income tax deduction was first permitted the blind for expenses directly associated with readers and guides. This deduction for expenses evolved to a $600 personal exemption in the Revenue Act of 1948 so that the blind did not forfeit use of the standard deduction and so that the tax benefit could be reflected directly in the withholding tables. Congress attempted to target the tax benefit to low- and moderate-income blind individuals by replacing the tax exemption with an additional standard deduction amount with passage of the Tax Reform Act of 1986. The extra standard deduction amount provides tax relief that recognizes the increased costs of living and associated costs of employment for blind taxpayers. Since many blind taxpayers have low incomes, they are able to use the additional standard deduction amount provided under current tax law. However, this extra amount arguably does not meet the tax tests of horizontal equity and effectiveness. The provision has not been extended to other taxpayers with handicapping conditions because of administrative difficulties and the loss of additional federal tax revenues. This report will be updated in future years to reflect changes in law or in the additional standard deduction amount that is adjusted for inflation.

As we reported in October 2009, insufficient site-specific data, such as local projections of expected changes, make it hard for federal, state, and local officials to predict the impacts of climate change, and thus hard for these officials to justify the current costs of adaptation efforts for potentially less certain future benefits. Based on the responses by a diverse array of federal, state, and local officials knowledgeable about adaptation to a web-based questionnaire designed for that report, related challenges generally fit into two main categories: (1) translating climate data—such as projected temperature and precipitation changes—into information that officials need to make decisions and (2) difficulty in justifying the current costs of adaptation with limited information about future benefits. The process of providing useful information to officials making decisions about adaptation can be summarized by the following: First, data from global-scale models must be “downscaled” to provide climate information at a geographic scale relevant to decision makers. About 74 percent (133 of 179) of the officials who responded to our questionnaire rated “availability of climate information at relevant scale (i.e., downscaled regional and local information)” as very or extremely challenging. Second, the downscaled climate information must be translated into impacts at the local level, such as increased stream flow. Some respondents and officials interviewed for our October 2009 report said that it is challenging to link predicted temperature and precipitation changes to specific impacts. For example, one federal official said that “we often lack fundamental information on how ecological systems/species respond to non-climate change related anthropogenic stresses, let alone how they will respond to climate change.” Third, local impacts must be translated into costs and benefits, since this information is required for many decision making processes. Almost 70 percent (126 of 180) of the respondents to our questionnaire rated “understanding the costs and benefits of adaptation efforts” as very or extremely challenging. As noted by one local government respondent, it is important to understand the costs and benefits of adaptation efforts so they can be evaluated relative to other priorities. Fourth, decision makers need baseline monitoring data to evaluate adaptation actions over time. Nearly 62 percent (113 of 181) of the respondents to our questionnaire rated the “lack of baseline monitoring data to enable evaluation of adaptation actions (i.e., inability to detect change)” as very or extremely challenging. These challenges make it difficult for officials to justify the current costs of adaptation efforts for potentially less certain future benefits. A 2009 report by the National Research Council (NRC) discusses how officials are struggling to make decisions based on future climate scenarios instead of past climate conditions. According to the report, requested by the Environmental Protection Agency and NOAA, usual practices and decision rules (e.g. for building bridges, implementing zoning rules, using private motor vehicles) assume a stationary climate—a continuation of past climate conditions, including similar patterns of variation and the same probabilities of extreme events. According to the NRC report, that assumption, which is fundamental to the ways people and organizations make their choices, is no longer valid. Federal actions to provide and interpret site-specific information would help address challenges associated with adaptation efforts, based on our analysis of responses to the web-based questionnaire and other materials analyzed for our October 2009 report. The report discussed several potential federal actions that federal, state, and local officials identified as useful to inform adaptation decision making. These included state and local climate change impact and vulnerability assessments and the development of processes and tools to access, interpret, and apply climate information. In that report, we also obtained information regarding the creation of a climate service—a federal service to consolidate and deliver climate information to decision makers to inform adaptation efforts. About 61 percent (107 of 176) of the federal, state, and local officials who responded to the web-based questionnaire developed for our October 2009 adaptation report rated the “creation of a federal service to consolidate and deliver climate information to decision makers to inform adaptation efforts” as very or extremely useful. Respondents offered a range of potential strengths and weaknesses for such a service. Several said that a climate service would help consolidate information and provide a single-information resource for local officials, and others said that it would be an improvement over the current ad hoc system. A climate service would avoid duplication and establish an agreed set of climate information with uniform methodologies, benchmarks, and metrics for decision making, according to some officials. According to one federal official, consolidating scientific, modeling, and analytical expertise and capacity could increase efficiency. Similarly, some officials noted that with such consolidation of information, individual agencies, states, and local governments would not have to spend money obtaining climate data for their adaptation efforts. Others said that it would be advantageous to work from one source of information instead of different sources of varying quality. Some officials said that a climate service would demonstrate a federal commitment to adaptation and provide a credible voice and guidance to decision makers. In an announcement on February 8, 2010, the Department of Commerce proposed establishing a NOAA climate service. Though not yet established, information is available on the NOAA climate service website, including draft vision and strategic framework documents. According to NOAA documents, such a climate service would provide a single, reliable, and authoritative source for climate data, information, and decision support services to help individuals, businesses, communities, and governments make smart choices in anticipation of a climate changed future. A September 2010 report by the National Academy of Public Administration discusses the factors needed for a NOAA climate service to succeed—such as the designation of a lead federal agency to be the day-to-day integrator of the overall federal effort regarding climate science and services—and makes recommendations on how to achieve those factors. Other respondents to our questionnaire, however, were less enthusiastic about the creation of a climate service. Some voiced skepticism about whether it was feasible to consolidate climate information, and others said that such a system would be too rigid and may get bogged down in lengthy review processes. Furthermore, certain officials stated that building such capacity may not be the most effective place to focus federal efforts because the information needs of decision makers vary so much by jurisdiction. Several officials noted that climate change is an issue that requires a multidisciplinary response, and a single federal service may not be able to supply all of the necessary expertise. For example, one federal official stated that the information needs of Bureau of Reclamation water managers are quite different from the needs of Bureau of Land Management rangeland managers, which are different from the needs of all other resource management agencies and programs. The official stated that it seems highly unlikely that a single federal service could effectively identify and address the diverse needs of multiple agencies. Several respondents also said that having one preeminent source for climate change information and modeling could stifle contrary ideas and alternative viewpoints. Moreover, several officials who responded to our questionnaire were concerned that a climate service could divert attention and resources from current adaptation efforts by reinventing duplicative processes without making use of existing structures. The 2009 NRC report on informing decisions in a changing climate recommends that the federal government’s adaptation efforts should be undertaken through a new integrated interagency initiative with both service and research elements but that such an initiative should not be centralized in a single agency. Doing so, according to this report, would disrupt existing relationships between agencies and their constituencies and formalize a separation between the emerging science of climate response and fundamental research on climate and the associated biological, social, and economic phenomena. Furthermore, the report states that a climate service located in a single agency and modeled on the weather service would by itself be less than fully effective for meeting the national needs for climate-related decision support. The NRC report also notes that such a climate service would not be user-driven and so would likely fall short in providing needed information, identifying and meeting critical decision support research needs, and adapting adequately to changing information needs. We have not made recommendations regarding the creation of a climate service within NOAA or any other agency or interagency body, although the provision of climate data and services will be an important consideration in future governmentwide strategic planning efforts, particularly in an era of declining budgets. Federal strategic planning efforts could be improved for many aspects of the climate change enterprise. Our October 2009 report on climate change adaptation concluded that, to be effective, related federal efforts must be coordinated and directed toward a common goal. This report recommended the development of a strategic plan to guide the nation’s efforts to adapt to a changing climate, including the identification of mechanisms to increase the capacity of federal, state, and local agencies to incorporate information about current and potential climate change impacts into government decision making. Some actions have subsequently been taken to improve federal adaptation efforts, but our May 2011 report on climate change funding found that federal officials do not have a shared understanding of strategic governmentwide priorities. This report recommended, among other things, the clear establishment of federal strategic climate change priorities, including the roles and responsibilities of the key federal entities, taking into consideration the full range of activities within the federal climate change enterprise. In other reports, we also noted the need for improved coordination of climate- related activities. For example, our April 2010 report on environmental satellites concluded that gaps in satellite coverage, which could occur as soon as 2015, are expected to affect the continuity of important climate and space weather measurements. In that report, we stated that, despite repeated calls for interagency strategies for the long-term provision of environmental data from satellites (both for climate and space weather purposes), our nation still lacks such plans. Of particular importance in adaptation are planning decisions involving physical infrastructure projects, which require large capital investments and which, by virtue of their anticipated lifespan, will have to be resilient to changes in climate for many decades. The long lead time and long life of large infrastructure investments require such decisions to be made well before climate change effects are discernable. Our ongoing work for the Senate Committee on Environment and Public Works Subcommittee on Oversight and Subcommittee on Transportation and Infrastructure will explore this issue by reviewing the extent to which federal, state, and local authorities consider the potential effects of climate change when making infrastructure investment decisions. Chairman Begich, Ranking Member Snowe, and Members of the Subcommittee, this concludes my prepared statement. I would be happy to respond to any questions that you or other Members of the Subcommittee may have. For further information about this testimony, please contact David Trimble at (202) 512-3841 or trimbled@gao.gov. Contact points for our Congressional Relations and Public Affairs offices may be found on the last page of this statement. Barb Patterson, Anne Hobson, Richard Johnson, Ben Shouse, Jeanette Soares, Kiki Theodoropoulos, and Joseph Dean “Joey” Thompson also made key contributions to this statement. This is a work of the U.S. government and is not subject to copyright protection in the United States. The published product may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.

Climate change is a complex, crosscutting issue that poses risks to many existing environmental and economic systems, including agriculture, infrastructure, ecosystems, and human health. A 2009 assessment by the United States Global Change Research Program (USGCRP) found that climate-related changes--such as rising temperature and sea level--will combine with pollution, population growth, urbanization, and other social, economic, and environmental stresses to create larger impacts than from any of these factors alone. According to the National Academies, USGCRP, and others, greenhouse gases already in the atmosphere will continue altering the climate system into the future, regardless of emissions control efforts. Therefore, adaptation--defined as adjustments to natural or human systems in response to actual or expected climate change--is an important part of the response to climate change. This testimony addresses (1) the data challenges that federal, state, and local officials face in their efforts to adapt to a changing climate, (2) the actions federal agencies could take to help address these challenges, and (3) federal climate change strategic planning efforts. The information in this testimony is based on prior work, largely on GAO's recent reports on climate change adaptation (GAO-10-113) and federal climate change funding (GAO-11-317). These reports are based on, among other things, analysis of studies, site visits to areas pursuing adaptation efforts, and responses to a web-based questionnaire sent to federal, state, and local officials. As GAO reported in October 2009, challenges from insufficient site-specific data--such as local projections--make it hard for federal, state, and local officials to predict the impacts of climate change, and thus hard to justify the current costs of adaptation efforts for potentially less certain future benefits. Based on responses from a diverse array of federal, state, and local officials knowledgeable about adaptation, related challenges generally fit into two main categories: (1) translating climate data--such as projected temperature and precipitation changes--into information that officials need to make decisions and (2) the difficulty in justifying the current costs of adaptation with limited information about future benefits. Federal actions to provide and interpret site-specific information would help address data challenges associated with adaptation efforts, based on responses to GAO's web-based questionnaire sent to federal, state, and local officials and other materials analyzed for its October 2009 report. In addition to several potential federal actions identified as useful by respondents to GAO's questionnaire, including the development of state and local climate change vulnerability assessments, GAO's 2009 report also contained information about the creation of a federal climate service. Specifically, about 61 percent (107 of 176) of respondents rated the "creation of a federal service to consolidate and deliver climate information to decision makers to inform adaptation efforts" as very or extremely useful. Respondents offered a range of potential strengths and weaknesses for such a service. For example, several respondents stated that a climate service would help consolidate information and provide a single information resource for local officials. However, some respondents to GAO's questionnaire voiced skepticism about whether it was feasible to consolidate climate information, and others stated that such a service would be too rigid and may get bogged down in lengthy review processes. GAO has not made recommendations regarding the creation of a climate service within the National Oceanic and Atmospheric Administration or any other agency or interagency body. Federal strategic planning efforts could be improved for many aspects of the climate change enterprise. For example, GAO's October 2009 report on climate change adaptation concluded that, to be effective, related federal efforts must be coordinated and directed toward a common goal. This report recommended the development of a strategic plan to guide the nation's efforts to adapt to a changing climate, including the identification of mechanisms to increase the capacity of federal, state, and local agencies to incorporate information about current and potential climate change impacts into government decision making. Some actions have subsequently been taken to improve federal adaptation efforts, but GAO's May 2011 report on climate change funding found that federal officials do not have a shared understanding of strategic governmentwide priorities.

The attacks of September 11, 2001, heightened interest in port and maritime security. Much of this interest has focused on cargo container ships because of concern that terrorists could use containers to transport weapons into the United States, yet only a small fraction of the millions of cargo containers entering the country each year is inspected. Some fear that a container-borne atomic bomb detonated in a U.S. port could wreak economic as well as physical havoc. Robert Bonner, former head of Customs and Border Protection (CBP) in the Department of Homeland Security (DHS), has argued that such an attack would lead to a halt to container traffic worldwide for some time, bringing the world economy to its knees. Stephen Flynn, a retired Coast Guard commander and an expert on maritime security at the Council on Foreign Relations, holds a similar view. While container ships accounted for 30.4% of vessel calls to U.S. ports in 2005, other ships carried crude oil (12.9%), dry bulk cargo (18.7%), and vehicles (6.0%), among other things. These ships merit attention as well because terrorists will look for the weak link. The 9/11 Commission stressed the importance of a balanced approach to maritime security. To this end, this report focuses on the threat of a terrorist nuclear attack using oil tanker ships. This threat is of particular interest because the Middle East is the chief source of anti-U.S. terrorism. Crude oil and other petroleum products account for almost all export earnings of many Middle Eastern nations. In turn, 28.8% of net U.S. crude oil imports in September 2006 came from the Middle East. Crude oil from the Middle East went to 30 U.S. ports in 2003. Those handling the most oil were Blaine, WA; El Segundo, Long Beach, Los Angeles, and Richmond, CA; Corpus Christi, Freeport, Galveston, Houston, Port Arthur, and Texas City, TX; Baton Rouge, Gramercy, Lake Charles, Morgan City, and New Orleans, LA; Pascagoula, MS; Mobile, AL; Wilmington, DE; and Paulsboro, NJ. Crude oil from the Middle East is typically shipped to the United States in supertankers—Very Large Crude Carriers (VLCCs) and Ultra Large Crude Carriers (ULCCs). Their size is measured in deadweight tons (DWT), the weight of the stores, fuel, and cargo they can carry. One DWT is 2,240 lb. While definitions vary slightly, VLCCs can carry about 200,000 to 300,000 DWT and ULCCs can carry more than 300,000 DWT. Crude oil accounts for almost all of the deadweight tonnage of such ships. A representative ULCC was 60 meters wide and 350 meters long, and had a draft (depth below the waterline) of 22 meters. They are the largest ships ever built. The interior of a tanker is divided into multiple storage tanks. Both the Coast Guard and the Navy stated that they do not have responsibility for, or authority over, security of foreign-flagged vessels at foreign ports. Nor do other American forces. Security of foreign ports rests with foreign governments. The simplest type of atomic bomb, and by far the easiest to fabricate, is a gun-assembly bomb, in which one mass of uranium highly enriched in the fissile isotope 235 (highly enriched uranium, or HEU) is shot down a tube into another mass of HEU, forming a critical mass and causing a nuclear explosion. The Hiroshima bomb was of this type; its designers had such confidence in the design that it was not tested before use. This bomb had an explosive yield of 15 kilotons (equivalent to 15,000 tons of TNT). Excluding the bomb's outer casing, fins, and fuses, this device was 6 feet long and about 6 inches in diameter, and weighed about 1,000 pounds. Some items loaded onto large cargo ships are of similar or greater size and weight. It might be possible to make a lighter gun-assembly bomb. To stage a nuclear attack using a tanker, terrorists would need to acquire a nuclear device and smuggle it (or key components) onto a ship. Their ability to accomplish this latter task would likely depend on their ability to circumvent local security; on the reliability of security personnel in oil-exporting countries such as Saudi Arabia, Kuwait, and Algeria; and on the reliability of the ship's officers and crew. Terrorists might seek to place a nuclear device inside one of a tanker's oil tanks, which would require sealing and cushioning the bomb and possibly attaching it to the tank wall; or in a dry space on the ship; or in a blister attached to the ship underwater. Remotely detonating a bomb inside an oil tank or underwater might be difficult: it might not be possible to attach wires leading out to dry spaces, or to send an electromagnetic signal (e.g., a cell phone call) through water or oil to the bomb. Detonating the bomb with a timer would run the risk of the ship not being at the target at the specified time. Overcoming these challenges might be within the ability of a terrorist group resourceful enough to acquire an atomic bomb. Terrorists might also smuggle a bomb onto a ship at sea, as discussed later. Terrorists could be expected to select as their target a port that handled a large volume of oil and other goods and that had a densely-populated area that tankers passed on their way through a harbor to an unloading terminal. Various cities worldwide meet these criteria. If terrorists sought major economic damage while minimizing loss of life, they might target the Louisiana Offshore Oil Port, or LOOP, the only U.S. deepwater oil port that can handle fully loaded supertankers. LOOP, 18 miles off the Louisiana coast, handles about 10% of U.S. crude oil imports. The Panama Canal might be another potential economic target. Some means of detecting atomic bombs in a tanker would fail, especially for a bomb inside an oil tank. Gamma rays, essentially high-energy x-rays, are used to create x-ray-type pictures of the contents of cargo containers, but a tanker's huge mass of oil and steel would prevent gamma rays from traveling the width of a tanker. Neutrons may be used to detect fissile material; neutrons of the appropriate energy level cause such material to fission, producing neutrons and gamma rays that can be detected. The hydrogen atoms of crude oil, however, would block neutrons from penetrating. Other candidate techniques include chemical sampling of oil for traces of extraneous material, and preparing an acoustic profile of a ship when known to be "clean" to compare with a profile taken as the ship nears port. The vast amount of oil in a supertanker works against the former technique; the complex configuration of tanks on a tanker works against the latter. A more remote possibility, muon detection, might work if daunting technical challenges could be overcome. The difficulty of detecting a bomb aboard a tanker underscores the importance of keeping bombs off tankers. Securing tankers at loading terminals would likely involve a security perimeter (including underwater), and measures to ensure personnel reliability. Items brought on a ship would have to be screened. A National Nuclear Security Administration program, "Second Line of Defense," screens people and baggage for fissile material; similar technology might help secure tankers. Securing tankers in port might not be sufficient if terrorists could smuggle a bomb onto a ship at sea. It may be possible to improve security by using surveillance aircraft or satellites. Security may be a greater issue as tankers slow to navigate straits or approach port. Several issues arise: (1) Would shippers let crew spend time to upgrade security beyond current levels? VLCCs have small crews, perhaps 25 to 40 people, who may have no time for added tasks. (2) If intelligence data indicated a plot to board a tanker at sea to place a bomb, could a warning be passed without compromising U.S. intelligence capabilities? (3) This scenario would require the connivance of the entire crew, or silencing those who opposed the plot. Screening for personnel reliability may be the only defense against this prospect. Possible oversight questions include the following: How does the Administration view the potential for terrorists to use a tanker for a nuclear attack? To what extent has the Administration considered this threat in planning for port and maritime security? If considered a serious threat, what measures is the Administration implementing to respond to it? When will they be in place? How much funding is programmed for them over the next few years? Which areas of detection technology may merit development? Which executive branch office has overall responsibility for examining or addressing this potential threat? What other executive offices have responsibilities in this area? Is there adequate coordination among them? Congress might consider options such as the following to further explore the threat discussed in this report. Clarify federal responsibility for tanker security by requiring a lead federal agency for tanker security and making more explicit the responsibilities of various federal agencies involved in tanker security. Create a Tanker Security Initiative (TSI) analogous to the Container Security Initiative for improving containerized cargo security. TSI might set security standards for tankers that transport oil to U.S. ports, and for the ports where they load. Tankers not meeting the standards, or that come from ports not meeting the standards, could be denied entry to U.S. ports. Establishing such a regime would undoubtedly require negotiations with other countries. (See " Legislative Activities ," below.) Ensure that tankers are a focus of maritime domain awareness, which refers to surveillance and communication systems that would permit U.S. officials to have a comprehensive understanding at any given moment of the location and identity of ships at sea. Assure sufficient U.S. intelligence assets are focused on the threat and possible indications of preparations for such an attack. Terrorists seeking to acquire or build a bomb and smuggle it onto a tanker would need to go through certain steps. Similarly, a terrorist bomb placed inside a tank of crude oil might have certain signatures, such as a way to detonate the bomb. The Intelligence Community could analyze such steps and signatures, and be alert to signs of the most critical ones. Determine whether funding is adequate for technologies that hold some prospect of detecting an atomic bomb aboard a tanker. Keep oil tankers away from U.S. ports by promoting the construction of more offshore ports like LOOP. Improve international cooperation. Existing international agreements and organizations that might focus on tanker security include agreements for countering narcotics, crime, and piracy; the International Maritime Organization, shipping associations, and Interpol; and the International Ship and Port Facility Security Code. These efforts could supplement the Proliferation Security Initiative (PSI), a multilateral effort for interdicting ships at sea that are suspected of carrying weapons of mass destruction. Ships available for PSI missions might respond to indications of tanker security problems at sea. The United States could pursue increased bilateral cooperation with oil-exporting states and countries under whose flags tankers are registered. Potential measures include improved perimeter security at oil-loading terminals and more rigorous background screening and training of port workers and tanker crew members. Should Congress conclude that proactive steps should be taken in this area, the issues of who should pay and how funds should be collected would arise. Costs could be covered by general revenues. Alternatives would be to charge a fee on ships landing oil in the United States or to impose a tax on crude oil or petroleum products consumed in the United States. Congress may also wish to consider whether the issues discussed here might apply to other types of ships, such as those for carrying cars or dry bulk goods. On January 24, 2005, S. 12 , Targeting Terrorists More Effectively Act of 2005, was introduced and was referred to the Senate Committee on Foreign Relations. Section 325 provides for a Tanker Security Initiative under which "[t]he Secretary of Homeland Security shall establish a Tanker Security Initiative to promulgate and enforce standards and carry out activities to ensure that tanker vessels that transport oil, natural gas, or other materials are not used by terrorists or as carriers of weapons of mass destruction." As part of this initiative, the Secretary may develop standards to prevent terrorists from placing weapons of mass destruction on tankers, develop detection equipment and inspection procedures, conduct R&D on sensors to detect a nuclear device on a tanker, and aid foreign countries in carrying out provisions of this initiative. The legislation would also require the Secretary to submit a report to Congress on terrorism risks posed by tankers, means of combating this risk, and a proposed budget to carry out this initiative. This legislation was not reported from committee. Should the 110 th Congress undertake further consideration of the potential tanker/nuclear threat, issues that may garner attention include: (1) How might port security grant programs enhance tanker security? (2) Could imaging or radiation-detection systems available now, or deployable in the near future, significantly augment tanker security against this threat? (3) If so, is it worth the money to deploy them now, or would it be preferable to wait until more advanced systems were available? (4) If not, does the current R&D investment strategy consider tanker security, and what detection programs might be developed to do so? These questions might be raised as Congress oversees implementation of the SAFE Port Act, P.L. 109-347 .

While much attention has been focused on threats to maritime security posed by cargo container ships, terrorists could also attempt to use oil tankers to stage an attack. If they were able to place an atomic bomb in a tanker and detonate it in a U.S. port, they would cause massive destruction and might halt crude oil shipments worldwide for some time. Detecting a bomb in a tanker would be difficult. Congress may consider various options to address this threat. S. 12 , Targeting Terrorists More Effectively Act of 2005, included a Tanker Security Initiative (sec. 325). This report will be updated as needed.

RS21690 -- The Individuals with Disabilities Education Act (IDEA): Attorneys' Fees Provisions in Current Law andin H.R. 1350 as Passed by the House and Senate, 108th Congress Updated June 8, 2004 The Individuals with Disabilities Education Act (IDEA) (1) authorizes federal funding for the education of children with disabilities and requires, as a conditionfor the receipt of suchfunds, the provision of a free appropriate public education (FAPE). (2) The statute also contains detailed due process provisions to ensure the provision of FAPE andincludes a provisionfor attorneys' fees. Originally enacted in 1975, the act responded to increased awareness of the need to educatechildren with disabilities, and to judicial decisions requiring that statesprovide an education for children with disabilities if they provided an education for children without disabilities. The attorneys' fees provisions were added in 1986 by the HandicappedChildren's Protection Act, P.L. 99-372 . (3) Congress is presently considering reauthorizing IDEA. H.R. 1350 , 108th Congress, passed the House on April 30, 2003, by a vote of 251 to 171. On May 13, 2004, theSenate incorporated S. 1248 in H.R. 1350 and passed H.R. 1350 in lieu of S. 1248 by a vote of95 to 3. (4) Current Statutory Language Relating to Attorneys' Fees (5) Under current law, a parent may file a complaint with respect to the identification, evaluation, educational placement, provision of a free appropriate public education or placement in analternative educational setting. The parents then have an opportunity for an impartial due process hearing (6) with a right to appeal. (7) At the court's discretion, attorneys' fees may be awarded as part of the costs to the parents of a child with a disability who is the prevailing party. (8) Attorneys'fees are based on the ratesprevailing in the community and no bonus or multiplier may be used. There are specific prohibitions on attorneys'fees and reductions in the amounts of fees. Fees may not be awardedfor services performed subsequent to a written offer of settlement to a parent in certain circumstances including ifthe court finds that the relief finally obtained by the parents is not morefavorable to the parents than the offer of settlement. Also, attorneys' fees are not to be awarded relating to anymeeting of the Individualized Education Program (IEP) team unless themeeting is convened as a result of an administrative proceeding or judicial action or, at the state's discretion, for amediation. Current law specifically provides that an award ofattorneys' fees and related costs may be made to a parent who is the prevailing party if the parent was substantiallyjustified in rejecting a settlement offer. Attorneys' fees may bereduced in certain circumstances including where the court finds that the parent unreasonably protracted the finalresolution of the controversy; the amount of attorneys' feesunreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonablycomparable skill, reputation and experience; where the time spent andlegal services furnished were excessive considering the nature of the action or proceedings; and when the court findsthat the parent did not provide the school district with theappropriate information in the due process complaint. This information includes the name of the child, the child'saddress and school, a description of the problem, including factsrelating to the issue, and a proposed resolution to the problem. (9) The attorneys' fees provisions in H.R. 1350 would change the determination of the amount of attorneys' fees by requiring the Governor, or other appropriate state official, todetermine rates. As discussed above, under current law, attorneys' fees are determined by the court hearing the case. More specifically, H.R. 1350 would amend current law by changing the general statement under current law that attorneys' fees may be awarded at the court's discretion toread: "Fees awarded under this paragraph shall be based on rates determined by the Governor of the State (or otherappropriate State official) in which the action or proceeding arose forthe kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded underthis subsection." In addition, the amendment provides that theGovernor or other appropriate official shall make these rates available to the public on an annual basis. The otherprovisions of current law regarding the prohibition of attorneys' fees incertain situations, the exception to this prohibition, and the reduction of attorneys' fees in certain circumstances werenot amended. The House report discussed the proposed attorneys' fee provision noting that "the Committee remains concerned about excessive litigation under the act and the burden that localeducational agencies face in paying fees to attorneys." (10) The report noted that the Governor may take the geographic differences in a state into account andencouraged the Governor tomake the established rates public prior to the beginning of the school year. This provision was described in thereport as helping to "restore balance to the proceedings under this Act andcontinue to provide early opportunities for schools and parents to foster more cooperative partnerships and resolveproblems." (11) However, the attorneys' fees provision in H.R. 1350 has been criticized. The minority views in the committee report argued for removal of the language stating: "There is noquestion that this will limit access to knowledgeable and experienced legal representation by the people who needit the most-low income, inexperienced parents seeking to obtain thebest education for their children with disabilities." (12) The Senate bill would keep the same general framework as is in current law; a federal district court may, in its discretion, award reasonable attorneys' fees as part of the costs to theparents of a child with a disability who is the prevailing party. However, <108>the Senate bill would make somechanges. The Senate bill would add a requirement for apreliminary meeting prior to a due process hearing to provide an opportunity to resolve the complaint and the billspecifically provides that attorneys' fees are not available for thispreliminary meeting. In addition, the bill would add language to the provision on the reduction of attorneys' feesclarifying that if the parents' attorney does not provide the requiredinformation to the local educational agency, the court shall reduce the attorneys' fees. The Senate bill would add a new subsection specifically allowing parents to represent their children in court. Generally, an individual has a right to proceed as his or her own counsel infederal court. (13) Rule 17 of the Federal Rules ofCivil Procedure precludes minors from proceeding pro se although a representative or guardian maysue on the minor's behalf. However, several circuits have held that the right to proceed pro se in federal court does not give parentswho are not attorneys the right to represent their children. (14) The IDEA casesthat have specifically addressed this issue have generally found that parents cannot proceed pro se onbehalf of their child. (15) The leading case is Collinsgru v. Palmyra Board ofEducation where the third circuit held that "parents seeking to enforce their child's substantive right to anappropriate education under the IDEA may not represent their child in federalcourt." (16) However, in a detailed examination ofthe issue, the first circuit declined to follow Collinsgru. In Maroni v. Pemi-Baker RegionalSchool District, the court held that parentsdo have procedural and substantive rights under IDEA since they are "parties aggrieved" because they are able torequest due process hearings "and thus are logically within the groupsof 'parties aggrieved' given the right to sue." (17) The Senate bill does not state whether or not parents who represent their children in court have a right to attorneys'fees. Generally,under current law, even if the parent is a licensed attorney, attorneys' fees have not been allowed in pro se cases. (18) An amendment on attorneys' fees was agreed to on the Senate floor which would allow the court to award fees to a SEA or LEA against the attorney of a parent or a parent in certaincircumstances. The attorney of a parent may be required to pay the SEA's or LEA's fees if he or she files a complaint that is frivolous, unreasonable, or without foundation, continues to litigate when the litigation clearly became frivolous, unreasonable or without foundationor if the complaint or subsequent cause of action was presented for any improper purpose, such as toharass or to cause unnecessary delay or needless increase in thecost of litigation. Like the provision relating to attorneys, the parent of a child with a disability who files a complaint may be required to pay the SEA's or LEA's attorneys' fees if the complaint orsubsequent cause of action was presented for any improper purpose, such as to harass or to cause unnecessary delayor needless increase in the cost of litigation. The Senate bill alsoincluded a provision that nothing in the subparagraph shall be construed to affect the attorneys' fees provisionsapplicable to the District of Columbia. In the Senate debate on the attorneys' fees amendment, Senator Grassley stated that the amendment would "in no way limit or discourage parents from pursuing legitimate complaintsagainst a school district if they feel their child's school has not provided a free appropriate public education. It wouldsimply give school districts a little relief from abuses of the dueprocess rights found in IDEA and ensure that our taxpayer dollars go toward educating children, not lining thepockets of unscrupulous trial lawyers." (19) SenatorGregg also emphasizedthe need for the attorneys' fee amendment. He noted that the concept that a defendant should be able to obtainattorneys' fees when a plaintiff's actions were "frivolous, unreasonable, orwithout foundation" has been applied to title VII of the Civil Rights Act of 1964. The Supreme Court in Christiansburg Garment Co. v. Equal Employment Opportunity Commission (20) held that prevailing defendants should recover attorneys' fees when a plaintiff's actions were frivolous, unreasonable,or without foundation in order to "protect defendants fromburdensome litigation having no legal or factual basis." (21) Senator Gregg observed that the standard is "very high...and prevailing defendants are rarely ableto meet it and obtain areimbursement of their attorneys fees" and that case law "directs courts to consider the financial resources of theplaintiff in awarding attorney's fees to a prevailing defendant." (22) The attorneys' fee amendment also would allow defendants to recover fees if lawsuits were brought for an improper purpose. Senator Gregg noted that this concept was drawn fromRule 11 of the Federal Rules of Civil Procedure (23) and that "in interpreting this language from Rule 11, courts must apply an objective standard of reasonableness tothe facts of thecase." (24)

The Individuals with Disabilities Education Act (IDEA) authorizes federal funding forthe education of children with disabilities andrequires, as a condition for the receipt of such funds, the provision of a free appropriate public education (FAPE).The statute also contains detailed due process provisions to ensure theprovision of FAPE and includes a provision for attorneys' fees. Congress is presently considering reauthorizing IDEA. H.R. 1350, 108th Congress, passed the House onApril 30, 2003, by a vote of 251 to 171. On May 13, 2004, the Senate incorporated S. 1248 in H.R. 1350and passed H.R. 1350 in lieu of S.1248 by a vote of 95 to 3. This report will discuss current IDEA provisions on attorneys' fees and the differingprovisions in the House and Senate bills. This report will not beupdated.

RS20787 -- Army Transformation and Modernization: Overview and Issues for Congress Updated March 11, 2004 Modernization is not a new issue or objective for U.S. military forces, but it has taken on new urgency because of: the post-Cold War downsizing andprocurement reductions, the new global environment and unexpected requirements, and the promise of a "revolutionin military affairs" (RMA) suggested byrapid developments in computers, communications, and guidance systems. The last notable surge in modernizationculminated during the "Reagan build-up" ofthe 1980's. Weapons and doctrines developed and fielded in that era made fundamental contributions to UnitedStates successes in the Cold War, the Gulf War,and Kosovo. For the Army, such weapons included the M1 Abrams tank, M2 Bradley armored fighting vehicle,Apache attack helicopter, Blackhawk utilityhelicopter, and Patriot air defense system. During post-Cold War downsizing, the Army greatly decreased purchase of new equipment and largely deferred development of a next generation of weapons,with notable exceptions being R&D for a howitzer, the Crusader, and a reconnaissance helicopter, theComanche. (1) Much older equipment was retired. Modernization was approached through upgrading and inserting new technologies into previously acquired"legacy," systems. Information technology wasseen as the most immediate, promising aspect of RMA. It exploited Desert Storm successes such as pinpointtargeting and navigation, while addressingproblems such as friendly fire casualties. A major initiative was launched in the 1990's to create Army Force XXI,based on the "digitization" of thebattlefield, now dubbed "network-centric warfare." Modern computers and communications systems would connectall weapons systems and give U.S. soldiersand commanders advantages in situational awareness and speed of decisions. (2) One heavy, mechanized division at Fort Hood, TX was so equipped in 2001and was battle tested in Iraq in 2003. Other units were at least partially equipped and trained with this capabilitybefore commitment in Iraq. Even before Desert Storm, the "battlefield" was changing as the Army was called upon to respond to numerous, lengthy operations short of war rather thanoccasionally to defeat a large army. Near-term readiness became a problem as fewer troops were asked to covermore missions, and operation and maintenance(O&M) funds were diverted from fixing aging equipment and facilities to pay for unbudgeted deployments suchas Bosnia (funds eventually replaced in part byemergency supplemental appropriations). The problem of rapidly projecting heavy forces had been highlightedbeginning with the long buildup required for Desert Shield/Desert Storm in 1990-91. In 1999, it was suggested that an Army task force inserted intoAlbania for potential action in Kosovo was too heavyfor rapid air insertion and the unimproved roads and bridges found there. The Army determined that a newcapability was needed in addition to mobile, lightforces and heavy, lethal forces - a medium, lethal force. In October 1999, the Army announced its priority program to transform into a force that could better meet future requirements to be both rapidly deployable andlethal. The first step was near-term fielding of a new unit, first called the Interim Brigade Combat Team but nowcalled the Stryker Brigade Combat Team(SBCT), based on a wheeled armored vehicle much lighter than the standard M2 Bradley. For the long-term, theArmy is developing a Future Combat System(FCS) based on new technologies that would equip very mobile formations with lethality and survivability equalor greater than that of present heavy units. Until the FCS is fielded, the Army believes it must also continue to maintain and upgrade legacy weapons systems(e.g., M1, M2, etc.) and equipment in unitsthat can meet any potential foe across the spectrum of conflict. These Legacy, Interim, and Objective Forces wouldeventually meld into the transformedObjective Force of the future. In Summer of 2003, the new Army Chief of Staff emphasized that the Army was atwar and transforming. The Current Forcewould incorporate usable technology and other ideas being developed for the Future Force without waiting, movingtowards the Future Force while fighting theGlobal War on Terrorism. He also began a short term reorganization of the active Army from 33 to 48 combatbrigade modules using existing resources and atemporary increase of 30,000 in soldier end strength. (4) Stryker Force. The Army is fielding a new capability based on the SBCT. This unit is designed formaximum strategic and operational mobility in that its equipment can be airlifted inter-theater in all U.S. cargoaircraft, including the comparatively smallC-130 Hercules. All vehicles weigh less than 20 tons. The goal is that a SBCT could be completely moved to acombat zone within 96 hours. It is an infantrybrigade of about 3,500 soldiers with the armored mobility needed to fight on a mid-intensity battlefield. Particularstrengths are an included reconnaissance andintelligence battalion and "network-centric" command, control, and communications (C3) systems. The effort beganearly in 2000 at Fort Lewis, WA, wheretwo existing brigades were converted, using temporary, borrowed equipment. In November, 2000 the Army selected the Light Armored Vehicle III (LAV III), built by General Motors Defense and General Dynamics Land Systems, as its"interim armored vehicle" under a six year contract worth $4 billion. (5) Some 2,131 LAV III's, now called Strykers, will be procured. They willinclude twovehicle variants, an infantry carrier with eight additional configurations and a mobile gun system with a 105 mmcannon. The vehicle can negotiate flatsurfaces at 62 mph, convert to 8-wheel drive off-road, and self-recover with its winch if needed. As of early 2004,the first Stryker Brigade was conductingstability operations in a sector of Iraq. Plans also include procurement of the Joint Lightweight 155 mm Howitzerfor the Brigade's included field artillery --an Army-Marine program, with an estimated cost of about $1.1 billion, aiming for Army initial operating capability(IOC) at the end of 2004. Future Force. For the long-term, the Defense Advanced Research Projects Agency and the Army beganwork on some 25 critical technologies for incorporation into R&D of new systems to be selected as early as2006, with fielding to begin by 2008 and IOC by2010. (6) A key component is expected to be a FutureCombat System (FCS) that could, as one capability, assume the role currently held by the Abrams tank. Itis intended to be as transportable and mobile as the Stryker, with lethality and crew survivability equivalent to orgreater than that of today's tanks. The FCSmay, however, bear little or no resemblance to today's tanks and could feature advanced technologies such asrobotics and electric guns and facilitate newoperational doctrines. The FCS currently encompasses some 18 subsystems and the network to tie them together. Boeing Company and Science ApplicationsInternational Corp. were selected as the lead system integrator. As of September 2002, the Army had budgeted $20billion to develop FCS. FutureForce units will also incorporate ongoing developments in information technology. They should respond to allrequirements from stability operations tohigh-intensity conflict. Current Force. Until the Future Force exists, the Army must be prepared to fight with legacy equipment,whether on low or high-intensity battlegrounds. According to Army planners, programs to replace and/or upgradeolder equipment must continue if forces otherthan or additional to 6 new Stryker Brigades are to be ready for combat. The ongoing program to replace old truckswill continue. Older models of the Abramstank and the Bradley fighting vehicles will continue to be rebuilt and upgraded. The current force will have manyM1A2 SEP (for Systems EnhancementPackage) and M1A1D tanks and M2A3 and M2A2ODS with applique Bradley's. Inserting these vehicles into theforce will aid the whole Army in convertingto a digitized force. Although modernization of the current force is important, the Army sacrificed manypreviously desired programs to free funds fortransformation priorities. Examples are a dedicated Command and Control vehicle, the Grizzly Breacher engineervehicle, and the Wolverine assault bridgevehicle. The 107th and 108th Congresses gave strong support to Army modernization and transformation initiatives. At the same time, Congress showed caution bypressing a requirement to compare the wheeled LAV III with similar tracked vehicles already in inventory. TheArmy believes its evaluation demonstrated thatbuying Stryker was more desirable than converting the M113A3 APC. (7) Whether the 108th Congress will continue to support Armytransformation as a highpriority will depend on its evaluation of issues such as those discussed below. Desirability. All Services have felt pressures to "transform," or at least adapt to current circumstances andexperiences with the post-Cold War world. These include opportunities and challenges from a rush of technologicaladvances, unexpected numbers and typesof missions (particularly peacekeeping and urban warfare requirements), new threats from potential enemies withnuclear, chemical, or biological weapons, and,for the Army, criticism that it was not "nimble" enough during 1999 allied operations in Kosovo. The broadest long-term question is whether current transformation plans will yield the military forcecapabilities the United States requires 20 years from now. Should they include a power projection Army capable of fighting equally well across the full spectrum of groundcombat; or, should other services or entitiesassume some parts of that mission? Will Army plans over-stress DoD airlift assets, or would more reliance on fastsealift yield greater flexibility andeconomies? Internally, has the Army sought the right approach to transformation with its emphasis onmedium-weight formations? Does the Army's planstrike the right balance in allocating resources between modernizing the current legacy force and developing andfielding the Future Force? For the short term, it is projected that some amount of modernization for current forces is needed to prevent further aging and degradation. The average age ofthe M1 tank fleet is now 11.9 years and an estimated 11.7 years for support vehicles. (8) Many of these vehicles may not be able to remain in service beyond2030 without some form of service life extension. Deciding the proper allocation of resources is made morecomplex by the large numbers and diverse typesof vehicles and weapons systems in the Army, which makes it difficult to gather and present desirable data, that isboth comprehensive and aggregated, onequipment age, condition, and potential combat effectiveness. The Navy, in managing a fleet of about 315 ships,may have an easier job describing the level ofinvestment needed to maintain a fleet of a given size over time. (9) Congress may consider recommending that the Army attempt to develop some aggregateportrayal of its fleet capitalization status and implications of various funding strategies. Feasibility. The Army plan for transformation is considered aggressive. But, by using largely off-the-shelfmateriel, the "interim Stryker force is fairly low risk for meeting technology objectives. After an initial slip of 16months, a contractor's protest, and initialhesitation by the incoming Bush Administration, deliveries of Strykers are now supporting the fielding of 6 SBCTs,to be completed by May 2010. (10) Plans for the Future Force involve higher risk in both technology and time. It is possible that integration of all the specific FCS technologies into a leap-aheadsystem will experience some problems. The goal of fielding the first unit of this system of 18 systems by 2010 isvery ambitious. (11) Previoussystem-development efforts of this kind have often encountered technical problems, schedule problems, or both. The need for the Comanche helicopter, forexample, was identified in 1979 and it had not yet entered production when cancelled in 2004. The original targetdate proposed for FCS, 2023, may be morerealistic but it also raised concerns regarding duration of development. Congress will likely influence the priorityand speed with which the FCS becomesreality. Affordability. Some question the Army's ability to finance its transformation plan, particularly given aninability in recent years to finance many procurement programs at desired rates. Can the Army adequately financeall three elements of its plan at once, whilealso providing adequate funds for necessary non-transformation priorities such as readiness and pay and benefits? The life-cycle cost for equipping 6 brigadeswith LAV III's has been estimated by program officials at $9 billion through FY2032. (12) This will only be part of the total cost to transform and modernize theArmy; some have estimated that the Army requires a sustained increment of $10 billion annually beyond its averagepost-Cold War expenditures for R&D andprocurement. The Army is not alone in claiming a need for more investment funds. Other Services cite even highernumbers. (13) An issue that will confront Congress is whether to fund Army transformation and modernization efforts at levels proposed by the Bush Administration, orhigher or lower. If Congress ascribes a higher priority to Army transformation, will necessary funds be providedby adding to overall DoD appropriations,subtracting from DoD programs in other services, or reducing deployments? During the FY2003 budget cycle, DoD expressed its intent to cut acquisition programs that do not meet its definition of "transformational" in favor of those thatdo. Its prime example was the Army's Crusader Howitzer program. DoD cut Crusader and allocated the savingsto several other advanced fire support systemsin development. Congress reluctantly endorsed the action with the proviso that Crusader expertise be rolled intothe FCS program. As part of its appropriationsresponsibilities, the 108th Congress may choose to enforce DoD's implied promise to supportadequately fire support throughout the FCS developmentprogram. (14) Wheels or Tracks and How Many Stryker Brigades? An early issue to confront the Army was whether theInterim Force should use tracked or wheeled armored vehicles, or some combination. (15) Traditionally, the U.S. Army has favored tracks for its combatvehicles; with their low ground pressure and greater traction, they generally perform better off roads on difficultterrain. Wheels generally perform better onroads in terms of speed, agility, and quietness. After reviewing proposals, the Army selected the wheeled LAV IIIfrom General Motors, and named it Stryker. Critics of the decision, including some current and former members of Congress, continue to argue for a reversalor curtailment of the Stryker decision. (16) TheArmy defends its case strongly and DoD has not intervened. The question of whether the FCS will be based onwheels, tracks, or a combination remains open. DoD has, however, raised questions about the ultimate number and stationing of SBCT's. In the past, it requested the Army consider stationing one of the sixunits in Europe and thhe first one is now on station in Europe. More recently it suggested that units five and sixnot be funded unless they could be "spiraldeveloped" into much more transformational formations. It appears, however, that funding for all 6 SBCT's willnow be requested. The combination of theseevents and considerations could, however, open prior decisions to station SBCT's in Hawaii and Alaska to debateand thus create political complications. (17) The 108th Congress may play an important role in resolving the ultimate disposition of the proposedSBCT Force.

The U.S. Army continues an ambitious program intended to transform itself into astrategically responsive forcedominant in all types of ground operations. As planned, its Future Force will eventually meld all ongoing initiativesinto a force based on a high-tech FutureCombat System (FCS). Its Current Force is beginning to provide a new combat capability, based oncurrent-technology armored vehicles, for the mid-intensitycombat operations that seem prevalent in today's world. Its current "legacy force" of existing systems is beingmodernized and maintained to ensure effectivelight and heavy force capabilities until the Future Force is realized. This short report briefly describes the programand discusses issues of feasibility, viability,and affordability of potential interest to Congress. It will be updated as events warrant.

Since the mid-1950s, Congress has added numerous provisions to the Public Health Service Act (PHSA) that authorize education and training programs for various health, medical, and nursing professionals. The programs, consolidated in Title VII and Title VIII of the PHSA, provide grants, scholarships, and loans to individuals and institutions in order to increase the supply of professionals in health care, medicine, and nursing. Title VII programs support individuals who study to become primary care physicians, dentists, public health, and allied health professionals. Also, institutions that train these individuals are eligible for grants to support the development of education and training opportunities through endeavors such as multidisciplinary collaborative efforts and community partnerships. Title VIII programs support individuals in the study of nursing and enhance the ability of institutions to sustain nursing workforce programs. Major health reform legislation enacted in 2010 includes amendments to Title VII and Title VIII that add, delete or modify program authorities. The Health Resources and Services Administration (HRSA) in the Department of Health and Human Services (HHS) administers Title VII and Title VIII programs. Discretionary funding for these programs is provided in the annual appropriations act for the Departments of Labor, HHS, and Education (Labor-HHS-ED). The FY2010 enacted appropriations for Title VII and Title VIII programs are $254.1 million and $243.9 million, respectively, for a total of $498.0 million. In addition, a portion of the supplemental funds provided through the American Recovery and Reinvestment Act of 2009 (ARRA) is available for FY2010. Major provisions enacted in the Patient Protection and Affordable Care Act (PPACA) amended Title VII and Title VIII of the PHSA to revise existing authorities or create new ones. Implementation of the discretionary programs authorized in PPACA will depend on future appropriations actions. After reviewing the status of authorizations for Title VII and Title VIII programs, this report summarizes the appropriations history for the period from FY2001 through FY2010, together with the FY2011 President's budget request. Table 1 provides an appropriations history for Title VII; Table 2 , an appropriations history for Title VIII; and Table 3 , a consolidation of program totals for Title VII and Title VIII. Appendix A provides details about plans within HRSA to distribute ARRA funds in FY2009 and FY2010 for Title VII and Title VIII programs. Appendix B summarizes the sections of PPACA that amend various sections in Title VII and Title VIII of the PHSA. Before PPACA was enacted in March 2010, statutory authorities for Title VII and Title VIII programs had been amended numerous times since their initial passage. For Title VII, the Health Education Partnerships Act of 1998 ( P.L. 105-392 ) had been the most recent reauthorizing legislation, authorizing appropriations for many programs through FY2002. The same law also extended appropriations authority for most Title VIII programs through FY2002. Subsequently, authorizations for some, but not all, Title VIII programs had been extended through FY2007 in the Nurse Reinvestment Act of 2002 ( P.L. 107-205 ). In the 111 th Congress, multiple provisions of PPACA added, eliminated, or revised program authorities in each of Title VII and Title VIII, including new or extended authorization of appropriations for selected programs (see Appendix B ). On February 1, 2010, President Barack Obama presented the FY2011 budget, requesting a total of $503.9 million for Title VII and Title VIII programs. The amount is an increase of $5.9 million (1.2%) above the $498.0 million enacted in the FY2010 appropriations for these programs. The FY2010 enacted appropriations for Title VII and Title VIII programs are $254.1 million and $243.9 million, respectively. PPACA provided no supplemental FY2010 appropriations for Title VII and Title VIII programs. For FY2009, Congress appropriated funds for Title VII and Title VIII programs in two separate enactments. Regular appropriations of $392.7 million were provided in the FY2009 Omnibus Appropriations Act. A supplemental appropriation of $200 million for health, medical, and nursing workforce programs was added by ARRA. Of that $200 million, the Secretary has allocated $148.5 million to Title VII and Title VIII programs, and $50 million for equipment to enhance the training of health professionals. Unlike regular appropriations, most ARRA funds are available for obligation over two fiscal years, through September 30, 2010. As shown in Appendix A , HRSA obligated about one-third ($68.2 million) of the $200 million in FY2009, leaving about two-thirds ($131.8 million) for obligation in FY2010. President Obama's FY2011 budget request would provide a total of $260.0 million for Title VII programs, representing an increase of $5.9 million (2.3%) above the FY2010 appropriation of $254.1 million. All currently funded programs would receive level funding, except for the Workforce Information and Analysis program, which would be increased from $2.8 million to $8.8 million. Table 1 presents Title VII appropriations for health and medical professions training programs for the period from FY2001 through FY2010, together with President Obama's FY2011 budget request. During the period from FY2001 through FY2010, total annual appropriations for Title VII programs fluctuated significantly, from a high of $308.4 million in FY2003 to a low of $145.1 million in FY2006. Throughout much of this period, the George W. Bush Administration sought to eliminate funds for most Title VII programs, but Congress generally restored funding. Funding for several progams was eliminated starting in FY2006, including Health Education and Training Centers, Workforce Information and Analysis, and Health Administration Traineeships and Special Projects. However, Workforce Information and Analysis received renewed funding in FY2010. President Obama's FY2011 budget request would provide $243.9 million for Title VIII programs, which is equal to the FY2010 enacted appropriation. The request would maintain current levels of funding for each of six authorized programs. Table 2 presents Title VIII appropriations for nursing programs from FY2001 through FY2010, together with President Obama's FY2011 budget request. During the period from FY2001 through FY2009, appropriations for Title VIII programs increased by 104%, from $83.8 million to $171.0 million. In the FY2010 appropriation, Congress boosted Title VIII funding by an additional 43% over the FY2009 regular appropriation. The Public Service Announcements program (PHSA Sections 851 and 852) is the only program authorized in P.L. 107-205 that has received no funding. Table 3 compiles total appropriations for Title VII and Title VIII programs for FY2001 through FY2010, and shows President Obama's FY2011 budget request. Appendix A details HRSA's planned obligations of $200 million in ARRA funding over FY2009 and FY2010. Appendix B summarizes the sections of the health care reform legislation that added, deleted or modified selected authorities in Title VII and Title VIII. Appendix A. Allocation of Stimulus Funds Appropriated for HRSA Health Professions Programs in the American Recovery and Reinvestment Act of 2009 ( P.L. 111-5 ) Appendix B. Sections of Patient Protection and Affordable Care Act (PPACA) that Amend Authorities in Title VII and Title VIII of the Public Health Service Act (PHSA)

The Public Health Service Act (PHSA) establishes authority for the Secretary of Health and Human Services (HHS) to develop and implement workforce programs authorized in Title VII (health and medicine) and Title VIII (nursing). These programs, administered by the Health Resources and Services Administration (HRSA), provide grants, scholarships, and loans to support institutions and individuals in developing and sustaining the health workforce. Before passage of health care reform legislation in March 2010, appropriations authority for all Title VII and Title VIII programs had expired. Congress had nonetheless continued to appropriate funds for the programs. During the period from FY2001 through FY2010, total annual appropriations for Title VII programs fluctuated from a high of $308.4 million in FY2003 to a low of $145.1 million in FY2006. For Title VIII programs, during the period from FY2001 through FY2009, the annual appropriation increased from $83.8 million to $171.0 million. In the FY2010 appropriation, Congress boosted Title VIII funding by an additional 43% over the previous year. For FY2009, Congress appropriated funds for Title VII and Title VIII programs through two separate enactments. The Omnibus Appropriations Act, 2009 (P.L. 111-8) provided $392.7 million in regular appropriations. The American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5) added a supplemental appropriation of $200 million to be obligated over two years. Of this total, $148.5 million has been applied to Title VII and Title VIII programs; remaining funds are expected to be obligated for related activities (see Appendix A). For FY2010, Congress appropriated $498.0 million for Title VII and Title VIII programs, an increase of 26.8% over the regular FY2009 appropriations. President Barack Obama's FY2011 budget contains a request of $503.9 million for Title VII and Title VIII programs, a 1.2% increase above the regular FY2010 appropriations. The FY2011 request would provide level funding for almost all Title VII and Title VIII programs. This report provides a history of appropriations for programs in Title VII and Title VIII of the PHSA. It includes a summary of new authorizations for these two titles, as enacted in major health reform legislation, the Patient Protection and Affordable Care Act, P.L. 111-148 (see Appendix B).

Mr. Chairman and Members of the Subcommittee: I am pleased to be here today to discuss the Office of National Drug Control Policy (ONDCP). My testimony focuses on (1) our recent work on federal drug control efforts; (2) ONDCP’s efforts to implement performance measures; (3) ONDCP’s anticipated actions to lead the development of a centralized lessons-learned data system for drug control activities; and (4) whether ONDCP, which is scheduled to expire in September of this year, should be reauthorized. In 1988, Congress created ONDCP to better plan the federal drug control effort and assist it in overseeing that effort. ONDCP was initially authorized for 5 years—until November 1993. With the enactment of the Violent Crime Control and Law Enforcement Act of 1994 (P.L. 103-322 (1994)), ONDCP was reauthorized until September 30, 1997. ONDCP is responsible for overseeing and coordinating the drug control efforts of over 50 federal agencies and programs. ONDCP is also charged with coordinating and reviewing the drug control activities of hundreds of state and local governments as well as private organizations to ensure that the drug control effort is well coordinated and effective at all levels. Under the 1988 act, ONDCP is to (1) develop a national drug control strategy with short- and long-term objectives and annually revise and issue a new strategy to take into account what has been learned and accomplished during the previous year, (2) develop an annual consolidated budget providing funding estimates for implementing the strategy, and (3) oversee and coordinate implementation of the strategy by federal agencies. Since its inception, ONDCP has published nine annual national drug control strategies. “1. Educate and enable America’s youth to reject illegal drugs as well as the use of alcohol and tobacco. “2. Increase the safety of America’s citizens by substantially reducing drug-related crime and violence. “3. Reduce health and social costs to the public of illegal drug use. “4. Shield America’s air, land, and sea frontiers from the drug threat. “5. Break foreign and domestic sources of supply.” The administration’s drug control budget request for fiscal year 1998 is approximately $16 billion, an increase of $818 million over the 1997 budget. Approximately $5.5 billion is targeted for demand reduction, an increase of 10 percent over the 1997 budget and $10.5 billion for supply reduction, an increase of 3.2 percent over the 1997 budget. At the request of the Chairman, Subcommittee on Transportation and Related Agencies and the Chairman, Subcommittee on Labor, Health and Human Services, and Education, House Committee on Appropriations, on the demand reduction side we recently identified findings of current research on promising approaches in drug abuse prevention targeted at school-age youth and described promising drug treatment strategies for cocaine addiction. On the supply reduction side, we summarized our recent work assessing the effectiveness of international efforts, including interdiction, to reduce illegal drug availability. demonstrated that both approaches have shown some success in reducing student drug use as well as strengthened individuals’ ability to resist drugs in both short- and longer-term programs. Three approaches have been found to be potentially promising in the treatment of cocaine use. These approaches include (1) avoidance or better management of drug-triggering situations (relapse prevention therapy); (2) exposure to community support programs, drug sanctions, and necessary employment counseling (community reinforcement/contingency management); and (3) use of a coordinated behavioral, emotional, and cognitive treatment approach (neurobehavioral therapy). Research shows that many drug dependent clients using these approaches have maintained extended periods of cocaine abstinence and greater retention in treatment programs. While these prevention and treatment approaches have shown promising outcomes in some programs, further evaluative research would have to be conducted to determine their effectiveness and their applicability among different populations in varied settings. Such research should help policymakers better focus efforts and resources in an overall drug control strategy. Regarding international drug control efforts, our work has shown that, despite some successes, efforts have not materially reduced the availability of drugs in the United States for several reasons. First, international drug trafficking organizations have become sophisticated, multibillion dollar industries that quickly adapt to new U.S. drug control efforts. Second, the United States faces other significant and long-standing obstacles, such as inconsistent funding, competing foreign policy objectives, organizational and operational limitations, and a lack of ways to tell whether or how well counternarcotics efforts are contributing to the goals and objectives of the national drug control strategy, and the resulting inability to prioritize the use of limited resources. Third, in drug-producing and transit countries, counternarcotics efforts are constrained by competing economic and political policies, inadequate laws, limited resources and institutional capabilities, and internal problems such as terrorism and civil unrest. the Government Performance and Results Act (GPRA), we recently made several recommendations to the Director of ONDCP to better comply with the 1988 Anti Drug Abuse Act’s requirements. We recommended that ONDCP complete the development of a long-term plan with meaningful performance measures and multiyear funding needs that are linked to the goals and objectives of the international drug control strategy. In particular, such a plan would permit ONDCP to better carry out its responsibility to at least annually review the progress made and adjust its plan, as appropriate. Further, we recommended that ONDCP enhance support for the increased use of intelligence and technology to (1) improve U.S. and other nations’ efforts to reduce supplies of and interdict illegal drugs and (2) take the lead in developing a centralized lessons-learned data system to aid agency planners and operators in developing more effective counterdrug efforts. We have acknowledged for many years that performance measurement in the area of drug control has been difficult. In 1988 and again in 1990, we reported that (1) it was difficult to isolate the full impact and effectiveness of a single program, such as drug interdiction, on reducing drug use without considering the impact of prevention and treatment efforts; (2) the clandestine nature of drug production, trafficking, and use had limited the quality and quantity of data that could be collected to measure program success; and (3) the data that were collected—for example, the data used to prepare estimates of drug availability and consumption—were generally not designed to measure program effectiveness. In a 1993 report, we concluded that although difficulties, such as the interrelated nature of programs, may have precluded the development of “perfect” or “precise” performance measures, these difficulties should not have stopped antidrug policymakers from developing the best alternative measures—measures that could provide general indicators of what was being accomplished over the long term. We also reported in 1993 that ONDCP’s national strategies did not contain adequate measures for assessing the contributions of component programs for reducing the nation’s drug problems. In addition, we found little information on which to assess the contributions made by individual drug control agencies. As a result, we recommended that, as part of its reauthorization of ONDCP, Congress direct the agency to develop additional performance measures. In reauthorizing ONDCP in 1994, Congress specified that ONDCP’s performance measurement system should assess changes in drug use, drug availability, the consequences of drug use, drug treatment capacity, and the adequacy of drug treatment systems. Similarly, in our most recent report, we found it still difficult to assess the performance of individual drug control agencies. For example, increased Customs Service inspections and use of technology to detect drugs being smuggled through ports of entry may cause smugglers to seek other routes; this would put more pressure on drug interdiction activities of other agencies, such as the Coast Guard. We concluded that it was important to consider both ONDCP and operational agency data together because results achieved by one agency in reducing the use of drugs may be offset by less favorable results by another agency. According to ONDCP officials, around January 1994, they, in collaboration with the Department of Defense, entered into a contract with a private contractor to develop “measures of effectiveness” in the international arena. According to ONDCP officials, overall the results of the contractor’s efforts did not prove useful in developing performance measures for ONDCP. The efforts of the contractor were eventually abandoned, and in the summer of 1996 ONDCP began a new effort to develop performance measures for all drug control operations. The new effort relies on working groups, which consist of representatives from federal drug control agencies and state, local, and private organizations, to develop national drug control performance measures. According to ONDCP officials, early in 1997, the ONDCP working groups began developing performance targets (measurable milestones to track progress) and performance measures (the data used to track each target) for each of the objectives. As of April 1997, the plans for one of its five goals—“shield America’s air, land, and sea frontiers from the drug threat”—were ready for the Director’s approval, and they will be distributed to the affected agencies for agreement. ONDCP officials told us they are not yet that far along on the other four goals. As previously mentioned, we recently recommended in our report on international antidrug activities that ONDCP strengthen its planning and implementation of antidrug activities through the development of an after-action reporting system similar to the Department of Defense’s (DOD) system. Under DOD’s system, operations reports describe an operation’s strengths and weaknesses and contain recommendations for consideration in future operations. A governmentwide after-action system for reporting international antidrug activities should allow agencies to learn from the problems and impediments encountered internally and by other federal agencies in implementing past operations. With such information, the agencies would be in a better position to develop plans that avoid past problems or contingencies in known problem areas. This governmentwide after-action system should go a long way toward meeting ONDCP’s basic responsibility of taking into account what has been learned and accomplished during the previous year and adjusting its plan accordingly. As of April 15, 1997, ONDCP officials said they had not yet implemented this recommendation. According to these officials, ONDCP is currently preparing a formal response to the Subcommittee on National Security, International Affairs, and Criminal Justice, Committee on Government Reform and Oversight, explaining how it plans to implement this recommendation. Over the years, we have concluded there is a continuing need for a central planning agency, such as ONDCP, to coordinate the nation’s drug control efforts. Before ONDCP existed, we recommended in 1983 that the President make a clear delegation of responsibility to one individual to oversee federal drug enforcement programs to strengthen central oversight of the federal drug enforcement program. Again in 1988, we reported problems caused by the fragmentation of federal antidrug efforts among cabinet departments and agencies, and the resulting lack of coordination of federal drug abuse control policies and programs. In 1993, we concluded that given the severity of the drug problem and the large number of federal, state, and local agencies working on the problem, there was a continuing need for a central planning agency, such as ONDCP, to provide leadership and coordination for the nation’s drug control efforts. We recommended that Congress reauthorize ONDCP for an additional finite period of time. Coordinating the 5 goals of the national drug control strategy among more than 50 federal agencies is a complex process. Our analysis of federal agencies that contribute to the implementation of each of the 5 strategy goals showed an average of 21 agencies were committing resources to address specific strategy goals. For example, Goal 1 involves 18 agencies, Goals 2 and 3 involve 24, Goal 4 involves 13, and Goal 5 involves 28. Further, we found that more than 30 agencies are committing resources to implement two or more of the five strategy goals. Given the complexity of the issues and the fragmentation of the approach to the national drug control strategy among more than 50 agencies, we continue to believe there is a need for a central planning agency, such as ONDCP, to coordinate the nation’s drug control efforts. In addition, we have found no compelling evidence to lead us to advise against ONDCP’s reauthorization for a finite period of time. Mr. Chairman, this completes my statement. I would be pleased to answer any questions you or the other Subcommittee members might have. The first copy of each GAO report and testimony is free. Additional copies are $2 each. Orders should be sent to the following address, accompanied by a check or money order made out to the Superintendent of Documents, when necessary. VISA and MasterCard credit cards are accepted, also. Orders for 100 or more copies to be mailed to a single address are discounted 25 percent. U.S. General Accounting Office P.O. Box 6015 Gaithersburg, MD 20884-6015 Room 1100 700 4th St. NW (corner of 4th and G Sts. NW) U.S. General Accounting Office Washington, DC Orders may also be placed by calling (202) 512-6000 or by using fax number (301) 258-4066, or TDD (301) 413-0006. Each day, GAO issues a list of newly available reports and testimony. To receive facsimile copies of the daily list or any list from the past 30 days, please call (202) 512-6000 using a touchtone phone. A recorded menu will provide information on how to obtain these lists.

GAO discussed the Office of National Drug Control Policy (ONDCP), focusing on: (1) its recent work on federal drug control efforts; (2) ONDCP's efforts to implement performance measures; (3) ONDCP's anticipated actions to lead the development of a centralized lessons-learned data system for drug control activities; and (4) whether ONDCP, which is scheduled to expire in September 1997, should be reauthorized. GAO noted that: (1) its recent work shows that there are some promising initial research results in the area of demand reduction but that international supply reduction efforts have not reduced the availability of drugs; (2) GAO's work also shows that the nation still lacks meaningful performance measures to help guide decisionmaking; (3) GAO has acknowledged that performance measurement in the area of drug control is particularly difficult for a variety of reasons; (4) notwithstanding, GAO has concluded over the years that better performance measures than the ones in place were needed; (5) in 1993, GAO recommended that Congress, as part of its reauthorization of ONDCP, direct the agency to develop additional performance measures; (6) in reauthorizing ONDCP in 1994, Congress specified that ONDCP's performance measurement system should assess changes in drug use, drug availability, the consequences of drug use, drug treatment capacity, and the adequacy of drug treatment systems; (7) ONDCP's initial effort, with a private contractor, did not prove fruitful, and, in the summer of 1996, it began a new effort involving working groups composed of representatives from federal drug control agencies and state, local, and private organizations; (8) the working groups have been tasked with establishing performance measures for the goals set forth in the 1997 national strategy articulated by ONDCP; (9) as of April 15, 1997, no new measures had been approved by the ONDCP Director; (10) given the complexity of the issues and the fragmentation of the approach to the national drug strategy among more than 50 federal agencies, GAO continues to believe that there is a need for a central planning agency, such as ONDCP, to coordinate the nation's efforts; and (11) while it is difficult to gauge ONDCP's effectiveness given the absence of good performance measures, GAO has found no compelling evidence that would lead it to advise against ONDCP's reauthorization for a finite period of time.

To be legally obscene, and therefore unprotected by the First Amendment, pornography must, at a minimum, "depict or describe patently offensive 'hard core' sexual conduct." The Supreme Court has created the three-part Miller test to determine whether a work is obscene. The Miller test asks (a) whether the "average person applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. In Pope v. Illinois , the Supreme Court clarified that "the first and second prongs of the Miller test—appeal to prurient interest and patent offensiveness—are issues of fact for the jury to determine applying contemporary community standards." However, as for the third prong, "[t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole." In Brockett v. Spokane Arcades , the Supreme Court held that material is not obscene if it "provoke[s] only normal, healthy sexual desires." To be obscene it must appeal to "a shameful or morbid interest in nudity, sex, or excretion." The Communications Decency Act of 1996 ( P.L. 104 - 104 , § 507) expanded the law prohibiting interstate commerce in obscenity (18 U.S.C. §§ 1462, 1465) to apply to the use of an "interactive computer service" for that purpose. It defined "interactive computer service" to include "a service or system that provides access to the Internet." 47 U.S.C. § 230(e)(2). These provisions were not affected by the Supreme Court's decision in Reno v. ACLU declaring unconstitutional two provisions of the CDA that would have restricted indecency on the Internet. In Reno , the Court noted, in dictum, that "the 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." This suggested that, at least with respect to material on the Internet, the Court might replace the community standards criterion, except perhaps in the case of Internet services where the defendant makes a communication available only to subscribers and can thereby restrict the communities in which he makes a posting accessible. Subsequently, however, the Court held that the use of community standards does not by itself render a statute banning "harmful to minors" material on the Internet unconstitutional. Child pornography is material "that visually depict[s] sexual conduct by children below a specified age." It is unprotected by the First Amendment even when it is not obscene (i.e., child pornography need not meet the Miller test to be banned). The reason that child pornography is unprotected is that it "is intrinsically related to the sexual abuse of children.... Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies." Federal law bans interstate commerce (including by computer) in child pornography (18 U.S.C. §§ 2252, 2252A), defines "child pornography" as "any visual depiction" of "sexually explicit conduct" involving a minor, and defines "sexually explicit conduct" to include not only various sex acts but also the "lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256. In 1994, Congress amended the child pornography statute to provide that "lascivious exhibition of the genitals or pubic area of any person" "is not limited to nude exhibitions or exhibitions in which the outlines of those areas were discernible through clothing." 18 U.S.C. § 2252 note. Then, in the Child Pornography Prevention Act of 1996 (CPPA), Congress enacted a definition of "child pornography" that included visual depictions that appear to be of a minor, even if no minor was actually used. 18 U.S.C. § 2256(8). The statute thus banned visual depictions using adult actors who appear to be minors, as well as computer graphics and drawings or paintings done without any models. In Ashcroft v. Free Speech Coalition , the Supreme Court declared the CPPA unconstitutional to the extent that it prohibited pictures that were not produced with actual minors. Child pornography, to be unprotected by the First Amendment, must either be obscene or depict actual children engaged in sexual activity (including "lascivious" poses), or actual children whose images have been "morphed" to make it appear that the children are engaged in sexual activity. The Court observed in Ashcroft that statutes that prohibit child pornography that use real children are constitutional because they target "[t]he production of the work, not the content." The CPPA, by contrast, targeted the content, not the means of production. The government's rationales for the CPPA included that "[p]edophiles might use the materials to encourage children to participate in sexual activity" and might "whet their own sexual appetites" with it, "thereby increasing ... the sexual abuse and exploitation of actual children." The Court found these rationales inadequate because the government "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts" and "may not prohibit speech because it increases the chance an unlawful act will be committed 'at some indefinite future time.'" The government also argued that the existence of "virtual" child pornography "can make it harder to prosecute pornographers who do use real minors," because, "[a]s imaging technology improves ... it becomes more difficult to prove that a particular picture was produced using actual children." This rationale, the Court found, "turns the First Amendment upside down. The Government may not suppress lawful speech as a means to suppress unlawful speech." In response to Ashcroft , Congress enacted Title V of the PROTECT Act, P.L. 108 - 21 (2003), which prohibits any "digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct." It also prohibits "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that ... depicts a minor engaging in sexually explicit conduct," and is obscene or lacks serious literary, artistic, political, or scientific value. It also makes it a crime to advertise, promote, present, distribute, or solicit any material in a manner that reflects the belief, or that is intended to cause another to believe, that the material is child pornography that is obscene or that depicts an actual minor. The Adam Walsh Child Protection and Safety Act of 2006 ( P.L. 109 - 248 ) amended 18 U.S.C. § 2257, which requires by producers of material that depicts actual sexually explicit conduct to keep records of every performers' name and date of birth; it also enacted 18 U.S.C. § 2257A, which requires essentially the same thing with respect to simulated sexual conduct. The Effective Child Pornography Prosecution Act of 2007 ( P.L. 110 - 358 , Title I) and the Enhancing the Effective Prosecution of Child Pornography Act of 2007 ( P.L. 110 - 358 , Title II) expanded existing law by, among other things, making it applicable to intrastate child pornography violations that affect interstate or foreign commerce. P.L. 110 - 358 was signed into law on October 8, 2008. The Federal Communications Commission defines "indecent" material as material that "describe[s] or depict[s] sexual or excretory organs or activities" in terms "patently offensive as measured by contemporary community standards for the broadcast media." Indecent material is protected by the First Amendment unless it constitutes obscenity or child pornography. Except on broadcast radio and television, indecent material that is protected by the First Amendment may be restricted by the government only "to promote a compelling interest" and only by "the least restrictive means to further the articulated interest." The Supreme Court has "recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards." There are federal statutes in effect that limit, but do not ban, indecent material transmitted via telephone, broadcast media, and cable television. There are also many state statutes that ban the distribution to minors of material that is "harmful to minors." Material that is "harmful to minors" under these statutes tends to be defined more narrowly than material that is "indecent," in that material that is "harmful to minors" is generally limited to material of a sexual nature that has no serious value for minors. The Supreme Court has upheld New York's "harmful to minors" statute. In 1997, the Supreme Court declared unconstitutional two provisions of the Communications Decency Act of 1996 that would have prohibited indecent communications, by telephone, fax, or e-mail, to minors, and would have prohibited use of an "interactive computer service" to display indecent material "in a manner available to a person under 18 years of age." This latter prohibition would have banned indecency from public (i.e., non-subscription) websites. The CDA was succeeded by the Child Online Protection Act (COPA), P.L. 105 - 277 (1998), which differs from the CDA in two main respects: (1) it prohibits communication to minors only of "material that is harmful to minors," rather than material that is indecent, and (2) it applies only to communications for commercial purposes on publicly accessible websites. "Material that is harmful to minors" is defined as material that (A) is prurient, as determined by community standards, (B) "depicts, describes, or represents, in a manner patently offensive with respect to minors," sexual acts or a lewd exhibition of the genitals or post-pubescent female breast, and (C) "lacks serious literary, artistic, political, or scientific value for minors." COPA never took effect because, in 2007, a federal district court found it unconstitutional and issued a permanent injunction against its enforcement; in 2008, the U.S. Court of Appeals affirmed, finding that COPA "does not employ the least restrictive alternative to advance the Government's compelling interest" and is also vague and overbroad. In 2009, the Supreme Court declined to review the case. In 2003, at the Golden Globe Awards, the singer Bono, in response to winning an award, said, "this is really, really f[***]ing brilliant." The FCC found the word to be indecent, even when used as a modifier, because, "given the core meaning of the 'F-Word,' any use of that word or a variation, in any context, inherently has a sexual connotation." The question arises whether this ruling is consistent with the First Amendment, in light of the fact that the Supreme Court has left open the question whether broadcasting an occasional expletive would justify a sanction. In 2006, the FCC took action against four other television broadcasts that contained fleeting expletives, but on June 4, 2007, the U.S. Court of Appeals for the Second Circuit found "that the FCC's new policy regarding 'fleeting expletives' is arbitrary and capricious under the Administrative Procedure Act." The Supreme Court, however, reversed, finding that the FCC's explanation of its decision was adequate; it left open the question whether censorship of fleeting expletives violates the First Amendment. In 2008, the U.S. Court of Appeals for the Third Circuit overturned the FCC's fine against CBS broadcasting station affiliates for broadcasting Janet Jackson's exposure of her breast for nine-sixteenths of a second during a SuperBowl halftime show. The court found that the FCC had acted arbitrarily and capriciously in finding the incident indecent; the court did not address the First Amendment question. The Supreme Court, later, vacated and remanded the Third Circuit's decision in light of its ruling in Fox Television Stations, Inc. v. FCC , discussed above. CIPA restricts access to obscenity, child pornography, and material that is "harmful to minors," and so is discussed here separately. CIPA amended three federal statutes to provide that a school or library may not use funds it receives under these statutes to purchase computers used to access the Internet, or to pay the direct costs of accessing the Internet, and may not receive universal service discounts, unless the school or library enforces a policy to block or filter minors' Internet access to images that are obscene, child pornography, or harmful to minors; and enforces a policy to block or filter adults' Internet access to visual depictions that are obscene or child pornography. It provides, however, that filters may be disabled "for bona fide research or other lawful purposes." In 2003, the Supreme Court held CIPA constitutional. A plurality opinion acknowledged "the tendency of filtering software to 'overblock'—that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block." It found, however, that, "[a]ssuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled." The plurality also found that CIPA does not deny a benefit to libraries that do not agree to use filters; rather, the statute "simply insist[s] that public funds be spent for the purposes for which they were authorized."

The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech, or of the press." The First Amendment applies to pornography, in general. Pornography, here, is used to refer to any words or pictures of a sexual nature. There are two types of pornography to which the First Amendment does not apply, however. They are obscenity and child pornography. Because these are not protected by the First Amendment, they may be, and have been, made illegal. Pornography and "indecent" material that are protected by the First Amendment may nevertheless be restricted in order to limit minors' access to them.

As attention continues to focus on juvenile offenders, some question the way in which they are treated in the U.S. criminal justice system. Since the late 1960s, the juvenile justice system has undergone significant modifications as a result of United States Supreme Court decisions, changes in federal and state law and the growing perception that juveniles were increasingly involved in more serious and violent crimes. As a result, federal and state juvenile justice systems have focused less on rehabilitation and more on punishment, which may have significant ramifications for juvenile offenders once they reach adulthood. For example, recidivist statutes such as the Armed Career Criminal Act (ACCA) impose mandatory minimums based on prior convictions, including juvenile adjudications. As such, adult criminal defendants are exposed to longer terms of imprisonment based on prior juvenile misconduct. Despite this shift in focus to one more closely resembling the adult criminal justice system, juvenile offenders are not generally afforded the full panoply of rights provided to adult criminal defendants. The establishment of a juvenile court in Cook County, Illinois, in 1899 marked the first statewide implementation of a separate judicial framework whose sole concern was the problems and misconduct of children. The juvenile court was designed to be more than a court for children. The underlying theory behind a separate juvenile court system was that the state has a duty to assume a custodial and protective role over individuals who cannot act in their own best interest. As such, the separate system for juvenile offenders was predicated on the notion of rehabilitation—not punishment, retribution, or incapacitation. Because the juvenile court focused on protection rather than punishment, the juvenile proceeding was conceptualized as a civil proceeding (not a criminal one), with none of the trappings of an adversarial proceeding. By the mid-20 th century, questions arose regarding the fairness and efficacy of the juvenile justice system and its ability to effectively rehabilitate young offenders. Concerns that the differences between the adult and juvenile systems were illusory prompted the need to preserve the legal rights of children adjudicated in the juvenile justice system. As such, state courts began to expand the legal rights of juvenile offenders. The emerging focus on juveniles' rights in the state courts prompted intervention from the U.S. Supreme Court, which had traditionally deferred to the states. Beginning in the mid-1960s, the Court examined the due process rights of minors in four landmark cases: Kent v. United States , In re Gault , In re Winship , and McKeiver v. Pennsylvania . Through these cases, the Court left an indelible mark on the juvenile justice system by restricting the discretion of juvenile court judges and enumerating the constitutional rights retained by juveniles during adjudication. These decisions resulted in a hybrid juvenile justice system that renders some of the procedural rights afforded to adult criminal defendants. Some argue that this hybrid system blurs the historical distinction between the juvenile justice and adult criminal systems. The Court first recognized that the U.S. Constitution guaranteed juveniles due process rights in Kent v. United States . In Kent , the Court reviewed a District of Columbia case in which the petitioner challenged the validity of the juvenile court's decision to waive jurisdiction over him, on the ground that the procedure used by the court in reaching its decision constituted a denial of due process of law. The U.S. Supreme Court held that the waiver of jurisdiction was a "critically important" stage in the juvenile process and must be attended by minimum requirements of due process and fair treatment required by the Fourteenth Amendment. In reaching its decision, the Court expressed concern that the non-criminal nature of the juvenile proceeding was an invitation to "procedural arbitrariness" including broad judicial fact-finding. In In re Gault , the Court held that the informal procedures of juvenile courts amount to a denial of juveniles' fundamental due process rights. Although the Court recognized that juvenile courts were attempting to help juveniles, it reasoned that this worthy purpose failed to justify informal procedure, particularly when a juvenile's liberty was threatened. After a thorough examination of the history of the juvenile court system, the Court reiterated much of the criticism it raised in Kent , specifically expressing concern about the juvenile court's informality and the broad discretion of its judges. To ensure that juveniles receive the essentials of fair treatment during an adjudicatory hearing, the Court found that juveniles were entitled to certain due process rights afforded to adult criminal defendants under the U.S. Constitution. These rights include the right to reasonable notice of the charges, the right to counsel, the right to confrontation, and the right against self-incrimination. In In re Winship , the Court continued to expand the rights of juveniles by holding that the state must show proof beyond a reasonable doubt to adjudicate a minor as delinquent for an act that would be a crime if committed by an adult. The state of New York charged Samuel Winship with delinquency for stealing $112 from a woman's pocketbook in a furniture store. Having already established that juvenile proceedings must conform to due process and fair treatment, the Court considered a single issue: whether due process and fair treatment require a state to demonstrate proof beyond a reasonable doubt to hold a juvenile accountable for committing an adult criminal act. Although a New York juvenile court found Winship to be delinquent under a statute that required the state to show guilt merely by a preponderance of the evidence, the Court reversed, emphasizing that criminal charges have always required a higher burden of persuasion than civil cases. The Court expressly held that the Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he or she is charged. Finding that juveniles are constitutionally entitled to the reasonable doubt standard, the Court stated, "[t]he same considerations that demand extreme caution in fact-finding to protect the innocent adult apply as well to the innocent child." The Court rejected the state's argument that the delinquency adjudication is a civil proceeding that did not require due process protections, calling this argument the "civil label of convenience." By 1970, the Supreme Court had ruled that the due process notion of fundamental fairness entitled juveniles to various procedural protections in juvenile court. However, in McKeiver v. Pennsylvania , the Court held that juveniles do not have a fundamental right to a jury trial when being adjudicated in the juvenile justice system. McKeive r was a consolidation of three similar appeals involving minors adjudicated delinquent in juvenile court by judges who had rejected their requests for a jury to serve as fact-finder at their hearing. The Court narrowed the issue presented to whether the Due Process Clause of the Fourteenth Amendment ensured the right to trial by jury in the adjudicative phase of a juvenile court delinquency proceeding. After reviewing its previous juvenile court jurisprudence, the Court first considered whether the right to a jury was automatically guaranteed to minors by the Sixth and Fourteenth Amendments. Although it had never expressly characterized juvenile court proceedings as criminal prosecutions within the meaning and reach of the Sixth Amendment, the Court reiterated that the juvenile court system reflected many of the adult criminal court's punitive aspects. However, a plurality of the Court rejected the argument that adjudicatory proceedings were substantively similar to criminal trials, reasoning that a jury trial was only constitutionally required if due process required fact-finding by a jury. In support of its conclusion that a jury is unnecessary for fair fact-finding, the plurality noted that equity cases, workmen's compensation cases, probate matters, deportation cases, and military trials, among others, had been traditionally decided by judges without juries. In reaching its decision, the Court expressed doubt as to whether imposing such a right would improve the fact-finding ability of juvenile courts. In addition, the Court reasoned that imposing such a right would jeopardize the unique nature of the juvenile system and blur the distinctions between juvenile court and adult criminal court. To do so would make the juvenile system obsolete. The plurality's holding signaled the Court's return to the more paternalistic approach it had rejected in its previous opinions and marked the end of the era of expansion of procedural rights in juvenile adjudications. Arguably, the absence of a jury trial requirement in adjudicatory proceedings presents a host of questions that may warrant a reexamination of the issue. First, some are likely to argue that the increasingly punitive nature of cases adjudicated in the juvenile justice system calls into question the validity of the Court's reasoning underlying its holding in McKeiver that juveniles are not entitled to the right to a jury trial. When the Court decided McKeiver , it did so to maintain the civil and rehabilitative nature of the juvenile justice system. At the time of the decision, juvenile adjudication hearings were closed to the public, the system was informal, and the records of the juvenile adjudications were confidential and not relied on in criminal prosecutions. Currently, some juvenile adjudication hearings are open to the public, the system is more formal and adversarial, and juvenile adjudications are frequently used in criminal prosecutions for sentence enhancement. From their perspective, the civil and rehabilitative nature of the juvenile justice system has shifted to a more punitive one which more closely resembles the adult criminal justice system. Central to the McKeiver ' s holding was the Court's conclusion that juries were not essential to accurate fact-finding. However, this premise may be called into question in light of the Court's reemphasis on the importance of a jury. In a series of cases, the U.S. Supreme Court has recognized and emphasized the important role that juries play in criminal proceedings. In Duncan v. Louisiana , the U.S. Supreme Court held that the right to jury trial is fundamental and guaranteed by due process. In Williams v. Florida , the Court reaffirmed that the "purpose of the jury trial ... is to prevent oppression by the Government." The U.S. Supreme Court recognized the superiority of group decision-making over individual judgments in Ballew v. Georgia , which defined the constitutional minimum number of jurors that a state must empanel in a criminal prosecution. In Ballew , the Court, relying on empirical data, found that a jury composed of less than six members was less likely to foster effective group deliberation and more likely to lead to inaccurate fact-finding and incorrect application of the community's common sense to the facts. In addition, the court concluded that a smaller panel could increase the risk of convicting an innocent person. More recently, the Court has stressed the constitutional necessity of juries, rather than judges, making factual determinations upon which sentences are based. The Court's reasoning in Ballew and subsequent cases regarding fact-finding by juries during sentencing may call into question the Court's conclusion in McKeiver that a jury would not improve the fact-finding ability and fairness of juvenile courts. An argument can also be made that the absence of a jury trial in the adjudicatory process could lead to inequities in other criminal proceedings. For example, recidivist statutes such as the Armed Career Criminal Act impose mandatory minimums based on prior convictions, which by definition include juvenile adjudications. As such, adult criminal defendants are subjected to longer terms of imprisonment based on prior juvenile misconduct. Some state and lower federal courts have found that equating juvenile adjudications with a conviction as a predicate offense for the purposes of state recidivism statutes subverts the civil nature of the juvenile adjudication to an extent that makes it fundamentally unfair and, thus, violative of due process. One way to remedy the perceived inequities in using non-jury juvenile adjudication as sentence enhancements, critics of the current system maintain, might be to grant juveniles a right to a jury trial during adjudicatory hearings.

As more attention is being focused on juvenile offenders, some question whether the justice system is dealing with this population appropriately. Since the late 1960s, the juvenile justice system has undergone significant modifications resulting from U.S. Supreme Court decisions, changes in federal and state law, and the growing belief that juveniles were increasingly involved in more serious and violent crimes. Consequently, at both the federal and states levels, the juvenile justice system has shifted from a mostly rehabilitative system to a more punitive one, with serious ramifications for juvenile offenders. Despite this shift, juveniles are generally not afforded the panoply of rights afforded to adult criminal defendants. The U.S. Constitution requires that juveniles receive many of the features of an adult criminal trial, including notice of charges, right to counsel, privilege against self-incrimination, right to confrontation and cross-examination, proof beyond a reasonable doubt, and double jeopardy. However, in McKeiver v. Pennsylvania, the Court held that juveniles do not have a fundamental right to a jury trial during adjudicatory proceedings. The Sixth Amendment explicitly guarantees the right to an impartial jury trial in criminal prosecutions. In Duncan v. Louisiana, the U.S. Supreme Court held that this right is fundamental and guaranteed by the Due Process Clause of the Fourteenth Amendment. However, the Court has since limited its holding in Duncan to adult defendants by stating that the right to a jury trial is not constitutionally required for juveniles in juvenile court proceedings. Some argue that because the Court has determined that jury trials are not constitutionally required for juvenile adjudications, courts should not treat or consider juvenile adjudications in subsequent criminal proceedings. In addition, some argue that the use of non-jury juvenile adjudications in subsequent criminal proceedings violates due process guarantees, because juvenile justice and adult criminal proceedings are fundamentally different. Has the juvenile justice system changed in such a manner that the Supreme Court should revisit the question of jury trials in juvenile adjudications? Are the procedural safeguards in the juvenile justice system sufficient to ensure their reliable use for sentence enhancement purposes in adult criminal proceedings? To help address these questions, this report provides a brief background on the purpose of the juvenile system and discusses procedural due process protections provided by the Court for juveniles during adjudicatory hearings. It also discusses the Court's emphasis on the jury's role in criminal proceedings and will be updated as events warrant.

Policymakers are dedicating considerable attention to greenhouse gas emission reduction, primarily discussing options for carbon dioxide (CO 2 ) emission reduction. Less frequently addressed in proposed legislation is emission reduction for non-CO 2 greenhouse gases, such as nitrous oxide (N 2 O). However, N 2 O reduction efforts have the potential to mitigate climate change. Moreover, N 2 O emission sources may be regulated under the existing Clean Air Act as a class I or class II ozone-depleting substance at the discretion of the Environmental Protection Agency (EPA) Administrator. No new legislation needs to be passed to regulate N 2 O for climate protection and ozone recovery. The five non-CO 2 greenhouse gases regularly monitored but not entirely regulated by EPA (methane, nitrous oxide, hydroflourocarbons, perflourocarbons, and sulfur hexaflouride) accounted for approximately 17% of U.S. greenhouse gas (GHG) emissions in 2009, as measured by total tons of CO 2 equivalent. Nitrous oxide—the third-most abundant greenhouse gas—was responsible for roughly 4% of total U.S. GHG emissions in 2009 by weight. Although they comprise a smaller portion of GHG emissions, non-CO 2 greenhouse gases, including N 2 O, are more potent than CO 2 . The gases identified above are 21 to 23,900 times more effective than an equivalent weight of CO 2 at trapping heat in the atmosphere, with N 2 O being 310 times more potent by weight. In addition to being one cause of greenhouse gas emission growth, N 2 O is an ozone-depleting substance (ODS). Indeed, scientific analysis suggests that N 2 O is now the leading ODS being emitted, as emissions of other substances have been reduced significantly owing to regulations enacted in the late 1980s, in the Montreal Protocol on Substances that Deplete the Ozone Layer. N 2 O emission reduction could thus play a compelling role in recovery of the ozone layer as well as in greenhouse gas emission reduction. The agriculture sector is the primary anthropogenic source of nitrous oxide. The bulk of U.S. N 2 O emissions stem from fertilizing agricultural soils for crop production. Strategies or technologies designated for N 2 O emission reduction are limited. This is partly due to the dispersed nature of N 2 O emission sources. In the agriculture sector, the majority of N 2 O is released as a consequence of specific nitrogen cycle processes (nitrification and denitrification) when large amounts of synthetic nitrogen fertilizers are used for crop production. More efficient application of synthetic fertilizers (e.g., precision agriculture, nitrogen inhibitors, nitrogen sensors, controlled-release fertilizer products) is one way to reduce excess amounts of nitrogen available for bacterial processing and eventual release to the atmosphere as N 2 O. High costs and difficulty in measuring these products' efficacy, among other deterrents, have hampered widespread adoption of practices to reduce N 2 O emissions. This report focuses on the contributions of N 2 O to alteration in the Earth's climate and ozone depletion. Policy options for N 2 O emission reduction, sources of N 2 O, and federal support to lower N 2 O emissions are discussed. Nitrous oxide (N 2 O), familiar to some as "laughing gas," contributes to climate change and ozone depletion. Once released, N 2 O lingers in the atmosphere for decades (its atmospheric lifetime is approximately 114 years) and is 310 times more effective at trapping heat in the atmosphere over a 100-year time frame than carbon dioxide (CO 2 ). N 2 O emission quantity estimates remained fairly constant from 2005 to 2007, hovering around 325 million metric tons carbon dioxide equivalent (CO 2 e). N 2 O emission quantity estimates dropped in 2009 to below 300 million metric tons CO 2 e. See Table 1 . Nitrous oxide is emitted from anthropogenic (manmade) and natural sources. Oceans and natural vegetation are the major natural sources of N 2 O. Agricultural soil management (e.g., fertilization, application of manure to soils, drainage and cultivation of organic soils) is responsible for more than two-thirds of anthropogenic U.S. N 2 O emissions. In 2009, N 2 O emissions from agricultural soil management totaled more than 200 million metric tons of CO 2 e. Other anthropogenic sources of N 2 O are combustion by mobile sources (cars, trucks, etc.), manure management, and nitric acid production. Figure 1 depicts the origination and passage of nitrogen (N) that leads to N 2 O emissions from agricultural soil management. The amount of N 2 O emitted from cropland soils largely depends on the amount of nitrogen applied to a crop, weather, and soil conditions. Corn and soybean crops emit the largest amounts of N 2 O, respectively, due to vast planting areas, plentiful synthetic nitrogen fertilizer applications, and, in the case of soybeans, high nitrogen fixation rates ( Figure 2 ). Comprehension of the nitrogen cycle ( Figure 3 ) is beneficial when crafting policy to reduce N 2 O emissions from anthropogenic sources. Nitrogen, an essential element required by organisms to grow, is found throughout the atmosphere in various forms. The nitrogen cycle portrays the routes in which nitrogen moves through the soil and atmosphere in both organic and inorganic form. Certain processes within the nitrogen cycle convert the nitrogen into a form that can be taken up by plants. Four of the major processes are: nitrogen fixation—conversion of nitrogen gas (N 2 ) to a plant-available form; nitrogen mineralization—conversion of organic nitrogen to ammonia (NH 3 ); nitrification—conversion of ammonia (NH 3 ) to nitrate (NO 3 -) via oxidation (that is, by being combined with oxygen); and denitrification—conversion of nitrates back to nitrogen gas. Nitrous oxide is a byproduct of nitrification and denitrification. Both processes occur naturally. Excess application of nitrogen fertilizer can lead to increased nitrification, which can cause nitrate to leach into groundwater or surface runoff (in turn, this causes eutrophication, which can damage aquatic environments). N 2 O emission mitigation options are available for agricultural soil management and nitric acid production. Nitric acid is a chemical compound used to make synthetic fertilizers. N 2 O abatement options for nitric acid production include a high-temperature catalytic reduction method, a low-temperature catalytic reduction method, and nonselective catalytic reduction. The estimated reduction efficiencies (the percentage reduction achieved with adoption of a mitigation option) are 90%, 95%, and 85%, respectively. Agricultural soil management mitigation options recommended by researchers and technology transfer specialists to discourage excess application of nitrogen fertilizers and soil disturbance ( Table 2 ) are not generally being practiced. Fertilizer and soil best-management practices aim to provide the crop with the nutrient and soil conditions necessary for crop production, and prevent nutrient and soil loss from the crop field (e.g., erosion, leaching). Some may consider less money spent towards fertilizer use an economic incentive for agricultural producers. Others may want to ensure that crop yields meet expected feed, fiber, and fuel mandates (e.g., for corn ethanol), which may be difficult to attain with less fertilizer use. Monitoring reduced nitrogen fertilization applications on a large scale for greenhouse gas emission reduction purposes may be difficult; it is not clear how such a program could be managed at a national level. Enforcement options could include voluntary verification, third-party verifiers, or government intervention. Reporting N 2 O emissions from agricultural soil management was not included in the Final Mandatory Reporting of Greenhouse Gases Rule issued by EPA on September 22, 2009. EPA's reasoning behind this decision was that no low-cost or simple direct N 2 O measurement methods exist. Additionally, EPA released a proposed rule requiring new or modified facilities that could trigger Prevention of Significant Deterioration (PSD) permitting requirements to apply for a revision to their operating permits to incorporate the best available control technologies and energy efficiency measures to minimize GHG emissions. USDA provides some financial and technical assistance for nutrient management through its conservation programs. Moreover, USDA's Agricultural Research Service (ARS) is studying the relationship between agricultural management practices and nitrous oxide emissions. In addition to the agriculture sector, work is being done in the transportation sector to reduce N 2 O emissions. Mobile combustion was responsible for roughly 8% of N 2 O emissions reported in 2009. One N 2 O emission reduction effort, proposed by EPA and the Department of Transportation, is a per-vehicle N 2 O emission standard of 0.010 grams per mile effective in model year 2012 for all light-duty cars and trucks as part of a wider effort to reduce greenhouse gas emissions and improve fuel economy in tandem. EPA has allocated financial resources to quantify N 2 O emissions for the greenhouse gas inventory (e.g., DAYCENT model). Congress has begun to investigate the reduction of non-CO 2 greenhouse gas emissions, including N 2 O emissions, as one strategy to mitigate climate change. Some contend that N 2 O emissions reduction could serve as a short-term response in the larger, long-term scheme of mitigation and adaptation efforts. It may be viewed as a short-term response because N 2 O emissions make up a small amount of the GHG inventory compared to CO 2 emissions. Any substantial approach to mitigate climate change is likely at some point to have to address sources that emit CO 2 . Congress could approach N 2 O emissions reduction as part of a comprehensive GHG emission strategy offering economically attractive abatement alternatives to discourage actions leading to climate change. For example, a cap or fee on N 2 O emissions could spur innovative methods for agricultural producers to limit excess synthetic fertilizer application. Congress could also examine the tools necessary to identify N 2 O emission abatement options, assess their cost, and determine their economic impact for full incorporation into climate change legislation. Besides greenhouse gas emission reduction, reducing N 2 O emissions could lead to ozone recovery. Congress could explore the co-benefits that may arise from restricting N 2 O emissions for climate change purposes. N 2 O is not regulated as an ODS under the Clean Air Act, Title VI, Stratospheric Ozone Protection (as guided by the Montreal Protocol). As emissions of other ODSs (e.g., chlorofluorocarbon-11, halon-1211) have declined due to regulation, N 2 O has emerged as the dominant ODS emission. The first-ever published ozone depletion potential (ODP) value assigned to N 2 O, 0.017, is less than the ODP value of 1.0 for the reference gas chlorofluorocarbon 11 (CFC-11). While some may not see a cause for alarm based on the ODP value alone, the quantity of N 2 O emissions and its potency as a GHG can lead to serious harm (see Table 1 ). The ODP value for N 2 O does not allow for its mandatory inclusion as a class I substance for regulation under the Clean Air Act. However, N 2 O could be listed as a class II substance at the direction of the EPA Administrator or regulated under Section 615 of the act. Class I substances have an ODP of 0.2 or more and are more harmful to stratospheric ozone molecules than Class II substances, which have an ODP of less than 0.2. With or without ODP substance listing, Congress may find it useful to incorporate the ozone depletion impacts of N 2 O into its climate change policy proposals both to reduce greenhouse gas emissions and to further ozone recovery achievements. Classifying N 2 O emission reduction as an eligible offset type, including N 2 O as a covered entity within a cap-and-trade program, or directing EPA to use existing authority under the Clean Air Act to regulate N 2 O are other available options to reduce N 2 O emissions for ozone or climate protection. Any option chosen to reduce N 2 O emissions will more than likely require an improvement of N 2 O estimation, measurement, and reporting methods and possible financial incentives. Congress could apply lessons learned from previous international agreements that are intended to abolish harmful compounds. The outcomes of the Montreal Protocol, put into action in the late 1980s, may prove useful to Congress in understanding the long-term implications of certain climate change policy options, specifically cap-and-trade. A number of gases were phased out under the Protocol, which allowed for each country to establish a regulatory framework to monitor and reduce ODSs. Certain ozone-depleting substances, such as N 2 O, were not included in the Protocol partly because their threat was not perceived as urgent at the time. However, one unintended consequence of the success of the Protocol reducing targeted ODSs is that N 2 O has emerged as the leading ODS.

Gases other than carbon dioxide accounted for approximately 17% of total U.S. greenhouse gas emissions in 2009, yet there has been minimal discussion of these other greenhouse gases in climate and energy legislative initiatives. Reducing emissions from non-carbon dioxide greenhouse gases, such as nitrous oxide (N2O), could deliver short-term climate change mitigation results as part of a comprehensive policy approach to combat climate change. Nitrous oxide is 310 times more potent than carbon dioxide in its ability to affect the climate; and moreover, results of a recent scientific study indicate that nitrous oxide is currently the leading ozone-depleting substance being emitted. Thus, legislation to restrict nitrous oxide emissions could contribute to both climate change protection and ozone recovery. The primary human source of nitrous oxide is agricultural soil management, which accounted for more than two-thirds of the N2O emissions reported in 2009 (approximately 205 million metric tons CO2 equivalent). One proposed strategy to lower N2O emissions is more efficient application of synthetic fertilizers. However, further analysis is needed to determine the economic feasibility of this approach as well as techniques to measure and monitor the adoption rate and impact of N2O emission reduction practices for agricultural soil management. As the 112th Congress considers legislation that would limit greenhouse gas emissions, among the issues being discussed is how to address emissions of non-CO2 greenhouse gases. Whether such emissions should be subject to direct regulation, what role EPA should play using its existing Clean Air Act authority, and what role USDA should play in any N2O reduction scheme are among the issues being discussed. How these issues are resolved will have important implications for agriculture, which has taken a keen interest in climate change legislation.

President Bush signed S. 714 , the Junk Fax Prevention Act ("the act" or JFPA), on July 9, 2005. This law vacated previous rules promulgated by the Federal Communications Commission (FCC) in July 2003 relating to unsolicited facsimile (fax) advertising; those rules amended section 227 of the Communications Act of 1934 (47 U.S.C. 227). The JFPA contains the following specific provisions relating to fax advertising. Provides an "established business relationship" (EBR) exemption, allowing businesses, political organizations, and trade associations to send advertisements and solicitations to persons with whom they have an existing relationship. Requires organizations to place a "clear and conspicuous" notice on the first page of each fax informing the recipient how to opt out of future faxes—the notice must include U.S. telephone and fax numbers and a "cost-free" way for recipients to make their requests. Requires that businesses be able to accept opt-out requests 24-hours a day, seven days a week. The JFPA also directed the FCC to conduct a rulemaking to implement certain portions of the act (see below, " FCC Activity ") and the Government Accountability Office (GAO) to issue a report on the effectiveness of the FCC's junk fax enforcement policies by April 5, 2006 (see below, " GAO Activity "). The JFPA required the FCC to adopt rules concerning unsolicited fax advertising as well as issue an annual report on its enforcement activities. On December 9, 2005, the FCC released a Notice of Proposed Rulemaking (NPRM) and Order on various questions related to the regulation of commercial faxes. On April 5, 2006, the FCC adopted its final rules in this proceeding. These rules codified an exemption to the fax rules to allow fax advertisements to be sent to parties with whom the sender has an EBR and provided a definition of an EBR to be used in the context of sending fax advertisements; required that, even in the case of an EBR, a person sending a fax advertisement must obtain the fax number directly from the recipient or ensure that the recipient voluntarily agreed to make the number available for public distribution; required the sender of fax advertisements to provide clear and conspicuous notice and contact information on the first page of a fax that allows recipients to "opt-out" of future fax transmissions from the sender; required senders to honor opt-out requests within the shortest reasonable period of time, not to exceed 30 days; determined not to exempt small businesses or nonprofit trade associations from the rules; and clarified the term "unsolicited advertisement." In this proceeding, the FCC did not address whether there should be a time limit on the duration of an EBR, although the act allows the FCC to revisit that issue at another time. The FCC's Junk Fax Fact Sheet is available online at http://www.fcc.gov/cgb/consumerfacts/unwantedfaxes.html . As required by the JFPA, in January 2007, the FCC released its first annual report on junk fax enforcement. According to the report, the Commission issued 125 citations in response to 47,704 junk fax complaints representing 102,004 alleged violations during the period July 2005 through July 2006. The report further states that the Commission fully addressed approximately 85 percent of those alleged violations, but that figure includes not only complaints against which the FCC issued a citation, but also violations that were found to be non-actionable for various reasons. As required under the JFPA, on April 5, 2006, the GAO submitted its report to Congress on the FCC's enforcement of the junk fax law. The report addressed the following. The FCC's junk fax procedures and outcomes. The strengths and weaknesses of FCC's procedures. The FCC's junk fax management challenges. The GAO found that the FCC had instituted procedures for receiving and acknowledging the increasing number of junk fax complaints, but that the numbers of investigations and enforcement actions had remained mostly the same. For example, the GAO stated that in 2000, the FCC recorded about 2,200 junk fax complaints; in 2005, the FCC recorded over 46,000 complaints. However, in total, the GAO found that the FCC's Enforcement Bureau issued only 261 warnings from 2000 through 2005. Further, the GAO discovered that although the bureau had ordered six companies to pay forfeitures totaling over $6.9 million for continuing to violate the junk fax rules after receiving warnings, none of that total had been collected by the Department of Justice. The GAO also stated that FCC officials cited competing demands, resource constraints, and the rising sophistication of violators in hiding their identities as hindrances to enforcement. With respect to strengths and weaknesses in the FCC's procedures, the GAO determined that an emphasis on customer service, an effort to document consumers' complaints, and an attempt to target enforcement resources efficiently were strengths in FCC's procedures; however, inefficient data management, resulting in time-consuming manual data entry, data errors, and—most importantly—the exclusion of the majority of complaints from decisions about investigations and enforcement, continue to be weaknesses. Further, the GAO stated that the FCC does not provide consumers with adequate guidance or information to support the FCC's enforcement efforts. Finally, the GAO stated that FCC faces management challenges in carrying out its junk fax responsibilities. The FCC has no clearly articulated long-term or annual goals for junk fax monitoring and enforcement, and it is not analyzing the data it collects. Without analysis, the FCC cannot assess whether it needs to change its rules, procedures, or consumer guidance guidelines. Most importantly, the GAO found that without performance goals and measures and without analysis of complaint and enforcement data, it was not possible to explore the effectiveness of current enforcement measures.

On July 9, 2005, President Bush signed S. 714, the Junk Fax Prevention Act ("the act" or JFPA) (P.L. 109-21) and on April 5, 2006, the Federal Communications Commission (FCC) issued its final rules in the related proceeding. These rules provided an established business relationship (EBR) exemption to the prohibition on sending unsolicited facsimile advertisements; provided a definition of an EBR to be used in the context of unsolicited facsimile advertisements; required the sender of a facsimile advertisement to provide specified notice and contact information on the facsimile that allows recipients to "opt-out" of any future facsimile transmissions from the sender; and specified the circumstances under which a request to "opt-out" complied with the JFPA. Also, the rules required that small businesses and nonprofits adhere to the rules and clarified the term "unsolicited advertisement." The FCC did not address whether there should be a time limit on the duration of an EBR. The rules in their entirety became effective on August 1, 2006. On April 5, 2006, in accordance with the JFPA, the GAO submitted a report to Congress on the FCC's enforcement of the junk fax law. On January 4, 2007, in accordance with the JFPA, the FCC released its first annual report on the enforcement of its junk fax rules. The FCC's Junk Fax Fact Sheet is available online at http://www.fcc.gov/cgb/consumerfacts/unwantedfaxes.html.

On May 23, 2006, the Eleventh Circuit Court of Appeals ordered the District Court for the Southern District of Florida to impose an injunction on EchoStar Communications Corporation to cease retransmitting all programming originating on stations affiliated with ABC, Inc.; CBS Broadcasting, Inc.; Fox Broadcasting Co.; or National Broadcasting Co. The district court complied in two orders, one granting a motion for entry of a permanent injunction and denying a settlement agreement, the other ordering the implementation of the injunction effective December 1, 2006. At issue before the Eleventh Circuit was whether EchoStar had violated the Satellite Home Viewer Act (SHVA), as amended, which grants a limited statutory license to satellite carriers transmitting distant network signals to private homes if the subscribers reside in unserved households, and the scope and consequences of that violation. The court of appeals held that because EchoStar was unable to disprove it had engaged in a "pattern or practice" of SHVA violations on a nationwide scale, the terms of the Satellite Home Viewer Act required that the court impose a nationwide injunction against EchoStar's improper retransmission of distant network programming. This differs from the decision of the district court, which had concluded that so long as EchoStar was currently complying with SHVA, the court had discretion to order EchoStar to re-analyze its subscriber base, supervised by the court to ensure compliance with SHVA, and terminate all subscribers who were ineligible to receive the signals. This report briefly describes the Satellite Home Viewer Act, as amended, through the lens of the Eleventh Circuit's ruling regarding a satellite provider's retransmission of programming originating on distant network affiliate stations to persons who live in "unserved" households. It then describes the facts underpinning the court's decision, followed by the main legal issues the court addressed and a discussion of the district court's implementation of the court of appeals' decision. The report concludes with possible legislative action. The Satellite Home Viewer Act of 1988 (SHVA), as amended, grants satellite carriers like EchoStar a compulsory license to retransmit copyrighted "distant network programming" to "unserved households." The purpose behind granting the compulsory license is to "satisfy the public interest in making available network programming in these (typically rural) areas, while also respecting the public interest in protecting the network-affiliate distribution system." Distant network programming is programming that a satellite television subscriber receives from a network-affiliated broadcast station located outside his or her market area. An example is a person who lives in Fort Lauderdale but receives an ABC, CBS, Fox, or NBC network station from New York City. An unserved household , for the purposes of this discussion, is one in which a subscriber (1) cannot receive an over-the-air television signal at a certain level of signal intensity, (2) has received a waiver from the local affiliated network station, or (3) is grandfathered in. Under SHVA, the satellite carrier bears the burden of proving its subscribers reside in unserved households. If it fails to provide sufficient evidence that a household is unserved, the satellite carrier may be held liable for damages and injunctive relief. For households receiving an over-the-air television signal, SHVA permits two methods of determining whether a household is unable to receive a signal of requisite strength: the use of the "accurate measurements method" and the "accurate predictive model." The accurate measurements method requires actual physical measurements to determine the strength of the television signal at the subscriber's residence, performed in accordance with statutory and regulatory requirements. By contrast, the accurate predictive model, or ILLR, does not require home visits, yet allows the satellite carrier, through a computer model, to presumptively establish that a household cannot receive a sufficient signal and is therefore unserved. Penalties for violating SHVA vary, depending on whether they are classified as "individual violations" or "patterns of violations." An individual violation occurs where there is a willful or repeated retransmission to a subscriber who is not eligible to receive the transmission. By contrast, a pattern of violations occurs when a satellite carrier engages in a willful or repeated pattern or practice of delivering distant network service to subscribers who are not eligible to receive the transmission. A district court has broad discretion to remedy individual violations but has less discretion in its choice of remedy for a pattern or practice of violations. Assuming a court finds a willful or repeated pattern or practice of violations, it must order a permanent injunction barring retransmission by the satellite carrier of any primary transmissions from any network station affiliated with the same network, and may order damages not to exceed $250,000 for each six-month period during which the pattern or practice of violations occurred. If the violations occurred on a "substantially nationwide basis," the court must order a permanent injunction against the satellite carrier encompassing "the primary transmissions of any primary network station affiliated with the same network" —a nationwide ban. If the violations occurred on a "local or regional basis," the court must order a permanent injunction against the satellite carrier that bars the retransmission "in that locality or region." At issue was whether EchoStar willfully or repeatedly violated SHVA by retransmitting distant network signals to ineligible satellite television subscribers from 1996 to 2003, and if so, whether the nature of the violations was best classified as "individual" or "pattern or practice" violations, thereby triggering different penalties. The district court examined the methodology by which EchoStar classified a household as unserved and the percentage of the carrier's subscriber base inappropriately classified as eligible for service. The court concluded that from 1996 to 2002, EchoStar used improper methodology to assess whether a person resided in an unserved household, with the result that 60% or more of subscribers were ineligible for service. Because EchoStar did not satisfy its statutory burden of proving it only retransmitted distant network signals to unserved households, the district court held that EchoStar's conduct constituted willful or repeated copyright infringement, actionable under the part of SHVA that governs "individual violations." The district court did not reach a conclusion as to whether EchoStar engaged in a pattern or practice of violations, which would trigger a permanent injunction, because "no pattern or practice currently exists that would warrant such an extreme sanction." The court of appeals overturned the district court's legal conclusion regarding EchoStar's punishment, holding that the district court was indeed obligated to issue a nationwide permanent injunction against EchoStar's retransmission of network programming as a consequence of "the inescapable conclusion, based on the district court's findings, that EchoStar did engage in a 'pattern or practice' of violations." The district court erroneously concluded that the legal standard for "pattern or practice" liability required EchoStar to be currently engaged in violating SHVA. The court of appeals held that the permanent injunction required under "pattern or practice" must be imposed, so long as a pattern or practice of statutory violations occurred at some point in time. The court then proceeded to evaluate whether EchoStar had engaged at any time in a pattern or practice of violating SHVA. According to the court, the standard for concluding "pattern or practice" liability under SHVA is "whenever a satellite carrier fails to carry its burden of proving eligibility [for distant network service] on a sufficient scale, and to a sufficient degree, that [a court] can presume that the satellite carrier is engaging in 'pattern or practice' of serving ineligible subscribers." Looking at the legislative history of SHVA, the court determined that a threshold of 20% of subscribers being ineligible for service is a relevant marker for pattern or practice analysis. The court of appeals, believing "that there is no other possible conclusion that can be drawn from the district court's findings of fact," determined that EchoStar's prior conduct did constitute a pattern or practice of violations. The court based this conclusion on a three main factors. First, EchoStar's three-and-a-half year history of using inadequate procedures for assessing subscriber eligibility. Second, EchoStar's exceeding the 20% threshold of unlawful subscribers nationwide. Third, EchoStar's pattern of behavior, about which the court stated, "we have found no indication EchoStar was ever interested in complying with the Act." The court also denied all but one of EchoStar's 17 claims of error. In addressing EchoStar's assertions that the court had discretion to determine a remedy for the violations, the court found that "Congress unequivocally stated a purpose to restrict the courts' traditional equitable authority upon a finding of a 'pattern or practice.'" Because the act instructs that a court shall order a permanent injunction and may order statutory damages, the court found there to be "no ambiguous statutory language in the SHVA ... [or] any legislative history that would indicate that the remedial measure chosen by Congress is anything but mandatory." As a result, on August 15, 2006, the court of appeals ordered the district court to issue a nationwide permanent injunction barring the retransmission of distant network programming pursuant to the act's statutory license. Ten days after the court of appeals decision, EchoStar and the Affiliate Associations filed a Notice of Settlement between those parties in the district court. On August 31, Fox Broadcasting Company (Fox) filed a motion for entry of a nationwide permanent injunction in accordance with the court of appeals' decision. The district court issued two orders in response to Fox's motion on October 20, 2006. EchoStar and the Affiliate Associations (the Settling Parties) made three arguments against the court's imposition of the injunction and in favor of granting the proposed consent agreement. First, the Settling Parties argued that Fox lacked standing to obtain relief because the act only applies to networks, not network stations, and Fox abandoned its cross-appeal to the court of appeals, thereby waiving its right to seek an injunction. Second, they argued that the nationwide permanent injunction Fox sought was overly broad, and considering the agreement between the Settling Parties, the court had discretion to enter more narrow relief. Finally, Echostar argued that the entry of a nationwide permanent injunction would cause manifest injustice to the parties and EchoStar's customers. The district court rejected all three arguments. The district court concluded that the question of Fox's standing was irrelevant because the court had "an obligation to implement the mandate issued by the Eleventh Circuit even without the request of any party." The district court also found that, according to controlling case law, it was unable to review or alter the mandate from the court of appeals, as the parties' settlement agreement did not present new evidence or an intervening change in controlling law , the only circumstances under which the district court held it would have discretion to review the court of appeals' mandate. The district court also concluded that implementing the law would not constitute "manifest injustice," as it would be "neither clearly erroneous nor contrary to law," the standard for a court making that finding. As a result, the district court granted an Order of Permanent Injunction, effective December 1, 2006, that permanently enjoined and restrained EchoStar from retransmitting "a performance or display of a work embodied in the primary transmission of any network station affiliated with ABC, Inc., CBS Broadcasting, Inc., Fox Broadcasting Company, or National Broadcasting Co." Introduced by Senator Allard and substantively identical to S. 4074 introduced in the 109 th Congress, section 2 would allow satellite broadcasters to retransmit signals originating in Denver to subscribers in two counties in Colorado that are in a local market comprised principally of counties located in another state. Introduced by Senator Sununu, co-sponsored by Senator Gregg, and identical to S. 4068 introduced in the 109 th Congress, it generally would allow a satellite broadcaster to continue retransmitting, despite the injunction, in states with a single full-power network station. Introduced by Representative Boren, it allows subscribers to receive the secondary transmissions of network stations located in Oklahoma so long as they either reside in Oklahoma but do not receive the secondary transmission of any network station located in Oklahoma or live in another state that contains a local market that includes some Oklahoma residents and the subscriber elects to receive the secondary transmission originating in Oklahoma. Introduced by Senator Salazar, it allows subscribers in certain counties in Colorado to receive secondary transmissions of network stations located in the state capital. It also permits subscribers who are located in a designated market area comprised primarily of counties outside of Colorado to receive retransmission of broadcast signals upon FCC approval and broadcaster agreement. Multiple pieces of legislation were introduced in the second session of the 109 th Congress, subsequent to the district court's order implementing the permanent injunction. Introduced by Senator Leahy and joined by 15 co-sponsors in the Senate and introduced by Representative Mollohan and co-sponsored by Representative Rahall in the House, it would have allowed in several limited circumstances, subject to additional conditions, a satellite provider to continue providing distant network service despite a court's permanent injunction. Introduced by Senator Sununu and cosponsored by Senator Gregg in the Senate and introduced by Representative Bass and cosponsored by Representative Bradley in the House, it generally would have allowed a satellite broadcaster to continue retransmitting, despite the injunction, in states with a single full-power network station. Introduced by Senator Allard, the relevant portion, section 2, with some caveats, would have allowed subscribers in two counties in Colorado to choose to receive transmissions of any network station located in Denver, regardless of whether they would otherwise qualify as an unserved household. Introduced by Senators Stevens and cosponsored by Senators Allard, Ensign, and Murkowski, in the Senate and introduced by Representative Boucher and joined by 18 co-sponsors in the House, it would have permitted a court to approve a settlement agreement reached by at least one plaintiff and one defendant in litigation that resulted in the issuance of a permanent injunction.

On May 23, 2006, the Eleventh Circuit Court of Appeals ordered the District Court for the Southern District of Florida to enjoin EchoStar Communications Corporation from retransmitting all programming originating on any station affiliated with ABC, Inc.; CBS Broadcasting, Inc.; Fox Broadcasting Co.; or National Broadcasting Co. The district court complied, rejecting EchoStar's last-minute arguments and partial settlement agreement and ordering the injunction imposed effective December 1, 2006. At issue before the Eleventh Circuit was whether EchoStar had violated the Satellite Home Viewer Act (SHVA), as amended, which grants a limited statutory license to satellite carriers transmitting distant network signals to private homes if the subscribers cannot receive local signals, and the scope and consequences of violating SHVA. The court of appeals determined that EchoStar engaged in a pattern or practice of violating SHVA on a nationwide scale and, consequently, that SHVA required the court to impose a nationwide injunction against EchoStar for its improper retransmission of programming. This was a different legal conclusion than that reached by the district court, which had concluded that because of EchoStar's cessation of the violation, SHVA did not require "pattern or practice" liability, and the court consequently had discretion to order EchoStar to re-analyze its subscriber base, in compliance with SHVA, and to limit termination to subscribers found ineligible under the court-supervised analysis. Subsequent to the district court's orders implementing the court of appeals' decision, multiple bills were introduced in the 109th Congress—S. 4067, S. 4068, S. 4074, S. 4080, H.R. 6402, H.R. 6340, and H.R. 6384—that would have allowed EchoStar to recommence retransmission of distant network programming under varying circumstances. Several bills have been introduced in the 110th Congress: H.R. 602, S. 124, S. 258, and S. 760.

Under a demonstration project established by VBIA, from February 8, 2005, through September 30, 2007, and subsequently extended through November 16, 2007, OSC and DOL share responsibility for receiving and investigating USERRA claims and seeking corrective action for federal employees. While the legislation did not establish specific goals for the demonstration project, the language mandating that GAO conduct a review suggested that duplication of effort and delays in processing cases were of concern to Congress. The demonstration project gave OSC, an independent investigative and prosecutorial agency, authority to receive and investigate claims for federal employees whose social security numbers end in odd numbers. VETS investigated claims for individuals whose social security numbers end in even numbers. Under the demonstration project, OSC conducts an investigation of claims assigned to determine whether the evidence is sufficient to resolve the claimants’ USERRA allegations and, if so, seeks voluntary corrective action from the involved agency or initiates legal action against the agency before the Merit Systems Protection Board (MSPB). For claims assigned to DOL, VETS conducts an investigation, and if it cannot resolve a claim, DOL is to inform claimants that they may request to have their claims referred to OSC. OSC’s responsibility under USERRA for conducting independent reviews of referred claims after they are investigated but not resolved by VETS remained unchanged during the demonstration project. Before sending the referred claim to OSC, two additional levels of review take place within DOL. After OSC receives the referred claim from DOL, it reviews the case file, and if satisfied that the evidence is sufficient to resolve the claimant’s allegations and that the claimant is entitled to corrective action, OSC begins negotiations with the claimant’s federal executive branch employer. According to OSC, if an agreement for full relief via voluntary settlement by the employer cannot be reached, OSC may represent the servicemember before MSPB. If MSPB rules against the servicemember, OSC may appeal the decision to the U.S. Court of Appeals for the Federal Circuit. In instances where OSC finds that referred claims do not have merit, it informs servicemembers of its decision not to represent them and that they have the right to take their claims to MSPB without OSC representation. Figure 1 depicts USERRA claims’ processing under the demonstration project. Under the demonstration project, VETS and OSC used two different models to investigate federal employee USERRA claims. Both DOL and OSC officials have said that cooperation and communication increased between the two agencies concerning USERRA claims, raising awareness of the issues related to servicemembers who are federal employees. In addition, technological enhancements have occurred, primarily on the part of VETS since the demonstration project. For example, at VETS, an enhancement to its database enables the electronic transfer of information between agencies and the electronic filing of USERRA claims. However, we found that DOL did not consistently notify claimants concerning the right to have their claims referred to OSC for further investigation or to bring their claims directly to MSPB if DOL did not resolve their claims. We also found data limitations at both agencies that made claim outcome data unreliable. DOL agreed with our findings and recommendations and has begun to take corrective action. Since the start of the demonstration project on February 8, 2005, both DOL/VETS and OSC had policies and procedures for receiving, investigating, and resolving USERRA claims against federal executive branch employers. Table 1 describes the two models we reported DOL and OSC using to process USERRA claims. Once a VETS investigator completes an investigation and arrives at a determination on a claim, the investigator is to contact the claimant, discuss the findings, and send a letter to the claimant notifying him or her of VETS’s determination. When VETS is unsuccessful in resolving servicemembers’ claims, DOL is to notify servicemembers who filed claims against federal executive branch agencies that they may request to have their claims referred to OSC or file directly with MSPB. Our review of a random sample of claims showed that for claims VETS was not successful in resolving (i.e., claims not granted or settled), VETS (1) failed to notify half the claimants in writing, (2) correctly notified some claimants, (3) notified others of only some of their options, and (4) incorrectly advised some claimants of a right applicable only to nonfederal claimants—to have their claims referred to the Department of Justice or to bring their claims directly to federal district court. In addition, we found that the VETS USERRA Operations Manual failed to provide clear guidance to VETS investigators on when to notify servicemembers of their rights and the content of the notifications. VETS had no internal process to routinely review investigators’ determinations before claimants are notified of them. According to a VETS official, there was no requirement that a supervisor review investigators’ determinations before notifying the claimant of the determination. In addition, legal reviews by a DOL regional Office of the Solicitor occurred only when a claimant requested to have his or her claim referred to OSC. A VETS official estimated that about 7 percent of claimants ask for their claims to be referred to OSC or, for nonfederal servicemembers, to the Department of Justice. During our review, citing our preliminary findings, DOL officials required each region to revise its guidance concerning the notification of rights. Since that time, DOL has taken the following additional actions: reviewed and updated policy changes to incorporate into the revised Operations Manual and prepared the first draft of the revised Manual; issued a memo in July 2007 from the Assistant Secretary for Veteran’s Employment and Training to regional administrators, senior investigators, and directors requiring case closing procedure changes, including the use of standard language to help ensure that claimants (federal and nonfederal) are apprised of their rights; and began conducting mandatory training on the requirements contained in the memo in August 2007. In addition, according to DOL officials, beginning in January 2008, all claims are to be reviewed before the closure letter is sent to the claimant. These are positive steps. It is important for DOL to follow through with its plans to complete revisions to its USERRA Operations Manual, which according to DOL officials is expected in January 2008, to ensure that clear and uniform guidance is available to all involved in processing USERRA claims. Our review of data from VETS’s database showed that from the start of the demonstration project on February 8, 2005, through September 30, 2006, VETS investigated a total of 166 unique claims. We reviewed a random sample of case files to assess the reliability of VETS’s data and found that the closed dates in VETS’s database were not sufficiently reliable. Therefore, we could not use the dates for the time VETS spent on investigations in the database to accurately determine DOL’s average processing time. Instead, we used the correct closed dates from the case files in our random sample and statistically estimated the average processing time for VETS’s investigations from the start of the demonstration project through July 21, 2006—the period of our sample. Based on the random sample, there is at least a 95 percent chance that VETS’s average processing time for investigations ranged from 53 to 86 days. During the same period, OSC received 269 claims and took an average of 115 days to process these claims. We found the closed dates in OSC’s case tracking system to be sufficiently reliable. In his July 2007 memo discussed above, the Assistant Secretary for Veteran’s Employment and Training also instructed regional administrators, senior investigators, and directors that investigators are to ensure that the closed date of each USERRA case entered in VETS’s database matches the date on the closing letter sent to the claimant. We found data limitations at both agencies that affected our ability to determine outcomes of the demonstration project and could adversely affect Congress’s ability to assess how well federal USERRA claims are processed and whether changes are needed. At VETS, we found an overstatement in the number of claims and unreliable data in the VETS’s database. From February 8, 2005, through September 30, 2006, VETS received a total of 166 unique claims, although 202 claims were recorded as opened in VETS’s database. Duplicate, reopened, and transferred claims accounted for most of this difference. Also, in our review of a random sample of case files, we found the dates recorded for case closure in VETS’s database did not reflect the dates on the closure letters in 22 of 52 claims reviewed, so using the correct dates from the sample, we statistically estimated average processing time, and the closed code, which VETS uses to describe the outcomes of USERRA claims (i.e., claim granted, claim settled, no merit, withdrawn) was not sufficiently reliable for reporting specific outcomes of claims. At OSC, we assessed the reliability of selected data elements in OSC’s case tracking system in an earlier report and found that the corrective action data element, which would be used for identifying the outcomes of USERRA claims, was not sufficiently reliable. We separately reviewed those claims that VETS investigated but could not resolve and for which claimants requested referral of their claims to OSC. For these claims, two sequential DOL reviews take place: a VETS regional office prepares a report of the investigation, including a recommendation on the merits and a regional Office of the Solicitor conducts a separate legal analysis and makes an independent recommendation on the merits. From February 8, 2005, through September 30, 2006, 11 claimants asked VETS to refer their claims to OSC. Of those 11 claims, 6 claims had been reviewed by both a VETS regional office and a regional Office of the Solicitor and sent to OSC. For those 6 claims, from initial VETS investigation through the VETS regional office and regional Office of the Solicitor reviews, it took an average of 247 days or about 8 months before the Office of the Solicitor sent the claims to OSC. Of the 6 referred claims that OSC received from DOL during the demonstration project, as of September 30, 2006, OSC declined to represent the claimant in 5 claims and was still reviewing 1 of them, taking an average of 61 days to independently review the claims and determine if the claims had merit and whether to represent the claimants. You asked us about factors that could be considered in deciding whether to extend the demonstration project and to conduct a follow-up review. If the demonstration project were to be extended, it would be important to have clear objectives. Legislation creating the current demonstration project was not specific in terms of the objectives to be achieved. Having clear objectives would be important for the effective implementation of the extended demonstration project and would facilitate a follow-on evaluation. In this regard, our report provides baseline data that could inform this evaluation. Given adequate time and resources, an evaluation of the extended demonstration project could be designed and tailored to provide information to inform congressional decision making. Congress also may want to consider some potential benefits and limitations associated with options available if the demonstration is not extended. Table 2 presents two potential actions that could be taken and examples of potential benefits and limitations of each. The table does not include steps, such as enabling legislation that might be associated with implementing a particular course of action. At a time when the nation’s attention is focused on those who serve our country, it is important that employment and reemployment rights are protected for federal servicemembers who leave their employment to perform military or other uniformed service. Addressing the deficiencies that we identified during our review, including correcting inaccurate and unreliable data, is a key step to ensuring that servicemembers’ rights under USERRA are protected. While DOL is taking positive actions in this regard, it is important that these efforts are carried through to completion. Chairman Akaka, Senator Burr, and Members of the Committee, this concludes my prepared statement. I would be pleased to respond to any questions that you may have. For further information regarding this statement, please contact George Stalcup, Director, Strategic Issues, at (202) 512-9490 or stalcupg@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this testimony. Individuals making key contributions to this statement included Belva Martin, Assistant Director; Karin Fangman; Tamara F. Stenzel; Kiki Theodoropoulos; and Greg Wilmoth. 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The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects the employment and reemployment rights of federal and nonfederal employees who leave their employment to perform military or other uniformed service. Under a demonstration project from February 8, 2005, through September 30, 2007, and subsequently extended through November 16, 2007, the Department of Labor (DOL) and the Office of Special Counsel (OSC) share responsibility for receiving and investigating USERRA claims and seeking corrective action for federal employees. In July 2007, GAO reported on its review of the operation of the demonstration project through September 2006. This testimony describes the findings of our work and actions taken to address our recommendations. In response to the request from Congress, GAO also presents views on (1) factors to consider in deciding whether to extend the demonstration project and the merits of conducting a follow-up review and (2) options available if the demonstration is not extended. In preparing this statement, GAO interviewed officials from DOL and OSC to update actions taken on recommendations from our July 2007 report and developments since we conducted that review. Under the demonstration project, OSC receives and investigates claims for federal employees whose social security numbers end in odd numbers; DOL investigates claims for individuals whose social security numbers end in even numbers. Among GAO's findings were the following: DOL and OSC use two different models to investigate federal USERRA claims, with DOL using a nationwide network and OSC using a centralized approach, mainly within its headquarters. Since the demonstration project began, both DOL and OSC officials have said that cooperation and communication increased between the two agencies concerning USERRA claims, raising awareness of the issues related to servicemembers who are federal employees. DOL did not consistently notify claimants concerning the right to have their claims referred to OSC for further investigation or to bring their claims directly to the Merit Systems Protection Board if DOL did not resolve their claims. DOL had no internal process to routinely review investigators' determinations before claimants were notified of them. Data limitations at both agencies made claim outcome data unreliable. DOL officials agreed with GAO's findings and recommendations and are taking actions to address the recommendations. In July 2007, DOL issued guidance concerning case closing procedures, including standard language to ensure that claimants (federal and nonfederal) are apprised of their rights,and began conducting mandatory training on the guidance in August 2007. In addition, according to DOL officials, beginning in January 2008, all claims are to be reviewed before the closure letter is sent to the claimant. These are positive steps and it will be important for DOL to follow through with these and other actions. If the demonstration project were to be extended, it would be important that clear objectives be set. Legislation creating the current demonstration project was not specific in terms of the objectives to be achieved. Clear project objectives would also facilitate a follow-on evaluation. In this regard, GAO's July 2007 report provides baseline data that could inform this evaluation. Given adequate time and resources, an evaluation of the extended demonstration project could be designed and tailored to provide information to inform congressional decision making. GAO also presents potential benefits and limitations associated with options available if the demonstration project is not extended.

Over the years, the Congress has enacted over a dozen environmental statutes to protect human health and the nation’s air, land, and water from pollutants. EPA is charged with implementing these statutes and their associated regulations. EPA, in turn, has delegated a growing number of its responsibilities to the states. Since the 1970s, states have expressed concerns about the burden of EPA’s oversight and reporting requirements and the lack of flexibility in federal requirements to deal with local problems. These concerns have been exacerbated as the states have been given greater responsibility without a commensurate increase in federal assistance. The statutes, regulations, and requirements that EPA places on the states are generally medium-specific. That is, a different set of statutory, regulatory, and EPA requirements is generally established to protect the air, water, and land, often without adequate consideration of the impact of one set of requirements on another. The integrated environmental management concept allows the states the flexibility to manage their activities across programs or media to establish priorities and achieve efficiencies. Our 1995 report called for EPA to address the states’ need for flexibility by working with individual states to, among other things, establish (1) how limited resources can be used most effectively and efficiently and (2) the level of oversight that takes into account the states’ ability to fulfill their environmental obligations. In addition, we recommended that EPA’s offices consult the states as early as possible before important policy decisions are made and share information on issues of interest and concern. NAPA’s principal recommendations for enhancing the EPA-state partnership also focused on increased flexibility for states. Specifically, NAPA recommended that EPA, among other things, revise its approach to oversight, rewarding high-performing states with grant flexibility, reduced oversight, and greater autonomy. NAPA also recommended that the Congress authorize EPA to consolidate program grants into an integrated environmental grant for those states whose performance warrants it. The grant’s purpose would be to make the greatest possible reductions in risks to human health and the environment. On May 17, 1995, EPA announced plans to create a National Environmental Performance Partnership System. This system is to fundamentally change the EPA-state relationship by setting new goals for environmental protection and giving the states broad flexibility to meet them. More specifically, the new system places greater emphasis on the use of environmental goals and indicators, calls for environmental performance agreements between EPA and individual states, provides opportunities for less oversight of state programs that exhibit high performance in certain areas, and establishes a greater reliance on environmental and programmatic self-assessments by the states. The plans were developed by a joint EPA-state task force. As we noted in our April 1995 report, EPA requires a good working relationship with the states because it relies upon them to manage most federal environmental programs. We believe that the historically poor EPA-state relationship has improved, but it continues to be strained, and program implementation suffers as a result. While state and federal program managers agree overwhelmingly that meeting the costs of environmental programs is their most important challenge, an improved EPA-state relationship could help by making program management more efficient and cost-effective. In addition, the states have criticized EPA’s oversight as micromanagement of state programs. EPA has taken positive, though tentative, steps toward improving its relationship with the states, in particular trying to provide the states with the flexibility to achieve cost efficiencies and to address the states’ priorities. However, one of the root causes of the agency’s past problems—a prescriptive, media-based legislative framework—remains firmly in place. The costs of implementing federal environmental requirements are significantly impacting the budgets of many state governments. For example, EPA estimated a nationwide $154 million shortfall in the National Pollutant Discharge Elimination System (NPDES) for fiscal year 1995. The financial gap between environmental programs’ needs and available resources has become the central issue in the states’ ability to meet the programs’ requirements and in the states’ relationship with EPA. This has become the central issue because prescriptive statutory, regulatory, and internal EPA requirements often exacerbate the resource problem by limiting the states’ flexibility to pursue cost-effective environmental strategies. To help the states make the best use of available program funds, in our 1995 report we recommended that EPA’s program offices work with the states—within the limitations of existing environmental law—to identify how each state’s resources can be most efficiently and effectively allocated within each program to address the state’s highest-priority environmental problems. Such an approach could be enhanced by integrating the statutory framework within which the states and EPA operate to allow the flexibility to set priorities across individual programs. In response to this problem, a major component of EPA’s National Environmental Performance Partnership System is a joint planning and priority-setting dialogue with the states that is intended to replace the current annual work plan process. This dialogue, known as Environmental Performance Partnership Agreements, is to be based on the analysis and strategic direction set by EPA’s national and regional program managers, as well as by the states. Among other things, it includes joint EPA-state planning and priority setting, which should increase the states’ input, and increased use of environmental goals and indicators, which could help provide some flexibility to program management. EPA plans for all states to have these agreements by fiscal year 1997. In theory, the use of these agreements to increase state input and flexibility could improve EPA’s relations with its state partners and reduce the costs of implementing federal environmental programs. It is difficult to assess the effectiveness of the Performance Agreements thus far because implementation began only recently. As of February 1996, 5 agreements have been completed; 12 others are under discussion. One problem that EPA and the states likely face with the agreements is that current law imposes requirements on EPA that, at times, are inconsistent with the states’ priorities. In our May 1995 testimony, we stated that providing EPA with greater flexibility to integrate environmental requirements represents a key approach to reconciling state and federal environmental concerns. As we pointed out in our April 1995 report, many state officials believe that EPA dominates the federal-state relationship, frequently imposing federal mandates over the states’ priorities, routinely second-guessing the states’ decisions, dictating the programs’ activities, and failing to involve the states in major policy decisions. As the states’ resources have grown ever tighter, disagreements over the various programs’ priorities have become more and more frequent. State program managers maintain that EPA’s inflexible approach is a major impediment to managing environmental programs efficiently. EPA officials maintain that legislative mandates and timetables frequently leave them with little or no latitude to explore what might be more cost-effective alternatives with the states. To improve EPA’s oversight of state programs, our report recommends that EPA’s regional offices negotiate with each state a level of oversight that takes into account the ability of the state to fulfill its environmental program obligations (e.g., its track record in meeting key requirements or its staffing and funding). As we recommended in our April 1995 report, as a general rule, EPA should focus on achieving improvements in environmental quality—as measured by reliable environmental indicators—without prescribing in detail how the states are to achieve these results. EPA’s National Environmental Performance Partnership System initiative embodies these recommendations by instituting differential levels of oversight based on the states’ conditions and performance. EPA’s oversight under the new system is supposed to focus on programwide, limited, after-the-fact reviews, rather than on case-by-case intervention. EPA plans for all states to participate in the new system by having Performance Agreements in place by fiscal year 1997. Although 17 states have indicated that they intend to negotiate these agreements with EPA this year, several states have opted not to participate because they are skeptical about EPA’s ability to implement such a plan as intended. While the Performance Agreements and other aspects of the National Environmental Performance Partnership System have the potential to create a more effective EPA and state working relationship, EPA has been trying for years, with only limited success, to make these types of improvements. And much work remains to reach agreement with the states on environmental goals and measures and how the states’ programs will be assessed and problems corrected. A larger concern is that during implementation of the new system or over time—especially in negotiating performance agreements with individual states—EPA program and regional officials will add back the types of controls and other requirements that the system is designed to eliminate. One of NAPA’s principal observations is that progress in protecting the environment depends on devolving responsibility to the states for administering environmental programs. NAPA concluded that EPA, in consultation with the Congress, should accomplish this goal by moving toward integrating its responsibilities under various statutes to provide the maximum flexibility needed by the states to meet their environmental priorities. As mentioned earlier, the states have long asserted that EPA places inflexible, overly prescriptive environmental requirements on them to control the amount of pollution released to the air, water, and land. EPA and the states have recently experimented, within the limits of environmental laws, with integrated environmental management, a concept under which a state focuses on a whole facility and all of its sources of pollution, rather than on a medium-specific source of pollution. For example, rather than performing multiple inspections for various environmental media, a state can incorporate inspections for all media into a single, facilitywide inspection that focuses on the production processes. The proponents of integrated management believe that the approach saves money by consolidating activities and reduces pollution by focusing on prevention rather than on various control methods, such as installing devices to treat waste after it has been produced. To determine the results being achieved under integrated management approaches, we recently completed a review of initiatives taken by Massachusetts, New York, and New Jersey to integrate their environmental inspection, permit, and enforcement regulatory activities. In summary, we found that these efforts, while generally successful, were hampered by EPA funding and reporting requirements linked to individual federal environmental statutes. In 1993, Massachusetts implemented a facilitywide inspection and enforcement approach; in 1992, New York adopted a facility management strategy under which a team directed by a state-employed manager is assigned to targeted plants to coordinate all environmental programs; and in 1991, New Jersey initiated a pilot study of using a single, integrated permit for releases of pollutants from industrial facilities, rather than separate permits for each medium. Massachusetts and New York believe that their integrated approaches have proven to be successful and are implementing them statewide. Because permits have only recently been issued as part of New Jersey’s integrated approach, officials in that state believe that it is too early to evaluate the results of the pilot study. Industry officials in the three states told us that they generally believe that integrated approaches are beneficial to the environment, achieve regulatory efficiencies, and reduce costs. For example, a New Jersey pharmaceutical manufacturer told us that its 5-year permit combines 70 air and water permits into a single permit, eliminating the need for the company to frequently renew each of the many permits. Although the states have had generally favorable experiences in their multimedia approaches, one sticking point has been coordinating the funding and reporting of these activities with EPA. Although there is some flexibility in EPA’s grant system to fund multimedia activities from EPA’s media-specific grant program, doing so has been difficult and has required the states to engage in extensive discussions and negotiations to obtain funds for these activities. For example, obtaining grant funds for a Massachusetts demonstration project required not only EPA’s approval but congressional authorization as well to shift funds from other activities. Furthermore, states can experience difficulty in reporting multimedia activities to EPA, as required under various environmental statutes. For example, while Massachusetts conducts facilitywide inspections and prepares comprehensive reports detailing the results, EPA requires the state to report the results to multiple medium-specific reporting systems, each of which has different formats, definitions, and reporting cycles. According to a Massachusetts environmental official, preparing these duplicative reports wastes resources and demoralizes staff. The new Performance Partnership grant program proposed in EPA’s fiscal year 1996 budget request could resolve the funding and reporting issues. Such grants are a step in the direction of NAPA’s recommendation that the Congress should authorize EPA to consolidate categorical grants into an integrated environmental grant for any state whose performance warrants it. EPA believes that its consolidated grants would provide the states with easier access to multimedia funding and promote the reporting of their activities to integrate the management of facilities. For example, the grants would allow the states to allocate funds to reflect local priorities, while continuing to pursue national policy objectives and fulfilling federal statutory requirements. They would also include new performance measures to simplify reporting requirements, while ensuring continued environmental protection. As long as environmental laws are media-specific and prescriptive and EPA personnel are held accountable for meeting the requirements of the laws, it will be difficult for the agency to fundamentally change its relationships with the states to reduce day-to-day control over program activities. This situation was manifested in the funding and reporting problems that resulted from the recent efforts of Massachusetts, New York, and New Jersey to integrate their environmental management activities. However, within the flexibility provided by existing environmental statutes, initiatives such as EPA’s National Environmental Performance Partnership System and its proposed Performance Partnership grants have the potential to ameliorate problems for those states interested in obtaining greater flexibility in carrying out their environmental responsibilities. The first copy of each GAO report and testimony is free. Additional copies are $2 each. Orders should be sent to the following address, accompanied by a check or money order made out to the Superintendent of Documents, when necessary. VISA and MasterCard credit cards are accepted, also. Orders for 100 or more copies to be mailed to a single address are discounted 25 percent. U.S. General Accounting Office P.O. Box 6015 Gaithersburg, MD 20884-6015 Room 1100 700 4th St. NW (corner of 4th and G Sts. NW) U.S. General Accounting Office Washington, DC Orders may also be placed by calling (202) 512-6000 or by using fax number (301) 258-4066, or TDD (301) 413-0006. Each day, GAO issues a list of newly available reports and testimony. To receive facsimile copies of the daily list or any list from the past 30 days, please call (202) 512-6000 using a touchtone phone. A recorded menu will provide information on how to obtain these lists.

GAO discussed the Environmental Protection Agency's (EPA) initiatives in response to the National Academy of Public Administration's recommendations to change the nation's approach to environmental protection, focusing on EPA attempts to improve its relationship with states. GAO noted that: (1) EPA plans to create a National Environmental Performance Partnership System, which would fundamentally change the EPA-state relationship by setting new goals for environmental protection and giving states broad flexibility to meet them; (2) although this system should allow states more input in decisionmaking, provide for joint planning, and reduce EPA oversight of states that perform well, it is too soon to assess the effectiveness of these partnership agreements; (3) states' attempts to integrate their regulatory activities across programs show potential for reducing pollution and increasing regulatory efficiency; and (4) EPA believes that its proposed consolidated grants should alleviate problems caused by inflexible federal fund allocations and duplicative reporting requirements.

In the 110 th Congress, Members have introduced numerous bills that would directly or indirectly address climate change. This report describes and compares bills that directly address climate change, as opposed to those that primarily address other issues (e.g., energy efficiency and conservation) but could have ancillary impacts on climate. In some cases, it is difficult to draw a line between direct and indirect climate change bills, because a specific bill or action may seek to achieve multiple objectives. This report focuses on legislative actions—including comprehensive bills with individual climate change titles or sections—that explicitly address climate change issues. These bills fall into six major categories: (1) research on the causes and effects of climate change and on methods to measure and predict climate change; (2) deployment of emission-reducing technologies in the United States or other countries; (3) requirements for U.S. participation in international climate agreements; (4) investments in systems to adapt to changes in climate; (5) establishment of greenhouse gas (GHG) monitoring systems as a basis for research or for any potential reduction program; and (6) implementation of mandatory GHG emission reduction programs. These categories are not mutually exclusive, and several bills address more than one of the above categories. There has been considerable interest in climate change issues in the 110 th Congress. As of the date of this report, Members have introduced more than 100 bills that would directly address climate change issues. Congress has enacted six legislation proposals that address climate change to some degree: P.L. 110-140 : The President signed the Energy Independence and Security Act of 2007 December 19, 2007. Among other provisions, some of which indirectly address GHG emissions, this act amends the Energy Policy Act of 2005 to expand the carbon capture research and development program. It also directs the Department of the Interior to conduct a national assessment of geologic storage capacity for carbon dioxide (CO 2 ), and instructs the Department of Energy to implement a program to demonstrate technologies for the large-scale capture of CO 2 from industrial sources of CO 2 . In addition, the act establishes within the Department of Transportation an Office of Climate Change and the Environment to coordinate research and implement strategies to address transportation issues associated with climate change. P.L. 110-161 : The President signed the Consolidated Appropriations Act of 2008 into law December 26, 2007. Among other provisions, this statute directs EPA to promulgate regulations that require mandatory reporting of GHG emissions "above appropriate thresholds in all sectors of the economy." The act directs EPA to develop the proposed rule by September 2008 and the final rule by June 2009. In addition, the act instructs NOAA to work with the National Academy of Sciences to establish a Climate Change Study Committee that will study climate change issues and make recommendations regarding climate change mitigation strategies. P.L. 110-181 : On January 28, 2008, the President signed the National Defense Authorization Act for Fiscal Year 2008. In addition to many non-climate related provisions, the act directs the Department of Defense to assess the risks of projected climate change to the department's facilities, capabilities, and missions. P.L. 110-229 : On May 8, 2008, the President signed the Consolidated Natural Resources Act of 2008. Among other provisions, the act requires the Secretary of Energy, when reviewing research and development activities for possible inclusion in the steel research and development initiative, to expand the plan in order to consider among steel project priorities the development of technologies that reduce GHG emissions. P.L. 110-246 : On June 18, 2008, Congress enacted (overriding the President's veto) the Food, Conservation, and Energy Act. Among many other provisions, the act (Section 2709) directs the Department of Agriculture (USDA) to establish technical guidelines to "measure the environmental services benefits from conservation and land management activities in order to facilitate the participation of farmers, ranchers, and forest landowners in emerging environmental services markets." USDA is to give priority to carbon markets. P.L. 110-343 : On October 3, 2008, the President signed the Emergency Economic Stabilization Act of 2008. Among many other provisions, the legislation provides a tax credit for select (geologic) carbon sequestration activities. In addition, the act directs the Department of Treasury to enter into an agreement with the National Academy of Sciences (NAS) to "undertake a comprehensive review of the Internal Revenue Code of 1986 to identify the types of and specific tax provisions that have the largest effects on carbon and other greenhouse gas emissions and to estimate the magnitude of those effects." NAS is to report its findings to Congress by October 3, 2010. In addition to enacted legislation, the House and Senate have passed several bills. Numerous bills have been reported out of committees. These bills address a range of climate change topics. These topics are discussed briefly below. Appendix A categorizes the bills and enacted legislation by the topics discussed below. Appendix B provides a brief summary of each bill's provisions and status in the legislative process. Global climate change is a complex issue. While most scientists agree that the climate is changing in response to GHG emissions, uncertainties concerning the causes and effects of climate change remain and are a continuing subject of extensive scientific research. These uncertainties include the potential effects on natural systems, as well as effects on social and political systems. Further, research is ongoing regarding technologies that improve efficiency, reduce fossil fuel consumption, and capture and store carbon dioxide (CO 2 ) emissions. One approach to addressing climate change is to promote the deployment and diffusion of technologies to reduce GHG emissions, such as carbon capture and storage (or sequestration). Within the legislative proposals, there are different methods of promoting technology deployment. One deployment strategy may involve tax incentives for investment in technologies to improve efficiency and/or lower emissions. Other deployment strategies would provide grants, loans, and other incentives for technology transfer to developing countries. In the 110 th Congress, some bills deal solely with technology deployment through tax incentives for lower-carbon technology or grants to develop and deploy carbon capture and sequestration, or through requirements that the federal government use technology with lower emissions. Other bills that create mandatory GHG reduction programs also include technology deployment as one component. The United States ratified the United Nations Framework Convention on Climate Change (UNFCCC) in 1992. Five years later, the United States signed the convention's Kyoto Protocol, but it was never submitted to the Senate for ratification. In 2001, President George W. Bush rejected the Kyoto Protocol and withdrew the United States from subsequent negotiations. Since that time, the United States has entered into other cooperative agreements, including the Asia-Pacific Partnership on Clean Development and Climate. This partnership focuses on voluntary action by member states to promote cleaner technology and related goals. However, U.S. participation in discussions over binding agreements has been limited. Some critics of GHG regulation argue that the effects on global GHG concentrations—and consequently the effects on climate—from any reduction scheme will be limited. Some therefore contend that investment should focus on preparing communities and systems to adapt to the effects of a changing climate. This notion is shared by some proponents of GHG regulation, who argue that because of earlier greenhouse gas emissions, some level of warming will occur regardless of mitigation activity. Those stakeholders support adaptation initiatives in concert with mitigation efforts. Pursuant to the UNFCCC, the United States publishes annual reports on its GHG emissions. The U.S. Environmental Protection Agency (EPA) reports this information using various techniques (e.g., fuel analysis for CO 2 ). The 2005 emissions estimates indicate that the three dominant sources of GHG emissions are electricity generation (33%), transportation (28%), and industry (19%). At the national level, the 1990 Clean Air Act requires most electric utilities to report their GHG emissions, but there is no overall national GHG reporting requirement. However, some states also gather data through voluntary registries or mandatory GHG emissions reporting mechanisms. The United States has no federal GHG reduction requirements, although there have been proposals to require such reductions. These proposals include "command and control" regulations and market-based techniques to limit emissions. Market-based programs typically take as their model the Clean Air Act's acid rain program, which employs a cap-and-trade design to control several air pollutants. Cap-and-trade systems set strict limits on specific emissions from a particular group of sources. Sources may reduce their own emissions or purchase credits (i.e., trade) from other sources that have reduced emissions below their individual allotment. This flexibility in who makes reductions can lead to lower costs. In an efficient market, entities that face relatively low emission-reduction costs would have an incentive to achieve extra emission reductions, because these additional reductions could be sold to entities that face higher emission-reduction costs. An entity facing higher costs could purchase allowances that would allow it to emit more than its initial emissions allotment. Total U.S. emissions may decrease or increase, depending on the entities covered, the GHGs controlled, and the emissions trading schemes. In the 110 th Congress, some bills cover just the electric utility sector, while others cover most or all emissions throughout the economy. Another market-based option is to establish a "carbon tax"—a direct tax on GHG emissions or on the fuels that generate emissions when combusted. To the extent that emissions reductions can be achieved at costs lower than the tax rate, those reductions will be undertaken; if emissions reductions are more expensive, covered entities would opt to pay the tax. In this way, there is an upper limit to the cost of the control program. Members have introduced several bills in the 110 th Congress that would control emissions from only the electric utility sector. The rationale for such a policy is that electricity generation emits the highest percentage of GHGs by sector, and the number of covered sources would be relatively small compared to other sectors (e.g., transportation). Moreover, power plants have experience with reporting (if not reducing) their CO 2 emissions under the Clean Air Act. Sector-specific bills generally fall into two categories: (1) bills that would control only GHGs and (2) bills that would control both GHGs and other pollutants such as mercury, sulfur dioxide, and nitrogen oxides. This latter category of bills is generally referred to as "multi-pollutant" legislation. A broader approach is to require emission reductions from multiple economic sectors. Several bills in the 110 th Congress would apply to most or all U.S. GHG emissions. These bills are often described as an "economy-wide" GHG reduction approach. These bills vary in their coverage: some bills cover the most high-emitting sectors (e.g., electricity generation, industry, and transportation) while excluding other sectors (e.g., residential and commercial); other bills grant EPA broad authority to establish regulations to reduce the most emissions at the lowest cost. Appendix A. Major Focus Areas of Climate Change Bills and Enacted Legislation in the 110 th Congress Appendix B. Key Provisions of Climate Change Legislation in the 110 th  Congress

Congressional interest in climate change legislation has grown in recent years. In the 110th Congress, Members have introduced numerous bills that directly address various aspects of climate change. These bills cover a wide spectrum, ranging from climate change research to comprehensive greenhouse gas (GHG) emissions cap-and-trade programs. As of the date of this report, Congress has enacted six broader pieces of legislation that—among many other non-climate-related provisions—address climate change in some fashion: P.L. 110-140 expands the carbon capture research and development program, requires a national assessment of geologic storage capacity for CO2, and supports technologies for the large-scale capture of CO2 from industrial sources. The act also establishes an Office of Climate Change and the Environment to coordinate research and implement strategies to address climate change-related transportation issues. P.L. 110-161 directs the Environmental Protection Agency (EPA) to develop regulations that establish a mandatory GHG reporting program that applies "above appropriate thresholds in all sectors of the economy." P.L. 110-181 directs the Department of Defense (DOD) to assess the risks of projected climate change to the department's facilities, capabilities, and missions. P.L. 110-229 requires the Secretary of Energy, when reviewing research and development activities for possible inclusion in the steel research and development initiative, to expand the plan in order to consider among steel project priorities the development of technologies that reduce GHG emissions. P.L. 110-246 directs the Department of Agriculture (USDA) to establish technical guidelines to "measure the environmental services benefits from conservation and land management activities in order to facilitate the participation of farmers, ranchers, and forest landowners in emerging environmental services markets." USDA is to give priority to carbon markets. P.L. 110-343 provides a tax credit for select (geologic) carbon sequestration activities. In addition, the National Academy of Sciences (NAS) is "to identify the types of and specific tax provisions that have the largest effects on carbon and other greenhouse gas emissions and to estimate the magnitude of those effects." NAS is to report its findings to Congress by October 3, 2010. This report briefly discusses the basic concepts on which climate change bills are based, and compares major provisions of the bills in each of the following categories: climate change research; emissions reduction technologies; U.S. actions pursuant to international emission reduction agreements; adaptation to the effects of climate change; GHG reporting and registration; and GHG emissions reduction programs.

Trade Adjustment Assistance Community College and Career Training (TAACCCT) grants are competitive grants to institutions of higher education (IHEs) to support career training programs that can be completed in two years or less. Statute specifies that TAACCCT-funded programs should target workers who have been adversely affected by international trade and are eligible for the Trade Adjustment Assistance for Workers (TAAW) program. TAAW offers subsidized training and other supports for displaced workers who have lost their jobs due to foreign trade. While the TAACCCT program targets TAAW-eligible workers, other adults may also be served by programs with TAACCCT funding. The program is administered by the Department of Labor (DOL). TAACCCT was created as part of the American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5 ) and is codified as part of the Trade Act of 1974, as amended. The Health Care and Education Reconciliation Act of 2010 ( P.L. 111-152 ) provided four years of annual mandatory funding through FY2014. Additional details are in the " Legislative and Funding Histories " section at the end of this report. The statutory provisions of TAACCCT are somewhat general. DOL has not established regulations related to the program, so the department's solicitation for grant applications (SGA) clarifies many details. To present the most up-to-date information possible, this report will focus on program elements and applicant requirements as they are conveyed in the most recent SGA, issued in April 2014. Statute authorizes grants for "developing, offering, or improving educational or career training programs" for TAAW-eligible workers. The most recent SGA operationalizes these aims by establishing three program objectives: (1) increasing the attainment of employment-related credentials, (2) developing, implementing, and replicating innovative training curricula, and (3) improving employment outcomes. The most recent SGA also notes that while the statutory purpose of the program is to meet the training needs of TAAW-eligible workers, it expects that grantees will develop and deliver programs that are appropriate for a broad range of adult workers. The SGA also specifies that TAACCCT grants emphasize capacity-building and the transferability and scalability of the projects they fund. All intellectual property created under the grants is openly licensed for free use, adaptation, and improvement by other education and training providers. Statute specifies that eligible institutions are IHEs that offer programs that can be completed in no more than two years. The most recent SGA further specifies that qualified IHEs include public, private not-for-profit, and private for-profit institutions. Grantee institutions must partner with other local stakeholders. These partnerships are described in the " Core Elements of TAACCCT Projects " section later in this report. IHEs may apply for TAACCCT funding as an individual institution or as a member of a multi-institution consortium. Consortia may be from a single state or may be from multiple states if the consortium members share a common labor market. Each consortium application must specify a lead institution that will have fiscal and administrative responsibility over the grant. Institutions in the 50 states, the District of Columbia, Puerto Rico, and other U.S. territories are eligible to apply for TAACCCT grants. Since the TAAW program is limited to workers in the 50 states, the District of Columbia, and Puerto Rico, the SGA notes that U.S. territories other than Puerto Rico may be at a disadvantage in the application process because they do not have TAAW-eligible workers and therefore will not be able to meet all of the SGA's criteria. The SGA states the intention of awarding approximately $150 million of the $450 million available for grants in FY2014 to single-institution applicants. The remaining funds (approximately $300 million) are intended for larger awards to consortium applicants. As required by statute, at least 0.5% of total funds for grants (approximately $2.25 million) must be allocated to institutions in each state. This minimum can be met through a single-institution award or as an institution's share of funding as part of a consortium. Allowable uses of TAACCCT funds are the development, improvement, and expansion of education and career training programs. This may include both personnel and non-personnel costs. Grant funds may be used to hire and train staff that will develop or deliver new curricula or other program components. Allowable non-personnel costs include purchasing classroom supplies or technological investments that directly support grant activities. Capital expenditures may be allowable with approval from DOL. Non-allowable activities include any kind of payment to training participants, including using grant funds for participants' tuition, fees, or other personal expenditures. In all cases, TAACCCT funds must supplement and not supplant any other sources that are funding existing activities. The most recent SGA specified that grants are for a 48-month period of performance. Grantees must develop and offer programs within the first 36 months and spend the final 12 months gathering information and reporting outcome data. Statute establishes basic requirements for grant proposals and general criteria for choosing grantees. The law also specifies that DOL will promulgate guidelines for the submission of grant proposals. These guidelines have been issued through SGAs and both clarify and expand upon the requirements established in statute. Statute specifies that grant proposals must describe the proposed project and how it will develop, offer, or improve a training program; how the project will meet the needs of TAAW-certified workers in the community; any previous experience the applicant has in providing training to TAAW-eligible workers (a lack of experience does not disqualify an applicant); outreach the applicant has conducted in the community to identify unmet training needs that will likely result in employment outcomes; and outreach to local employers who demonstrate a commitment to hiring individuals who partake in the proposed training. Statute further specifies that, when awarding grants, DOL will consider the merits of the proposal to develop, offer, or improve training programs to be made available to TAAW-eligible workers; the employment opportunities available to workers who complete a program that is developed, offered, or improved by TAACCCT funding; and the prior and anticipated demand for training programs by TAAW-eligible workers served by the applying institution as well as the capacity of existing programs to meet anticipated demand. The most recent SGA specifies an expanded set of requirements, establishing six core elements of TAACCCT projects. The project's approach, which accounts for 55% of the criteria on which applications are evaluated, must demonstrate the following core elements. 1. Evidence-based design. Proposed programs must demonstrably improve educational and employment outcomes. Applicants replicating or adapting existing strategies should provide evidence of effectiveness. Applicants proposing new strategies should cite "preliminary research findings, related research findings, and/or reasonable hypotheses to support the design of the program[.]" 2. Career Pathways . Applicants must develop a curriculum that offers a clear sequence of coursework and/or credentials focused on one or more industry sectors. Applicants must also offer accelerated and contextualized remediation, competency-based assessments, stacked and latticed credentials, and transferability of credits to other two-year and four-year institutions within the state or consortium. 3. Advanced online and technology-enabled learning . TAACCCT proposals must consist of courses that are conducted online, in hybrid (combining traditional and online coursework), or otherwise incorporate technology. The SGA suggests that applicants may use technology or online courses to "enable rolling and open enrollment processes, modularize content delivery, simulate assessments and training, and accelerate course delivery strategies." The SGA also expressed interest in technology that will customize content to the student's prior knowledge or expand upon technology developed in prior TAACCCT projects. 4. Strategic alignment with the workforce system and other stakeholders . Applicants must partner with at least one local Workforce Investment Board and the state agency that administered the TAA for workers program. Applicants must illustrate local needs and avoid duplication by demonstrating alignment with the governor's Economic Development plan and the state's Workforce Investment Act-Wagner Peyser (WIA-WP) integrated workforce plan. Applicants are also encouraged to coordinate their proposal with any private sector or philanthropic entities that may align with the proposed project. 5. Sector strategies and employer engagement . Applicant institutions must partner with at least two employers and a regional industry representative for each industry that the proposed program targets. These partners are expected to support curriculum development and provide work-based training opportunities, as appropriate. 6. Alignment with previously-funded TAACCCT projects . Applicants are expected to research projects that received funding under prior rounds of TAACCCT and design their applications to decrease duplication and strengthen the geographic reach of projects. Since all resources developed in previous TAACCCT grants are openly licensed, applicants may also align with prior grantees by incorporating existing resources into a new curriculum. Statute requires DOL to report annually to the Senate Committee on Finance and the House Committee on Ways and Means on each TAACCCT grant awarded and the impact of each award on TAAW-eligible workers. The SGA establishes reporting requirements for grantees. Grantees must provide quarterly financial reports, quarterly progress reports, and annual performance reports. The last annual performance report will serve as the grant's final performance report and should include annual and cumulative information on the grant's activities. Single institution grantees will submit data directly to DOL. Consortium member institutions will submit reports to the consortium's lead institution, which will compile data and submit a single report to DOL. The SGA specifies that each TAACCCT application must also include a budget, design, and implementation plan for a third-party evaluation of the proposed project. All evaluation designs must include (1) impact or outcome analysis of participants in grant-funded activities, and (2) implementation analysis. Grantees must also participate in a national evaluation that will be conducted by a contractor on behalf of DOL. TAACCCT was created by the Trade Globalization Adjustment Assistance Act of 2009 (TGAAA), part of the ARRA. TAACCCT was in a subsection of TGAAA that created several programs targeting communities that were adversely affected by international trade. The Trade Adjustment Assistance Extension Act of 2011 (TAAEA; Title II of P.L. 112-40 ) repealed all components of the subsection except TAACCCT. The original statute outlined the provisions of the TAACCCT and authorized $40 million in each of FY2009 and FY2010 as well as $10 million for the first quarter of FY2011. It also specified that no institution could receive more than one grant or a grant in excess of $1 million. No funds were appropriated for TAACCCT until March 30, 2010, when President Obama signed the Health Care and Education Reconciliation Act of 2010 ( P.L. 111-152 ). This act provided $500 million in mandatory funding for TAACCCT in each of the four years from FY2011 through FY2014 (see Table 1 ). This act also specified that institutions in each state receive at least 0.5% of each year's TAACCCT funding and explicitly supersedes the $1 million per-state limit established by prior law. Funding levels in FY2013 and FY2014 were reduced under sequestration. The first SGA for TAACCCT funding was issued by DOL in January 2011 and closed in April 2011. DOL announced the grantees under this SGA on September 27, 2011. Among the grantees were 17 single institution applicants, 18 single-state consortia, and 5 multi-state consortia. Each state received at least $2.5 million in funding either directly or as their share of a grant to a multi-state consortium. The second SGA was issued in February 2012 and closed May 24, 2012. DOL announced the grantees on September 19, 2012. Among the grantees were 27 community college and university consortia and 27 individual institutions. In its announcement, DOL stated that the 25 states without a winning submission for an individual institution would each be contacted to develop a qualifying project that would be awarded $2.5 million. The third SGA was issued in April 2013. DOL announced the grantees September 18, 2013. The grants included 23 awards to individual institutions and 20 awards to consortia. In its announcement, DOL stated that 14 states and territories were not awarded funds during the competitive process and would be contacted by DOL to develop a qualifying project that would be awarded a grant of approximately $2.5 million. The fourth SGA was issued in April 2014. This SGA represents the final round of TAACCCT grants under the funding provided under HCERA. The SGA's closing date was July 7, 2014.

Trade Adjustment Assistance Community College and Career Training (TAACCCT) grants are competitive grants to institutions of higher education to support the development, offering, and improvement of career training programs that can be completed in two years or less. The program targets workers who have been adversely affected by international trade, though non-trade-affected workers may also participate in TAACCCT-funded programs. TAACCCT is administered by the Department of Labor (DOL). It was created by the American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5) and is authorized under the Trade Act of 1974, as amended. The Health Care and Education Reconciliation Act of 2010 (HCERA, P.L. 111-152) provided $500 million per fiscal year in mandatory appropriations for TAACCCT for FY2011 through FY2014. In FY2013 and FY2014, the funding for the program was reduced to $474.5 million and $464 million, respectively, due to sequestration. Funds equal to at least 0.5% of the total annual funding for grants must be awarded to institutions in each state. TAACCCT grantees may use funds to design, develop, and offer career training programs. Allowable uses of funds include personnel as well as materials and other expenses related to content development and delivery. Under the most recent solicitation for grant applications (SGA), TAACCCT grants provide a 48-month period of performance. This period includes 36 months for the design, development, and delivery of a training program and 12 months for data gathering and evaluation. Statute requires that grant applications include a description of the proposed project and how it will serve trade-affected workers. Statute further specifies that grants will be judged on the merit of the proposed project and the local employment prospects for individuals who would complete the proposed program. SGAs have specified an expanded set of criteria for program grants to operationalize the aims of the TAACCCT program. The first SGA was issued in January 2011 and grantees were announced in September 2011. The second SGA was issued in February 2012 and grantees were announced in September 2012. The third SGA was issued in April 2013 and grantees were announced in September 2013. The fourth SGA, representing the final round of grants under the HCERA funding, was issued in April 2014.

The federal facilities inventory contains a diverse portfolio of assets that are used for a wide variety of missions. According to the fiscal year 2001 financial statements of the U.S. government, the federal government’s real property assets—including land— are worth about $328 billion. In terms of facilities, the latest available governmentwide data from GSA indicated that as of September 30, 2000, the federal government owned and leased approximately 3.3 billion square feet of building floor area worldwide. As shown in figure 1, the Department of Defense (DOD), U.S. Postal Service (USPS), General Services Administration (GSA), and Department of Veterans Affairs (VA) hold the majority of the owned facility space. Figure 1 also shows that DOD, the Department of State (State), GSA, and USPS lease the most space. A set of federal laws, regulations, executive orders, and executive memorandums direct federal facility managers to reduce the energy and environmental impacts of the buildings they manage. In enacting the Federal Energy Management Improvement Act of 1988 (FEMIA), Congress recognized, among other things, that the federal government is the largest single energy consumer in the nation, and that the cost of meeting the federal government’s energy requirements is substantial. The purpose of FEMIA, as amended, is “to promote the conservation and the efficient use of energy and water and the use of renewable energy sources by the federal government.” FEMIA, as amended, sets forth energy performance requirements for federal buildings, establishes the use of life cycle methods and procedures for application of energy conservation measures, and establishes an interagency energy management task force to coordinate the activities of the federal government in promoting energy conservation. The Energy Policy Act of 1992 (EPACT) was intended to further enhance federal energy management practices. In this regard, it requires the GSA Administrator to hold biennial conference workshops in each of the federal regions on energy management, conservation, efficiency, and planning strategy; requires agencies to conduct energy management training; requires the establishment of energy audit teams to perform energy audits of federal facilities; and requires agencies to identify energy efficient products in carrying out their procurement and supply functions. Several executive orders direct agencies to employ green practices in facility and fleet management, and executive memorandums encourage agencies to use energy saving performance contracts and environmentally friendly landscaping practices. In addition to facilities-related initiatives, EPACT establishes a minimum number of alternative fuel vehicles for federal agencies beginning in fiscal year 1993 and requires the Secretary of Energy to carry out an alterative fuel vehicle program. According to the most recently available data from GSA, the federal government operated 596,114 vehicles in fiscal year 2001. Alternative fuels include ethanol, methanol, natural gas, propane, and electricity. Alternative fuel vehicles operate on these fuels, although some of them can operate on gasoline. In total, the Energy Information Administration estimated that the federal government operated 68,890 alternative fuel vehicles in 2002. The primary program for promoting energy efficiency in the federal government is DOE’s Federal Energy Management Program (FEMP). Established in 1973, FEMP works to reduce the energy cost and environmental impact of federal government practices by advancing energy efficiency and water conservation, promoting the use of distributed and renewable energy, and improving utility management decisions at federal sites. FEMP provides a range of services to federal agencies aimed at helping facility managers achieve greater energy efficiency and cost- effectiveness in areas such as new construction, building retrofits, equipment procurement, and utility management. FEMP also advises agencies on establishing partnerships with the private sector to improve energy efficiency, using innovative technologies, and addressing energy- related policy matters as they pertain to federal facilities. For example, one way that FEMP helps agencies become more energy efficient is through utility energy services contracts. In these contracts, the utility company typically arranges financing and constructs the necessary capital improvements to the agencies’ building systems. In return, the utility is repaid over the term of the contract from the cost savings generated by the newly installed, energy-efficient improvements. This allows agencies to become more energy efficient while minimizing the up-front costs of the capital improvements. According to DOE, since 1995 more than 45 electric and gas utilities have provided project financing for energy and water efficiency upgrades at federal facilities, investing more than $600 million through these contracts. As part of its central management responsibilities in federal real property, GSA encourages agencies to use green or sustainable design approaches in federal construction and renovation projects. The objectives of sustainability are to reduce consumption of nonrenewable resources, minimize waste and impact on the environment, optimize site potential, minimize nonrenewable energy consumption, use environmentally preferable products, protect and conserve water, enhance indoor environmental quality, and optimize operational and maintenance practices. The end result of a sustainable design is a healthier working environment that costs less to maintain over time than traditional methods and is better for the environment. To measure sustainability efforts, GSA and other agencies have begun using the Leadership in Energy and Environmental Design (LEED) rating system. The U.S. Green Building Council—a coalition of leaders from across the building industry working to promote buildings that are environmentally responsible, profitable and healthy places to live and work—developed LEED to help apply principles of sustainable design and development to facilities projects. According to information from GSA, by using LEED, agencies can gauge the impact of design decisions on energy efficiency and other sustainability factors. By using the principles of sustainable, green design, agencies are trying to improve energy efficiency, reduce life-cycle costs, and reduce environmental impacts in the design, construction, and operation of federal facilities. Some examples of facilities where these approaches have been applied are the White House, the Pentagon, and the Zion Canyon National Park Visitor Center. According to information from DOE, in 1993 a team of experts from several federal agencies and private organizations helped create a “greening plan” for the White House to be implemented as part of ongoing facility maintenance and operation. Measures taken included changes to the building envelope to reduce energy loss through the roof, windows, and walls; and modifications to the lighting systems to increase efficiency and maximize natural lighting. In 1999, DOE estimated that these and other efforts resulted in cost savings of approximately $300,000 annually through reductions in energy, water, landscaping, and waste removal costs. More recently, according to information from the Office of the Federal Environmental Executive, the White House installed its first-ever solar electric system in late 2002. This included putting solar panels on the roof of the complex’s primary maintenance building and installing two solar thermal systems to heat the pool and spa and provide domestic hot water. According to information from DOE, DOD developed and implemented plans to reduce building energy use and incorporate environmentally sensitive materials, including materials that require the least energy to produce and that can be recycled after use, as part of an extensive $1.1 billion renovation of the Pentagon. As part of these efforts, DOD constructed a new state-of-the-art heating and ventilation plant, modified and insulated the building envelope to increase energy efficiency, and built irrigation systems that use water from the nearby Potomac River to irrigate areas around the building. DOD also built two solar electric systems to demonstrate the reliability and feasibility of using solar energy. One of the goals of the renovation project is to cut energy costs by up to 30 percent by fiscal year 2005, which according to DOD officials could save between $4 million and $5 million each year. Energy efficient design was used, according to information from DOE, in constructing the new Zion National Park Visitor Center and Transportation Center at Zion National Park in Utah that opened in May 2000. According to DOE, the National Park Service worked with DOE to create a design that preserves the natural beauty of the park while saving energy and money. Innovative features included systems that work to naturally cool or heat the facility, electricity producing solar panels, and efficient landscaping that complements the building and reduces the need for irrigation. Overall, DOE predicts that these features will save about $14,000 a year. Figure 2 shows the new Zion National Park Center. In addition to these examples, our work at the Government Printing Office (GPO) and GSA in recent years illustrated the potential cost benefits of investing in energy efficiency. For example: At GPO, the Potomac Electric Power Company (PEPCO) estimated that GPO could save over $400,000 a year on energy and maintenance costs by replacing its outdated air conditioning chillers with new, more energy efficient chillers. We also reported that PEPCO had recommended that GPO consider upgrading its energy inefficient lighting at an estimated cost of $1.6 million to achieve an estimated $800,000 in annual energy savings. According to GPO, it plans to have the chiller project completed in April 2003 and the lighting upgrade completed by May 2003. In our work on the backlog of repair and alteration needs in GSA- controlled federal buildings, we found that 44 buildings in GSA’s inventory each had $20 million or more in repair and alteration backlogs. Many of the repair and alteration needs in these buildings had a direct impact on the energy efficiency of the buildings, including aging and inefficient plumbing, heating, ventilation, and air conditioning systems. For example, the Dwight D. Eisenhower Building in Washington, D.C., had a repair and alteration backlog of $216 million, which included the need to address the building’s antiquated air conditioning system. GSA officials said that this system, which uses about 250 individual window units, is outdated and not efficient in cooling the building or conserving energy. Figure 3 shows an individual air-conditioning unit in a window in the Eisenhower building. Despite the possible benefits of using energy efficient, green approaches in federal construction and renovation projects, available data indicate that some agencies believe they face significant obstacles in implementing these approaches. In April 2001, the U.S. Green Building Council surveyed 11 federal real-property-holding agencies about their green building activities. Among other things, the survey asked the agencies to identify any obstacles they face in achieving green building goals and objectives. The obstacles identified by the agencies generally fell into the following areas: Many architects, engineers, agency stakeholders, contractors, and customers are not knowledgeable about green building practices and technology. The survey respondents generally said that this lack of knowledge and expertise made it difficult to design, build, and promote green buildings. Respondents noted that green projects might have higher initial costs, but actually can be more cost-effective over the life of the facility and have other benefits. The higher initial costs can be more difficult to justify to decisionmakers. Related to higher initial costs, respondents expressed concern that it can be difficult to get top agency leaders to make green buildings a management priority. Consequently, the respondents felt that funding decisions are sometimes made without adequate input from design and construction professionals. Some of the benefits of green buildings are difficult to quantify. For example, the respondents noted that good measures exist for energy and cost savings, but that many green projects also improve employee productivity and well-being. Further, they said that some higher-priced building materials are better for the environment, which is a benefit difficult to quantify. At a time when budget constraints will be pervasive, the higher up-front costs of energy efficient designs could prove to be an especially challenging obstacle. As a result, less costly approaches that are less energy efficient could “look cheaper” in a single year’s appropriation because life cycle costs—including the savings that would result from energy efficient designs—generally occur in later years. In addition to efforts to make federal facilities more energy efficient, other initiatives have attempted to reduce the nation’s consumption of petroleum fuels in transportation through the use of alternative fuels in the federal vehicle fleet. In particular, EPACT set broad goals for replacing the transportation sector’s use of petroleum fuels by at least 10 percent by the year 2000 and at least 30 percent by the year 2010. To help meet these goals, this act required that the federal government, as well as state governments and certain other fleet operators, purchase vehicles that run on alternative fuels, such as ethanol, methanol, natural gas, propane, and electricity, among others. Further, the act specified that, in 1996, 25 percent of the new vehicles purchased by the federal government should operate on alternative fuels, with the target percentage increasing to 33 percent in 1997, 50 percent in 1998, and 75 percent in 1999 and beyond. Based on our assessment in 2000, the federal government as a whole has made progress in acquiring alternative fuel vehicles, although it has not always met the act’s annual targets, as shown in table 1 below. Further, procurement of these vehicles has been inconsistent across federal agencies: Some agencies have exceeded their purchase mandates in a year when others acquired very few or no alternative fuel vehicles. For example, in 1998, USPS acquired 10,000 ethanol alternative fuel vehicles to deliver the mail. This purchase was the major reason why the federal government collectively met the mandated acquisition target of 50 percent (12,362 alternative fuel vehicles) for that year. The federal fleet’s acquisition of alternative fuel vehicles has not reduced gasoline consumption as much as hoped for several reasons. For example, the act does not establish targets for use of alternative fuels—just the acquisition of vehicles that can run on them. However, some of the alternative fuel vehicles that federal agencies have purchased can also run on gasoline, and fleet officials told us individuals driving the vehicles often refuel with gasoline because it is much more convenient to find gasoline refueling stations than refueling stations that supply alternative fuels. In addition, some drivers have been reluctant to use alternative fuel vehicles because of safety concerns or a lack of familiarity with the vehicles’ technology and so choose to use the agencies’ gasoline powered vehicles. According to officials at DOE, the act’s mandates for purchases of alternative fuel vehicles by federal and other fleets were designed to demonstrate the use of the vehicles and stimulate purchases of them by the general public. Some supporters of the mandates believed federal and other fleets would demand enough alternative fuel vehicles to create a general market for these vehicles. However, the vehicles in federal and other fleets represent a small proportion of the vehicles on the road. As a result, according to DOE, if all of these fleets met the act’s targets for alternative fuel vehicles, the use of alternative fuels by these vehicles would represent less than 1 percent of petroleum fuels used in 2010—far below the act’s goals of 10 and 30 percent replacement in 2000 and 2010, respectively. In addition, to reach the 10-percent goal, DOE estimates sales of alternative fuel vehicles nationwide would have to grow by about 1.5 to 1.9 million vehicles per year. By comparison, the entire production of Ford’s passenger cars in 1996 was slightly more than 1.4 million.

GAO testified that constructing and operating buildings requires enormous amounts of energy, water, and materials and creates large amounts of waste. How agencies manage their facilities, along with the vehicles they use to accomplish their missions, has significant cost implications and greatly affects the environment. According to the Department of Energy, energy management is one of the most challenging tasks facing today's federal facilities manager, and sound energy management includes using energy efficiently, ensuring reliable supplies, and reducing costs whenever possible. The federal role in energy conservation was also highlighted in the President's National Energy Policy, in which the President directed heads of executive departments and agencies to "take appropriate actions to conserve energy use at their facilities to the maximum extent consistent with the effective discharge of public responsibilities." With approximately 3.3 billion feet of facility space and over one-half million automobiles, the federal government is the largest single energy consumer in the nation. Various laws, regulations, and executive memorandums direct federal facility managers to reduce energy consumption and environmental impacts of the buildings they manage. Agencies also must follow other requirements for the acquisition and use of alternative fuel vehicles, which use fuels like methanol, propane, and natural gas, to name a few. In constructing and renovating facilities, agencies have begun using "green" design approaches, which are intended to result in energy efficiency and minimal impact on the environment. Such approaches have been used at the White House, Pentagon, and the Zion National Park Visitor Center. Despite the possible benefits, some agencies believe they face obstacles in employing green practices in construction and renovation projects. These include key stakeholders--architects, engineers, agency staff--who are not familiar with green approaches, higher initial costs of green projects, difficulty getting agency management buy-in, and difficulty quantifying the benefits of green facility designs. In addition to efforts to make federal facilities more energy efficient, the federal government has also attempted to reduce the nation's consumption of petroleum fuels in transportation through the use of alternative fuel vehicles in the federal vehicle fleet.

The federal government has long played a key role in the country's information technology (IT) research and development (R&D) activities. The government's support of IT R&D began because it had an important interest in creating computers and software that would be capable of addressing the problems and issues the government needed to solve and study. One of the first such problems was calculating the trajectories of artillery and bombs; more recently, such problems include simulations of nuclear testing, cryptanalysis, and weather modeling. That interest continues today. These complex issues have led to calls for coordination to ensure that the government's evolving needs (e.g., homeland security) will continue to be met in the most effective manner possible. Established by the High-Performance Computing Act of 1991 ( P.L. 102-194 ), the Networking and Information Technology Research and Development (NITRD) Program is the primary mechanism by which the federal government coordinates its unclassified networking and information technology (NIT) R&D investments. Eighteen federal agencies, including all of the large science and technology agencies, are formal members of the NITRD Program, with many other federal entities participating in NITRD activities. The program aims to ensure that the nation effectively leverages its strengths, avoids duplication, and increases interoperability in such critical areas as supercomputing, high-speed networking, cybersecurity, software engineering, and information management. Figure 1 illustrates the organizational structure of the NITRD Program. The National Coordinating Office (NCO) coordinates the activities of the NITRD Program. The NCO was established in September 1992 and was initially called the National Coordination Office for High Performance Computing and Communications (NCO/HPCC). Its name has changed several times over the years; since July 2005, it has been called the National Coordination Office for Networking and Information Technology Research and Development (NCO/NITRD). The NCO/NITRD supports the planning, coordination, budget, and assessment activities of the program. The NCO's role in the NITRD enterprise is recognized in the National Science and Technology Council (NSTC) charters, authorizing NITRD Program structures as well as in legislation and congressional hearings. The director of the White House Office of Science and Technology Policy (OSTP) appoints a director for the NCO. The director of the NCO reports to the director of the White House Office on Science and Technology Policy (OSTP). The NCO supports the National Science and Technology Council's Subcommittee on NITRD (also called the NITRD Subcommittee). The NITRD Subcommittee provides policy, program, and budget planning for the NITRD Program and is composed of representatives from each of the participating agencies, OSTP, the Office of Management and Budget (OMB), and the NCO. NITRD Program activities are described under a set of seven Program Component Areas (PCAs), 10 working groups (see Figure 1 ), and a number of Interagency Working Groups, Coordinating Groups, Senior Steering Committees, and Communities of Practice (see Figure 2 ). The President's FY2017 budget request for the NITRD Program is $4.54 billion, an increase of $0.05 billion, or approximately 1.11%, compared to the $4.49 billion FY2016 estimate. The overall change is due to both increases and decreases in individual agency NITRD budgets. The NITRD budget is an aggregation of the IT R&D components of the individual budgets of NITRD participating agencies and is reported in the annual release of the Networking and Information Technology Research and Development Program Supplement to the President's Budget . The NITRD budget is not a single, centralized source of funds that is allocated to individual agencies. In fact, the agency IT R&D budgets are developed internally as part of each agency's overall budget development process. These budgets are subjected to review, revision, and approval by the OMB and become part of the President's annual budget submission to Congress. The NITRD budget is then calculated by aggregating the IT R&D components of the appropriations provided by Congress to each federal agency. An interactive history of NITRD Program funding, dating back to 1991, is available online at http://www.nitrd.gov/open/index.aspx . In the early 1990s, Congress recognized that several federal agencies had ongoing high-performance computing programs, but no central coordinating body existed to ensure long-term coordination and planning. To provide such a framework, Congress passed the High-Performance Computing Program Act of 1991 to improve the interagency coordination, cooperation, and planning of agencies with high-performance computing programs. In conjunction with the passage of the act, OSTP released Grand Challenges: High-Performance Computing and Communications . That document outlined an R&D strategy for high-performance computing and communications and a framework for a multi-agency program, the HPCC Program. The NITRD Program is part of the larger federal effort to promote fundamental and applied IT R&D. The government sponsors such research through a number of channels, including federally funded research and development laboratories, such as Lawrence Livermore National Laboratory; single-agency programs; multi-agency programs, including the NITRD Program, but also programs focusing on nanotechnology R&D and combating terrorism; funding grants to academic institutions; and funding grants to industry. In general, supporters of federal funding of IT R&D contend that it has produced positive results. In 2003, the Computer Science and Telecommunications Board (CSTB) of the National Research Council released a "synthesis report" based on eight previously released reports that examined "how innovation occurs in IT, what the most promising research directions are, and what impacts such innovation might have on society." The CSTB's observation was that the unanticipated results of research are often as important as the anticipated results. For example, electronic mail and instant messaging were byproducts of (government-funded) research in the 1960s that was aimed at making it possible to share expensive computing resources among multiple simultaneous interactive users. Additionally, the report noted that federally funded programs have played a crucial role in supporting long-term research into fundamental aspects of computing. Such "fundamentals" provide broad practical benefits but generally take years to realize. Furthermore, supporters state that the nature and underlying importance of fundamental research makes it less likely that industry would invest in and conduct more fundamental research on its own. As noted by the CSTB, "companies have little incentive to invest significantly in activities whose benefits will spread quickly to their rivals." Further, in the board's opinion: Government sponsorship of research, especially in universities, helps develop the IT talent used by industry, universities, and other parts of the economy. When companies create products using the ideas and workforce that result from Federally-sponsored research, they repay the nation in jobs, tax revenues, productivity increases, and world leadership. Another aspect of government-funded IT R&D is that it often leads to open standards, something that many perceive as beneficial, encouraging deployment and further investment. Industry, on the other hand, is more likely to invest in proprietary products and will typically diverge from a common standard if it sees a potential competitive or financial advantage; this happened, for example, with standards for instant messaging. Finally, proponents of government R&D support believe that the outcomes achieved through the various funding programs create a synergistic environment in which both fundamental and application-driven research are conducted, benefitting government, industry, academia, and the public. Supporters also believe that such outcomes justify government's role in funding IT R&D as well as the growing budget for the NITRD Program. Critics have asserted that the government, through its funding mechanisms, may set itself up to pick "winners and losers" in technological development, a role more properly residing with the private sector. For example, the size of the NITRD Program could encourage industry to follow the government's lead on research directions rather than selecting those directions itself. Overall, the CSTB stated that government funding appears to have allowed research on a larger scale and with greater diversity, vision, and flexibility than would have been possible without government involvement. There has been no legislative activity related to the NITRD Program in the 115 th Congress. Federal IT R&D is a multi-dimensional issue involving many government agencies working together toward shared, complementary, and disparate goals. Many observers believe that success in this arena requires ongoing coordination among government, academia, and industry. Issues related to U.S. competitiveness in high-performance computing and the direction the IT R&D community has been taking have remained salient over the last 5 to 10 years and include the United States' status as the global leader in high-performance computing research; the apparent ongoing bifurcation of the federal IT R&D research agenda between grid computing and supercomputing capabilities; the possible overreliance on commercially available hardware to satisfy U.S. research needs; and the potential impact of deficit cutting on IT R&D funding. The NITRD Program is governed by two laws. The first, the High-Performance Computing Act of 1991 ( P.L. 102-194 ), expanded federal support for high-performance computing R&D and called for increased interagency planning and coordination. The second, the Next Generation Internet Research Act of 1998 ( P.L. 105-305 ), amended the original law to expand the mission of the NITRD Program to cover Internet-related research, among other goals. High-Performance Computing Act of 1991 The High-Performance Computing Act of 1991 ( P.L. 102-194 ) was the original enabling legislation for what is now the NITRD Program. Among other requirements, it called for the following: Setting goals and priorities for federal high-performance computing research, development, and networking. Providing for the technical support and research and development of high-performance computing software and hardware needed to address fundamental problems in science and engineering. Educating undergraduate and graduate students. Fostering and maintaining competition and private sector investment in high-speed data networking within the telecommunications industry. Promoting the development of commercial data communications and telecommunications standards. Providing security, including protecting intellectual property rights. Developing accounting mechanisms allowing users to be charged for the use of copyrighted materials. This law also requires an annual report to Congress on grants and cooperative R&D agreements and procurements involving foreign entities. Next Generation Internet Research Act of 1998 The Next Generation Internet Research Act of 1998 ( P.L. 105-305 ) amended the High-Performance Computing Act of 1991. The act had two overarching purposes. The first was to authorize research programs related to high-end computing and computation, human-centered systems, high confidence systems, and education, training, and human resources. The second was to provide for the development and coordination of a comprehensive and integrated U.S. research program to focus on (1) computer network infrastructure that would promote interoperability among advanced federal computer networks, (2) economic high-speed data access that does not impose a "geographic penalty," and (3) flexible and extensible networking technology. America COMPETES Act of 2007 Section 7024 of the America COMPETES Act of 2007 ( P.L. 110-69 ) revised the program requirements for the National High-Performance Computing Program. Among other requirements, the bill amended the original enabling legislation to Require the director of the OSTP to (1) establish the goals and priorities for federal high-performance computing research, development, networking, and other activities; (2) establish PCAs that implement such goals and identify the Grand Challenges (i.e., fundamental problems in science or engineering with broad economic and scientific impact whose solutions will require the application of high-performance computing resources and, as amended by this section, multidisciplinary teams of researchers) that the program should address; and (3) develop and maintain a research, development, and deployment roadmap covering all states and regions for the provision of high-performance computing and networking systems. Revise requirements for annual reports by requiring that such reports (1) describe PCAs, including any changes in the definition of or activities under such areas and the reasons for such changes, and describe Grand Challenges supported under the program; (2) describe the levels of federal funding and the levels proposed for each PCA; (3) describe the levels of federal funding for each agency and department participating in the program for each such area; and (4) include an analysis of the extent to which the program incorporates the recommendations of the advisory committee on high-performance computing. Eliminates the requirement for inclusion of reports on DOE activities taken to carry out the National High-Performance Computing Program. Require the advisory committee on high-performance computing to conduct periodic evaluations of the funding, management, coordination, implementation, and activities of the program and to report at least once every two fiscal years to specified congressional committees. Prohibits applying provisions for the termination, renewal, and continuation of federal advisory committees under the Federal Advisory Committee Act to such advisory committee. Instruct the NSF to support basic research related to advanced information and communications technologies that will contribute to enhancing or facilitating the availability and affordability of advanced communications services for all people of the United States. Requires the NSF director to award multiyear grants to institutions of higher education, nonprofit research institutions affiliated with such institutions, or their consortia to establish multidisciplinary Centers for Communications Research. Increases funding for the basic research activities described in this section, including support for such centers. Requires the NSF director to transmit to Congress, as part of the President's annual budget submission, reports on the amounts allocated for support of research under this section.

In the early 1990s, Congress recognized that several federal agencies had ongoing high-performance computing programs, but no central coordinating body existed to ensure long-term coordination and planning. To provide such a framework, Congress passed the High-Performance Computing and Communications Program Act of 1991 (P.L. 102-194) to enhance the effectiveness of the various programs. In conjunction with the passage of the act, the White House Office of Science and Technology Policy (OSTP) released Grand Challenges: High-Performance Computing and Communications. That document outlined a research and development (R&D) strategy for high-performance computing and a framework for a multi-agency program, the High-Performance Computing and Communications (HPCC) Program. The HPCC Program has evolved over time and is now called the Networking and Information Technology Research and Development (NITRD) Program to better reflect its expanded mission. Current concerns are the role of the federal government in supporting information technology (IT) R&D and the level of funding to allot to it. Proponents of federal support of IT R&D assert that it has produced positive outcomes for the country and played a crucial role in supporting long-term research into fundamental aspects of computing. Such fundamentals provide broad practical benefits but generally take years to realize. Additionally, the unanticipated results of research are often as important as the anticipated results. Another aspect of government-funded IT research is that it often leads to open standards, something that many perceive as beneficial, encouraging deployment and further investment. Industry, on the other hand, is more inclined to invest in proprietary products and will diverge from a common standard when there is a potential competitive or financial advantage to do so. Proponents of government support believe that the outcomes achieved through the various funding programs create a synergistic environment in which both fundamental and application-driven research are conducted, benefitting government, industry, academia, and the public. Supporters also believe that such outcomes justify government's role in funding IT R&D as well as the growing budget for the NITRD Program. Critics assert that the government, through its funding mechanisms, may be picking "winners and losers" in technological development, a role more properly residing with the private sector. For example, the size of the NITRD Program may encourage industry to follow the government's lead on research directions rather than selecting those directions itself. The President's FY2017 budget request for the NITRD Program was $4.54 billion and the FY2016 NITRD budget estimates totaled $4.49 billion. The FY2018 budget is not yet available. The NITRD budget is an aggregation of the IT R&D components of the individual budgets of NITRD participating agencies and is reported in the annual release of the Networking and Information Technology Research and Development Program Supplement to the President's Budget. The NITRD budget is not a single, centralized source of funds that is allocated to individual agencies. Rather, it is calculated by aggregating the IT R&D components of the appropriations provided by Congress to each federal agency. There has been no legislative activity related to the NITRD Program in the 115th Congress.

The federal government has no juvenile justice system of its own. Instead, starting in the 1960s, the federal government began establishing federal juvenile justice entities and grant programs in order to influence the states' juvenile justice systems. Eligibility for some of these grant programs is tied to certain mandates that the states must adhere to in order to receive federal funding. This report provides a brief overview of the juvenile justice grant programs and the overall appropriation administered by the Department of Justice's (DOJ's) Office of Juvenile Justice and Delinquency Prevention (OJJDP). The Juvenile Justice and Delinquency Prevention Act (JJDPA) was first passed by Congress in 1974 and was most recently reauthorized in 2002 by the 21 st Century Department of Justice Appropriations Authorization Act. The JJDPA's provisions are currently unauthorized, having expired in FYs 2007 and 2008, although Congress continues to provide appropriations for some of the act's activities. The JJDPA as originally enacted had three main components: it created a set of institutions within the federal government that were dedicated to coordinating and administering federal juvenile justice efforts; it established grant programs to assist the states with setting up and running their juvenile justice systems; and it promulgated core mandates that states had to adhere to in order to be eligible to receive grant funding. While the JJDPA has been amended several times over the past 30 years, it continues to feature the same three components. The JJDPA has been a primary channel through which the federal government provides juvenile justice funding to the states; nonetheless, other congressionally authorized and administratively established programs, administered by OJJDP, have contributed to the overall package of federal juvenile justice funding. The following section outlines various congressionally authorized juvenile justice grant programs, including those authorized by the JJDPA. The JJDPA authorizes OJJDP to make formula grants to states that can be used to fund the planning, establishment, operation, coordination, and evaluation of projects for the development of more effective juvenile delinquency programs and improved juvenile justice systems. Funds are allocated annually among the states on the basis of relative population of people under the age of 18, and states must adhere to certain core mandates in order to be eligible for funding. Authorization for this program expired in FY2007; however, Congress has continued to provide appropriations in each subsequent fiscal year. The Juvenile Delinquency Prevention Block Grant Program is a discretionary grant program that replaced a number of smaller grant programs in the 2002 JJDPA reauthorization. The JJDPA authorizes OJJDP to make funding available to carry out a broad range of activities in purpose areas designed to prevent juvenile delinquency. Grant funding is allocated to the eligible states based on the proportion of their population that is under the age of 18. This grant program has not received appropriations to date; rather, the annual appropriation for OJJDP has continued to follow the pre-2002 structure, and funds have been appropriated in each subsequent fiscal year for some of the grant programs that were repealed in 2002. The authorization for this program expired in FY2007. The JJDPA authorizes OJJDP to make grants to state, local, and tribal governments and private entities in order to carry out programs that will develop, test, or demonstrate promising new initiatives that may prevent, control, or reduce juvenile delinquency. Authorization for this program expired in FY2007. Further, the Challenge Grants last received appropriations in FY2010. This grant program was repealed in 2002 by the 21 st Century Department of Justice Reauthorization Act ( P.L. 107-273 ); however, it has continued to receive appropriations each subsequent fiscal year. These grants are awarded to local educational agencies (in partnership with public or private agencies) to establish and support mentoring programs. The Gang-Free Schools and Communities Grant program was repealed in 2002 by the 21 st Century Department of Justice Reauthorization Act ( P.L. 107-273 ); however, funding for gang resistance education and training has continued to receive appropriations in each subsequent fiscal year. These grants are used to fund a wide variety of prevention or accountability based gang projects. Funding has been included as a part of appropriations for the Title V Incentive Grants for Local Delinquency Prevention. The JJDPA authorizes OJJDP to make grants to states, which are then transmitted to units of local government, in order to carry out delinquency prevention programs for juveniles who have come into contact with, or are likely to come into contact with, the juvenile justice system. Authorization for this program expired in FY2008; however, Congress continues to provide appropriations. The Victims of Child Abuse Act of 1990 ( P.L. 101-647 ) authorizes OJJDP to fund technical assistance, training, and administrative reforms for state juvenile and family courts in order to improve the way state juvenile justice systems handle cases of child abuse and neglect. This program has been unauthorized since FY2005 but has continued to receive appropriations. The Juvenile Accountability Block Grant (JABG) program was originally created by the FY1998 DOJ Appropriations Act ( P.L. 105-119 ) and was appropriated each subsequent fiscal year. The JABG program was subsequently codified by the 21 st Century Department of Justice Reauthorization Act ( P.L. 107-273 ). Although the JABG program does not reside within the JJDPA, it is nevertheless administered by OJJDP. The JABG program authorizes the Attorney General to make grants to states and units of local government to strengthen their juvenile justice systems and foster accountability within their juvenile populations by holding juveniles accountable for their actions. Authorization for this program expired in FY2009, but Congress continued to provide appropriations in each subsequent fiscal year through FY2013. Figure 1 shows overall appropriations for juvenile justice programs within DOJ. This juvenile justice appropriation includes funding allocated within the purview of the JJDPA, as well as other grant programs that are administered by OJJDP but that are not within the JJDPA. Examples of these types of non-JJDPA programs include the JABG program and the Victims of Child Abuse Act grant, which have sometimes been included in different parts of the DOJ appropriation but nevertheless are tailored to juveniles and administered by OJJDP. Prior to FY2002, overall funding for juvenile justice within the DOJ appropriation gradually increased, peaking at $565 million in FY2002. From FY2002 to FY2007, however, overall juvenile justice funding fell by 38% to $348 million. The majority of this reduction came from the JABG program. Appropriations for JABG fell from a high of $250 million in FY2002 to $49 million in FY2007. In FY2008, the overall appropriation for juvenile justice programs increased by about 10% from FY2007 to $384 million. Between FY2007 and FY2010, funding for juvenile justice programs increased by almost 22% to $424 million in FY2010. During this time, funding for JJDPA programs increased by 27% from $260 million in FY2007 to $331 million in FY2010. Funding for juvenile justice programs began to decline once again beginning in FY2011, and that decline continued through FY2015. The Department of Defense and Full-Year Continuing Appropriations Act, 2011 ( P.L. 112-10 ) provided $275 million for DOJ's juvenile justice programs for FY2011. Of these funds, $199 million was for JJDPA programs. Funding for juvenile justice programs continued to decline in FY2012. The Consolidated and Further Continuing Appropriations Act, 2012 ( P.L. 112-55 ) provided $262.5 million for juvenile justice programs. Of this $262.5 million, $138 million was for JJDPA programs. Additionally, more than 25% of the juvenile justice program funding provided for FY2012 was designated for activities that had not been funded previously under the juvenile justice programs account (including funding for missing and exploited children programs, child abuse training programs for judicial personnel and practitioners, and grants and technical assistance in support of the National Forum on Youth Violence Prevention). The Consolidated and Further Continuing Appropriations Act, 2013 ( P.L. 113-6 ) provided $279.5 million for juvenile justice programs for FY2013. Of note, Section 3001 of the act provided for a series of rescissions of FY2013 budget authority. After applying these rescissions and the sequestration ordered by President Obama on March 1, 2013, DOJ reports that juvenile justice programs were funded at nearly $261.0 million for FY2013. Juvenile justice funding continued to decline in FY2014; through the Consolidated Appropriations Act, 2014 ( P.L. 113-76 ), Congress appropriated $254.5 million for juvenile justice programs. One notable change to the juvenile justice funding pattern was an elimination of JABG funding in FY2014. Funding for juvenile justice programs dropped again in FY2015; through the Consolidated and Further Continuing Appropriations Act, 2015 ( P.L. 113-235 ), Congress appropriated $251.5 million for these programs. Most recently, through the Consolidated Appropriations Act, 2016 ( P.L. 114-113 ), Congress increased juvenile justice funding and appropriated nearly $270.2 million for these programs for FY2016. Most programs saw an increase in funding levels relative to FY2015 amounts. In addition, specific funding was added to support improvements in juvenile indigent defense. For detailed juvenile justice programs account information, see Table 1 . Table 1 provides a summary of juvenile justice appropriations by program. The programs appropriated for juvenile justice have varied somewhat from year to year. For example, the 21 st Century Department of Justice Reauthorization Act of 2002 ( P.L. 107-273 ), among other things, repealed a number of pre-existing grant programs and consolidated many of their purpose areas within the Juvenile Delinquency Prevention Block Grant Program. However, this block grant has not been appropriated since its inception. Instead, the appropriators have continued to fund some of the pre-existing grant programs (chiefly, the Victims of Child Abuse, Gang-Free Schools and Communities Grant, and Juvenile Mentoring Programs grants) either as separate line-items or with funding set aside from the Title V Incentive Grants for Local Delinquency Prevention. Table 1 also shows that appropriations for specific programs can vary from year to year and that some programs are specifically appropriated in one year but may not be specifically identified in other years, such as the Community Based Violence Prevention Initiative and the National Forum on Youth Violence Prevention, which have received stand-alone appropriations some fiscal years and have been set aside from the Title V Incentive Grants program in other years. In addition, some programs receive funding from larger accounts; for example, OJJDP's Tribal Youth Program has received a set-aside appropriation from the Title V grant program every year since FY1999.

Although juvenile justice has always been administered by the states, Congress has had significant influence in the area through funding for grant programs administered by the Department of Justice's (DOJ's) Office of Juvenile Justice and Delinquency Prevention (OJJDP). The Juvenile Justice and Delinquency Prevention Act (JJDPA) of 1974, P.L. 93-415, was the first comprehensive juvenile justice legislation passed by Congress. Since 1974, the act has undergone several key amendments, including a significant reorganization enacted by P.L. 107-273 in 2002. The juvenile justice appropriation includes funding allocated within the purview of the JJDPA, as well as other grant programs that are administered by OJJDP but that are not within the JJDPA. After the restructuring of juvenile justice grant programs in 2002, their funding, which had generally been above $500 million, began to decline. For FY2010, the Consolidated Appropriations Act, 2010 (P.L. 111-117) provided $424 million for juvenile justice programs within DOJ. This was the largest amount appropriated to juvenile justice programs since FY2003. From FY2010 through FY2015, juvenile justice funding declined each subsequent fiscal year. Most recently, through the Consolidated Appropriations Act, 2016 (P.L. 114-113), Congress increased juvenile justice funding to its highest level in five years and appropriated nearly $270.2 million for these programs for FY2016.

The Office of Personnel Management (OPM) has issued guidance for federal executive branch departments and agencies on various flexibilities available to facilitate HRM for emergency situations involving severe weather, natural disaster, and other circumstances multiple times since 2001. Notably, these issuances occurred following the September 11, 2001, terrorist attacks; in the aftermath of Hurricanes Katrina and Rita, which occurred back-to-back in the Gulf Coast region of the United States in late summer 2005; and as part of fulfilling OPM's responsibilities under the President's national strategy on pandemic influenza in 2006. Most recently, OPM issued guidance in a memorandum titled, "Human Resources Flexibilities for Hurricane Harvey and its Aftermath," issued on August 27, 2017. The memorandum "remind[s] agencies of the wide range of Human Resources (HR) policies and flexibilities currently available to assist Federal employees." On September 1, 2017, OPM, in consultation with the Office of Management and Budget (OMB), established an emergency leave transfer program for federal employees who were adversely affected by Hurricane Harvey. Seven days later, on September 8, 2017, as Hurricane Irma tracked toward Florida, OPM authorized departments and agencies to hire individuals under excepted service appointments and on a temporary basis for up to one year (with an extension up to one year). The individuals "will be directly involved with the recovery and relief efforts associated with Hurricane Harvey or Hurricane Irma." Subject to guidance from the OPM Director, Federal Executive Boards (FEBs) are available to assist the agency with matters related to emergency operations, such as operations under hazardous weather conditions. The FEBs were established by a presidential memorandum issued by President John F. Kennedy in November 1961, to "provide means for closer coordination of Federal activities at the regional level." Currently, FEBs operate in 28 metropolitan areas. A goal of the FEBs is "to create effective collaboration on emergency readiness and recovery, and to educate [the] Federal workforce on issues in emergency situations." Table 1 , below, provides information on selected flexibilities related to staffing, compensation, leave transfer, and telework in Title 5 of the United States Code and Title 5 of the Code of Federal Regulations . The table refers to several HR terms, which are explained as follows: Competitive s ervice positions are civil service positions in the executive branch, except positions which are specifically excepted from the competitive service by or under statute; positions to which appointments are made by nomination for confirmation by the Senate, unless the Senate otherwise directs; and positions in the Senior Executive Service (SES). Such positions require applicants to compete against one another in open competition based on job-related criteria to obtain employment. The positions are subject to the civil service laws codified at Title 5 of the United States Code and to oversight by OPM. Employees are to be selected from among the best-qualified candidates and without discrimination. Excepted s ervice positions are civil service positions which are not in the competitive service or the SES. Qualification standards and requirements for these positions are established by the individual agencies. The Title 5 rules on appointment (except for veterans' preference), pay, and classification do not apply. SES positions are classified above grade 15 of the General Schedule or in level IV or V of the Executive Schedule, or an equivalent position, and are not filled by presidential appointment by and with the advice and consent of the Senate. Members of the SES, among other duties, direct the work of an organizational unit and exercise important policymaking, policy-determining, or other executive functions. The Reemployment Priority List is the mechanism agencies use to give reemployment consideration to their current and former competitive service employees who will be, or were, separated by reduction in force or who are fully recovered from a compensable injury after more than one year.

Federal executive branch departments and agencies have available to them various human resources management flexibilities for emergency situations involving severe weather, natural disaster, and other circumstances. At various times, the Office of Personnel Management issued guidance on these flexibilities, which supplements the basic policies governing staffing, compensation, leave sharing, and telework in Title 5 of the United States Code and Title 5 of the Code of Federal Regulations. Some examples of when issuances have occurred include following the September 11, 2001, terrorist attacks; in the aftermath of Hurricanes Katrina and Rita in 2005; in response to pandemic influenza in 2006; and in the aftermath of Hurricane Harvey in 2017.

Through the impartial and independent investigation of citizens’ complaints, federal ombudsmen help agencies be more responsive to the public, including people who believe that their concerns have not been dealt with fully or fairly through normal channels. Ombudsmen may recommend ways to resolve individual complaints or more systemic problems, and may help to informally resolve disagreements between the agency and the public. While there are no federal requirements or standards specific to the operation of federal ombudsman offices, the Administrative Conference of the United States recommended in 1990 that the President and the Congress support federal agency initiatives to create and fund an external ombudsman in agencies with significant interaction with the public. In addition, several professional organizations have published relevant standards of practice for ombudsmen. Both the recommendations of the Administrative Conference of the United States and the standards of practice adopted by various ombudsman associations incorporate the core principles of independence, impartiality (neutrality), and confidentiality. For example, the ABA’s standards define these characteristics as follows: Independence—An ombudsman must be and appear to be free from interference in the legitimate performance of duties and independent from control, limitation, or penalty by an officer of the appointing entity or a person who may be the subject of a complaint or inquiry. Impartiality—An ombudsman must conduct inquiries and investigations in an impartial manner, free from initial bias and conflicts of interest. Confidentiality—An ombudsman must not disclose and must not be required to disclose any information provided in confidence, except to address an imminent risk of serious harm. Records pertaining to a complaint, inquiry, or investigation must be confidential and not subject to disclosure outside the ombudsman’s office. Relevant professional standards contain a variety of criteria for assessing an ombudsman’s independence, but in most instances, the underlying theme is that an ombudsman should have both actual and apparent independence from persons who may be the subject of a complaint or inquiry. According to ABA guidelines, for example, a key indicator of independence is whether anyone subject to the ombudsman’s jurisdiction can (1) control or limit the ombudsman’s performance of assigned duties, (2) eliminate the office, (3) remove the ombudsman for other than cause, or (4) reduce the office’s budget or resources for retaliatory purposes. Other factors identified in the ABA guidelines on independence include a budget funded at a level sufficient to carry out the ombudsman’s responsibilities; the ability to spend funds independent of any approving authority; and the power to appoint, supervise, and remove staff. The Ombudsman Association’s standards of practice define independence as functioning independent of line management; they advocate that the ombudsman report to the highest authority in the organization. According to the ABA’s recommended standards, “the ombudsman’s structural independence is the foundation upon which the ombudsman’s impartiality is built.” One aspect of the core principle of impartiality is fairness. According to an article published by the U.S. Ombudsman Association on the essential characteristics of an ombudsman, an ombudsman should provide any agency or person being criticized an opportunity to (1) know the nature of the criticism before it is made public and (2) provide a written response that will be published in whole or in summary in the ombudsman’s final report. In addition to the core principles, some associations also stress the need for accountability and a credible review process. Accountability is generally defined in terms of the publication of periodic reports that summarize the ombudsman’s findings and activities. Having a credible review process generally entails having the authority and the means, such as access to agency officials and records, to conduct an effective investigation. The ABA recommends that an ombudsman issue and publish periodic reports summarizing the findings and activities of the office to ensure its accountability to the public. Similarly, recommendations by the Administrative Conference of the United States regarding federal ombudsmen state that they should be required to submit periodic reports summarizing their activities, recommendations, and the relevant agency’s responses. Federal agencies face legal and practical constraints in implementing some aspects of these standards because the standards were not designed primarily with federal agency ombudsmen in mind. However, ombudsmen at the federal agencies we reviewed for our 2001 report reflected aspects of the standards. We examined the ombudsman function at four federal agencies in addition to EPA and found that three of them—the Federal Deposit Insurance Corporation, the Food and Drug Administration, and the Internal Revenue Service—had an independent office of the ombudsman that reported to the highest level in the agency, thus giving the ombudsmen structural independence. In addition, the ombudsmen at these three agencies had functional independence, including the authority to hire, supervise, discipline, and terminate their staff, consistent with the authority granted to other offices within their agencies. They also had control over their budget resources. The exception was the ombudsman at the Agency for Toxic Substances and Disease Registry, who did not have a separate office with staff or a separate budget. This ombudsman reported to the Assistant Administrator of the agency instead of the agency head. In our July 2001 report, we recommended, among other things, that EPA modify its organizational structure so that the function would be located outside of the Office of Solid Waste and Emergency Response, whose activities the national ombudsman was charged with reviewing. EPA addresses this recommendation through its placement of the national ombudsman within the OIG, where the national ombudsman will report to a newly-created position of Assistant Inspector General for Congressional and Public Liaison. OIG officials also told us that locating the national ombudsman function within the OIG offers the prospect of additional resources and enhanced investigative capability. According to the officials, the national ombudsman will likely have a small permanent staff but will also be able to access OIG staff members with expertise in specific subject matters, such as hazardous waste or water pollution, on an as-needed basis. Further, OIG officials anticipate that the ombudsman will adopt many of the office’s existing recordkeeping and reporting practices, which could help address the concerns we noted in our report about accountability and fairness to the parties subject to an ombudsman investigation. Despite these aspects of EPA’s reorganization, several issues merit further consideration. First and foremost is the question of intent in establishing an ombudsman function. The term “ombudsman,” as defined within the ombudsman community, carries with it certain expectations. The role of an ombudsman typically includes program operating responsibilities, such as helping to informally resolve program-related issues and mediating disagreements between the agency and the public. Assigning these responsibilities to an office within the OIG would conflict with statutory restrictions on the Inspector General’s activities. Specifically, the Inspector General Act, as amended, prohibits an agency from transferring any function, power, or duty involving program responsibilities to its OIG. However, if EPA omits these responsibilities from the position within the OIG, then it will not have established an “ombudsman” as the function is defined within the ombudsman community. In our April 2001 report, we noted that some federal experts in dispute resolution were concerned that among the growing number of federal ombudsman offices there are some individuals or activities described as “ombuds” or “ombuds offices” that do not generally conform to the standards of practice for ombudsmen. A related issue is that ombudsmen generally serve as a key focal point for interaction between the government, or a particular government agency, and the general public. By placing the national ombudsman function within its OIG, EPA appears to be altering the relationship between the function and the individuals that make inquiries or complaints. Ombudsmen typically see their role as being responsive to the public, without being an advocate. However, EPA’s reorganization signals a subtle change in emphasis: OIG officials see the ombudsman function as a source of information regarding the types of issues that the OIG should be investigating. Similarly, rather than issue reports to complainants, OIG officials expect that the national ombudsman’s reports will be addressed to the EPA Administrator, consistent with the reporting procedures for other OIG offices. The officials told us that their procedures for the national ombudsman function, which are still being developed, could provide for sending a copy of the final report or a summary of the investigation to the original complainant along with a separate cover letter when the report is issued to the Administrator. Based on the preliminary information available from EPA, the reorganization raises other issues regarding the consistency of the agency’s ombudsman function with relevant professional standards. For example, under EPA’s reorganization, the national ombudsman will not be able to exercise independent control over budget and staff resources, even within the general constraints that are faced by federal agencies. According to OIG officials, the national ombudsman will have input into the hiring, assignment, and supervision of staff, but overall authority for staff resources and the budget allocation rests with the Assistant Inspector General for Congressional and Public Liaison. OIG officials pointed out that the issue our July 2001 report raised about control over budget and staff resources was closely linked to the ombudsman’s placement within the Office of Solid Waste and Emergency Response. The officials believe that once the national ombudsman function was relocated to the OIG, the inability to control resources became much less significant as an obstacle to operational independence. They maintain that although the ombudsman is not an independent entity within the OIG, the position is independent by virtue of the OIG’s independence. Despite the OIG’s argument, we note that the national ombudsman will also lack authority to independently select and prioritize cases that warrant investigation. According to EPA, the Inspector General has the overall responsibility for the work performed by the OIG, and no single staff member—including the ombudsman—has the authority to select and prioritize his or her own caseload independent of all other needs. Decisions on whether complaints warrant a more detailed review will be made by the Assistant Inspector General for Congressional and Public Liaison in consultation with the national ombudsman and staff. EPA officials are currently reviewing the case files obtained from the former ombudsman, in part to determine the anticipated workload and an appropriate allocation of resources. According to OIG officials, the national ombudsman will have access to other OIG resources as needed, but EPA has not yet defined how decisions will be made regarding the assignment of these resources. Under the ABA guidelines, one measure of independence is a budget funded at a level sufficient to carry out the ombudsman’s responsibilities. However, if both the ombudsman’s budget and workload are outside his or her control, then the ombudsman would be unable to assure that the resources for implementing the function are adequate. Ombudsmen at other federal agencies must live within a budget and are subject to the same spending constraints as other offices within their agencies, but they can set their own priorities and decide how their funds will be spent. EPA has also not yet fully defined the role of its regional ombudsmen or the nature of their relationship with the national ombudsman in the OIG. EPA officials told us that the relationship between the national and regional ombudsmen is a “work in progress” and that the OIG will be developing procedures for when and how interactions will occur. Depending on how EPA ultimately defines the role of its regional ombudsmen, their continued lack of independence could remain an issue. In our July 2001 report, we concluded that the other duties assigned to the regional ombudsmen—primarily line management positions within the Superfund program—hamper their independence. Among other things, we cited guidance from The Ombudsman Association, which states that an ombudsman should serve “no additional role within an organization” because holding another position would compromise the ombudsman’s neutrality. According to our discussions with officials from the Office of Solid Waste and Emergency Response and the OIG, the investigative aspects of the ombudsman function will be assigned to the OIG, but it appears that the regional ombudsmen will respond to inquiries and have a role in informally resolving issues between the agency and the public before they escalate into complaints about how EPA operates. For the time being, EPA officials expect the regional ombudsmen to retain their line management positions. Finally, including the national ombudsman function within the Office of the Inspector General raises concerns about the effect on the OIG, even if EPA defines the ombudsman’s role in a way that avoids conflict with the Inspector General Act. By having the ombudsman function as a part of the OIG, the Inspector General could no longer independently audit and investigate that function, as is the case at other federal agencies where the ombudsman function and the OIG are separate entities. As we noted in a June 2001 report on certain activities of the OIG at the Department of Housing and Urban Development, under applicable government auditing standards the OIG cannot independently and impartially audit and investigate activities it is directly involved in. A related issue concerns situations in which the national ombudsman receives an inquiry or complaint about a matter that has already been investigated by the OIG. For example, OIG reports are typically transmitted to the Administrator after a review by the Inspector General. A process that requires the Inspector General to review an ombudsman- prepared report that is critical of, or could be construed as reflecting negatively on, previous OIG work could pose a conflict for the Inspector General. OIG officials are currently working on detailed procedures for the national ombudsman function, including criteria for opening, prioritizing, and closing cases, and will have to address this issue as part of their effort. In conclusion, Mr. Chairman, we believe that several issues need to be considered in EPA’s reorganization of its ombudsman function. The first is perhaps the most fundamental—that is, the need to clarify the intent. We look forward to working with Members of the Subcommittee as you consider the best way of resolving these issues.

The Environmental Protection Agency's (EPA) hazardous waste ombudsman was first established within the Office of Solid Waste and Emergency Response as a result of the 1984 amendments to the Resource Conservation and Recovery Act. Over time, EPA expanded the national ombudsman's jurisdiction to include Superfund and other hazardous waste programs managed by the Office of Solid Waste and Emergency Response, and, by March 1996, EPA had designated ombudsmen in each of its 10 regional offices. Although the national ombudsman's activities ranged from providing information to investigating the merits of complaints, in recent years, the ombudsman played an increasingly prominent role through his investigations of citizen complaints. Pending legislation would reauthorize an office of the ombudsman within EPA. In November 2001, the EPA Administrator announced that the national ombudsman would be relocated from the Office of Solid Waste and Emergency Response to the Office of Inspector General (OIG) and would address concerns across the spectrum of EPA programs. Although there are no federal requirements or standards specific to the operation of ombudsman offices, several professional organizations have published standards of practice relevant to ombudsmen who deal with inquiries from the public. If EPA intends to have an ombudsman function that is consistent with the way the position is typically defined in the ombudsman community, placing the national ombudsman within the OIG does not achieve that objective. The national ombudsman, as the position is currently envisioned, still will not be able to exercise independent control over the budget and staff resources needed to implement the function. Prior to the reorganization, the national ombudsman could independently determine which cases to pursue; however, according to EPA, the Inspector General has the overall responsibility for the work performed by the Office, and no single staff member has the authority to select and prioritize his or her own caseload independent of all other needs. Finally, placing the ombudsman in the OIG could also affect the activities of the Inspector General.

The unexpected death of Supreme Court Justice Antonin Scalia on February 13, 2016—in the middle of the Supreme Court's October 2015 term—has prompted questions about the process for filling the vacancy and how the Court will proceed in hearing cases and issuing opinions. These questions pertain to the constitutional role of the President and Senate in filling Supreme Court vacancies, whether and when the President and the Senate must act, and how the Supreme Court may proceed in hearing cases and issuing opinions with a vacant seat. This report provides answers to frequently asked legal questions about filling Supreme Court vacancies. Additionally, other CRS products address other procedural and historical issues surrounding Supreme Court vacancies. See CRS Report R44400, The Death of Justice Scalia: Procedural Issues Arising on an Eight-Member Supreme Court , by [author name scrubbed]; CRS Report R44235, Supreme Court Appointment Process: President's Selection of a Nominee , by [author name scrubbed]; CRS Report R44236, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee , by [author name scrubbed]; CRS Report R44234, Supreme Court Appointment Process: Senate Debate and Confirmation Vote , by [author name scrubbed]; CRS Report R44083, Appointment and Confirmation of Executive Branch Leadership: An Overview , by [author name scrubbed] and [author name scrubbed]; and CRS Report RL31980, Senate Consideration of Presidential Nominations: Committee and Floor Procedure , by [author name scrubbed]. The unexpected death of Supreme Court Justice Antonin Scalia on February 13, 2016—in the middle of the Supreme Court's October 2015 term—has prompted questions about the process for filling the vacancy and how the Court may proceed in hearing cases and issuing opinions. In particular, these questions pertain to the constitutional role of the President and Senate in filling Supreme Court vacancies, when the P resident and the Senate must act, and how the Supreme Court may continue hearing cases and issuing opinions with a vacant seat. This report provides answers to frequently asked legal questions about filling Supreme Court vacancies. The Supreme Court is not required to have nine Justices. The Constitution is silent on the number. Historically, by statute Congress has set the number of Justices for the Court. Currently, that number is nine: one Chief Justice plus eight Associate Justices. But only six Justices are needed for a quorum. In the event that the Court is scheduled to hold a session but there is not a quorum, the Justices (or the clerk or deputy clerk) may announce that the Court will not meet until a quorum is restored. The nature of the President's prerogatives under the Appointments Clause is unclear. The Obama Administration has taken the position that the President has a constitutional obligation to nominate and appoint a Supreme Court Justice when there is a vacancy. The Constitution's Appointments Clause states that the President " shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court." Courts have generally construed the word "shall," in the Constitution and federal statutes, to impose a mandatory obligation. For instance, when interpreting the word "shall" in Article III of the Constitution, the Supreme Court stated that "[t]he word shall, is a sign of the future tense, and implies an imperative mandate, obligatory upon those to whom it is addressed." However, the Court has not clarified when in the future the President needs to act. Supreme Court precedent regarding vacancies in other positions subject to presidential appointment suggests that the President has significant discretion as to when a vacancy "shall" be filled. The Senate's prerogatives under the Appointments Clause are even less clear. The Appointments Clause states that the President "shall nominate, and by and with the advice and consent of the Senate , shall appoint ... judges of the Supreme Court." Unlike the duties spelled out for the President, the Appointments Clause does not provide that the Senate "shall" give its advice and consent, nor does it expound on what the Senate must do to give its advice and consent—two distinct tasks. Additionally, the Supreme Court has not fully interpreted the specific terms "advice" and "consent" as they are used in the Appointments Clause, so it is not entirely clear what actions the Senate must take, assuming any action were seen to be required. For instance, during a 1975 symposium on "Advice and Consent on Supreme Court Nominations," then-Senator James Abourezk noted that, "[w]hile the 'consent' aspect of the Senate's constitutional role is thus readily discernable, the same cannot be so easily said of the Senate's duty to give its 'advice' on a Supreme Court appointment" or "to state precisely just how that duty is to be exercised institutionally." In the past, the Senate has provided its advice and consent by various means, ranging from committee hearings to a vote on the Senate floor. Accordingly, there is disagreement in the legal community about the Senate's role in presidential appointments. Although there is no doubt that the Senate has a constitutional role in the appointments process, much of the disagreement surrounds how robust that role is, especially concerning advice. Some view the Senate's role to give advice as an active one, in which failing to consider a nominee at all would violate its constitutional obligations. For example, one former Senator has stated that "[a]mong all the responsibilities of a United States Senator, none is more important than the duty to participate in the process of selecting judges and justices to serve on the federal courts." The Obama Administration similarly contends that the Senate has a constitutional obligation to act—a position previously taken by the George W. Bush Administration. Conversely, others assert that the Senate has no constitutional obligation to act once the President nominates a new Justice, contending, for example, that the lack of "shall" in the advice-and-consent text in Article II creates only a prerequisite for the President's nominee to be confirmed by the Senate. Additionally, at least one Senator has reportedly taken the view that "[i]t's up to the Senate to decide how we do our job with regard to" advice and consent, suggesting that interpreting the Senate's role in the Appointments Clause could be seen as a political question for the legislative branch to decide. However, absent a definitive resolution by the judicial branch—which would be unlikely —settlement of occasional disputes between the President and Senate regarding their respective roles in the Supreme Court nomination process seem likely to be resolved though interbranch negotiation and accommodation. The Constitution's Recess Appointments Clause states that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next session." The Supreme Court has not addressed whether the Constitution permits the President to appoint an Article III judge (including Supreme Court Justices) using a recess appointment, and thus the issue remains unsettled. The Appointments Clause, though, which precedes the Recess Appointments Clause, authorizes the President to appoint "judges of the supreme Court." Accordingly, some courts have concluded that the Recess Appointments Clause encompasses filling Article III judicial vacancies. For example, the Eleventh Circuit opined in Evans v. Stephens that President George W. Bush lawfully appointed a judge to the U.S. Court of Appeals during an 11-day Senate recess. Despite reaching this conclusion, the court noted tension between Article III—which provides for tenure during "good behaviour" —and appointing Article III judges under the Recess Appointments Clause, for whom the appointment would expire at the end of the congressional session in which the recess appointment was made. Additionally, when the Supreme Court declined to review Evans , then-Supreme Court Justice Stevens wrote to emphasize that the denial of certiorari was not a ruling on the merits that confirms the Eleventh Circuit's decision, perhaps suggesting that he had doubts about the veracity of the ruling. Assuming, however, that the President could use the Recess Appointments Clause to appoint a new temporary Supreme Court Justice, the Senate typically must be in recess for at least 10 days for the recess appointment to be valid. Presidential nominations under the Appointments Clause expire at the end of the congressional term during which they are made. But nothing in the Constitution or in any federal law prohibits the President from re-nominating a Supreme Court nominee who was rejected or never voted on during the Senate's term. For example, President Eisenhower first nominated John Marshall Harlan II to be a Supreme Court Justice on November 9, 1954, but the Senate did not vote on the nomination. President Eisenhower re-nominated Harlan on January 10, 1955, and the newly constituted Senate confirmed the nomination. In general, cases may be reheard in one of two ways. First, parties may petition the Supreme Court for rehearing after the Court issues an adverse ruling on the merits or denies granting review for a case (sought through a petition for a writ of certiorari or extraordinary writ). For cases already decided on the merits, a majority of the Court must grant the petition for rehearing, which would be considered only at the request of one of the Justices who concurred in the Court's judgment on the merits. Second, the Court typically will order cases to be reheard if the Justices conclude that they cannot resolve the case before the Court's summer recess. For example, the Court, on its own initiative, decided to rehear three cases that had been argued after Chief Justice Rehnquist's death but before the vacancy had been filled.

The unexpected death of Supreme Court Justice Antonin Scalia on February 13, 2016—in the middle of the Supreme Court's October 2015 term—has prompted questions about the process for filling the vacancy and how the Court will proceed in hearing cases and issuing opinions. These questions pertain to the constitutional role of the President and Senate in filling Supreme Court vacancies, whether and when the President and the Senate must act, and how the Supreme Court may proceed in hearing cases and issuing opinions with a vacant seat. This report provides answers to frequently asked legal questions about filling Supreme Court vacancies. Additionally, other CRS products address other procedural and historical issues surrounding Supreme Court vacancies. See CRS Report R44400, The Death of Justice Scalia: Procedural Issues Arising on an Eight-Member Supreme Court, by [author name scrubbed]; CRS Report R44235, Supreme Court Appointment Process: President's Selection of a Nominee, by [author name scrubbed]; CRS Report R44236, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, by [author name scrubbed]; CRS Report R44234, Supreme Court Appointment Process: Senate Debate and Confirmation Vote, by [author name scrubbed]; CRS Report R44083, Appointment and Confirmation of Executive Branch Leadership: An Overview, by [author name scrubbed] and [author name scrubbed]; and CRS Report RL31980, Senate Consideration of Presidential Nominations: Committee and Floor Procedure, by [author name scrubbed].

The Reclamation Fund was established in 1902 as a special fund within the United States Treasury to aid the development of irrigation on the arid lands of western states. It originated as a revolving fund supported by the proceeds of the sale of land and water in the western United States. Over time it, has been amended to receive proceeds from a number of disparate sources, including power generation and mineral leasing. Since the mid-1990s, balances in the Reclamation Fund have increased significantly as appropriations made from the fund have not kept pace with receipts coming in to the fund. As of the end of FY2011, the fund had a balance in excess of $9.6 billion. Barring major changes by Congress in the form of increased appropriations from the fund or a redirection of its receipts, the fund's balance is expected to continue to increase. This report provides general background information on the Reclamation Fund, including a short history of the fund and trends in its deposits and appropriations. It includes a brief analysis of the issues associated with using the current surplus balance for other means. The Reclamation Act of 1902 authorized the Secretary of the Interior to construct irrigation works in western states and established the Reclamation Fund to pay for these projects. The Reclamation Fund was established as a special fund within the U.S. Treasury and was designated to receive receipts from the sale of federal land in the western United States. All moneys received from the sale and disposal of public lands in … [the western United States.] … shall be, and the same are hereby, reserved set aside, and appropriated as a special fund in the Treasury to be known as the "reclamation fund, " to be used in the examination and survey for and the construction and maintenance of irrigation works for the storage, diversion, and development of waters for the reclamation of arid and semiarid lands in the said States and Territories, and for the payment of all other expenditures provided for in this Act. The 1902 act made funding from the Reclamation Fund available for the purposes outlined in the legislation without further appropriation by Congress. This requirement was later revised in the Reclamation Extension Act (1914) to limit Reclamation's expenditures for carrying out the 1902 act to only those items for which funds are made available annually by Congress. Between 1902 and 1910, the Reclamation Service (later changed to the Bureau of Reclamation) authorized 24 projects across the West, and the balance in the fund reached as much as $68 million. However, by 1910, estimates indicated that anticipated income and repayments would not be adequate to carry on the authorized construction program, and funds were borrowed from the U.S. Treasury on multiple occasions. In the act of June 25, 1910, Congress authorized an advance of $20 million to the Reclamation Fund from the General Fund of the U.S. Treasury. Congress authorized an additional advance of $5 million from the General Fund in the act of March 3, 1931. These funds were eventually reimbursed in 1938 under the Hayden-O'Mahoney Amendment, which among other things directed the Secretary of the Treasury to transfer funding accruing to the western states from lands within naval petroleum reserves. The Reclamation Fund was not adequate to fund many of Reclamation's large investments in water infrastructure. Dating to the late 1920s, Congress directed that the General Fund (in lieu of the Reclamation Fund) finance part or all of some of Reclamation's largest construction projects. By the end of the 1930s, most major Reclamation projects under construction were financed by the General Fund of the Treasury. For instance, the Boulder Canyon Project Act of 1928 provided that construction of Hoover Dam would be financed from the General Fund of the Treasury rather than the Reclamation Fund. In the 1950s and 1960s, other large, multiple-purpose Reclamation projects were built with support from the General Fund. Among these projects were those authorized in the Colorado River Storage Project Act (P.L. 485, which authorized Glen Canyon Dam, built in 1956) and the Colorado River Basin Project Act (P.L. 90-537, which authorized the Central Arizona Project in 1968). The Reclamation Fund was originally established to serve as a "revolving" fund, but this concept proved impractical over time. When the fund was created, it was expected that project repayment and receipts from the sale of public lands (under the original statute, the fund receives 95% of these proceeds) would finance expenditures on new or ongoing projects. As previously noted, around 1910 Congress recognized that the existing Reclamation Fund revenue stream was inadequate to finance ongoing expenditures. Congress made the fund subject to annual appropriations in 1914, and directed additional receipts toward the Reclamation Fund over time, including those from revenues associated water and power uses and from sales, leases, and rentals of federal lands and resources (e.g., oil, gas, and minerals) in the 17 western states. Of these, natural resource royalties and power revenues (discussed below) have proven to be the most significant sources of revenue for the Reclamation Fund. Receipts from natural resource royalties were initiated in the Mineral Leasing Act of 1920. These receipts, which include 40% of the royalty payments received by the federal government for the production of oil, gas, coal, potassium, and other minerals on federal lands, currently generate the most revenue for the Reclamation Fund (see Figure 1 ). In recent years, these receipts have increased significantly (see the section, " Recent Trends "). Hydropower receipts were authorized to be received by the Reclamation Fund through the aforementioned Hayden-O'Mahoney Amendment, enacted on May 9, 1938. The amendment provided that revenues associated with irrigation projects' power features be deposited into the Reclamation Fund. The practical function of the change was to secure for the fund power revenues from large projects then under construction, such as Coulee Dam, Shasta Dam, and Parker Dam. An additional significant source of revenues into the Reclamation Fund is sales of water contracts, which was authorized by Congress in 1920. The primary sources of revenue for the Reclamation Fund are summarized below in Table 1 . Congress makes appropriations from the Reclamation Fund in annual appropriations acts. Appropriations from the Reclamation Fund are typically made for three separate accounts: the Bureau of Reclamation's Water and Related Resource account, the Bureau of Reclamation's Policy and Administration account, and the Western Area Power Administration's (WAPA's) Construction, Rehabilitation, and Operation and Maintenance account. Funds are made available from the Reclamation Fund only for projects authorized under the fund. Funds have been provided to WAPA since 1978, when the power marketing function of Reclamation was transferred to the Department of Energy. Appropriations are typically provided in annual Energy & Water Development Appropriation bills. After the early financial issues between the Reclamation Fund's establishment in 1902 and the supplemental funding from the General Fund in the 1930s, the fund maintained a relatively stable balance until the early 1990s. Beginning in the mid-1990s, the fund's balance began to increase significantly as revenues from power sales and natural resource royalties significantly exceeded appropriations from the fund. For every year since FY1994, receipts going into the Reclamation Fund have exceeded appropriations made from it by more than $100 million, and in some years receipts have exceeded appropriations by more than $1 billion. The exception to this trend was FY2009, when the American Recovery and Reinvestment Act (ARRA, P.L. 111-5 ) appropriated funding for Reclamation from the Reclamation Fund. As of the end of FY2012, the fund had a balance in excess of $10.8 billion. Trends in the Reclamation Fund from 1990 to 2010 are summarized below in Figure 1 . Receipts deposited into the Reclamation Fund are derived from five general categories: natural resource royalties, sales of federal land, hydropower receipts, timber sales receipts, and other proprietary receipts. Of these, natural resource royalties and hydropower revenues make up the majority of incoming receipts. From FY1990 to FY2011, an average of 87% of the Reclamation Fund's receipts came from these two sources. In recent years, even more receipts have come from these sources. From FY2006 to FY2011, an average of 91% came from the two sources (79% from natural resource royalties and 11% from hydropower receipts). A breakdown of the fund's receipts in FY2012 is provided in Figure 2 . Limited data is available on the source (by state) of the receipts going into the Reclamation Fund for various purposes. For the largest portion of revenues, mineral royalties (which accounted for approximately 79% of all receipts in the last five years), CRS estimates that from FY2006 to FY2011, an average of 93% of the receipts from onshore public mineral leasing came from five western states: Wyoming, New Mexico, Colorado, California, and Utah. Two states, Wyoming and New Mexico, accounted for about 64% of these receipts. For power revenues, Reclamation reported that the majority come from power generated on the Columbia River, the Central Valley Project, the Parker-Davis Project, and the Pick-Sloan Missouri Basin Program. On average, this power generated about 16% of Reclamation Fund revenues between 2000 and 2010. The increasing balance of the Reclamation Fund has caused some to call for directing these funds for new purposes or to supplement ongoing authorized expenditures. Such a change could take one or more forms, each of which may have an associated budget scoring impact. For instance, Congress could increase appropriations from the Reclamation Fund in annual discretionary appropriations, but such an increase would have to compete with other appropriations (including General Fund appropriations) subject to congressional 302 (b) allocations. Separately, Congress could dedicate a stream of revenue from the Reclamation Fund for a subset of projects and make it available, with or without further appropriations (i.e., discretionary funding or mandatory funding) required. Congressional PAYGO requirements may necessitate offsets in spending corresponding to some of these changes. Some, including water users and others benefitting from Reclamation projects, note that the Reclamation Fund was intended to benefit water resource projects in western states, and spending its balance on the fund's intended purposes is a logical use of the fund. However, others may view other potential uses of the fund's surplus as being more pressing in the current fiscal climate. These same interests argue that the large increases to mineral receipts were not foreseen when those disbursements were originally authorized, and may advocate for redirecting surplus balances to debt reduction or the states. A change to the Reclamation Fund enacted by Congress in 2009 provides an example of the challenges associated with dedicating Reclamation Fund balances toward a particular purpose. In Title X of the Omnibus Lands Act of 2009 ( P.L. 111-11 ), Congress redirected a portion of Reclamation Fund receipts for Indian water rights settlement projects. The bill established a separate fund (known as the Reclamation Water Settlements Fund) in the Treasury and directed the Secretary of the Treasury to transfer into the new fund up to $120 million annually between FY2020 and FY2034 that would otherwise go to the Reclamation Fund. Significantly, the law directed that this funding be made available without further appropriation. However, in this case, the appropriation was made outside of the congressional scoring window for PAYGO costs, and thus did not require an offset. More recently, a bill in the Senate in the 113 th Congress, the Authorized Rural Water Projects Completion Act ( S. 715 ), proposes to establish a new fund for rural water projects (similar to the Water Settlements Fund referenced above) that would receive, without further appropriation, approximately $80 million per year in funding that would otherwise revert to the Reclamation Fund. In contrast to the aforementioned water settlements fund, some of this funding would be redirected to projects over the next 10 years.

The Reclamation Fund was established in 1902 to fund the development of irrigation projects on arid and semiarid lands of the 17 western states. It originated as a revolving fund for construction projects and was supported by the proceeds of the sale of land and water in the western United States. Over time, it was amended to receive proceeds from a number of other sources. It is currently derived from repayments and revenues associated with federal water resources development as well as the sales, rentals, and leases (including natural resource leasing) of federal land in the western United States. Portions of the fund's balance are appropriated annually by Congress for multiple purposes, including some of the operational expenditures of the Bureau of Reclamation (Reclamation) and the Power Marketing Administrations. Through FY2012, collections deposited into the Reclamation Fund totaled more than $40 billion, while total appropriations from the fund totaled more than $30 billion. The Reclamation Fund did not finance all Reclamation investments in the western United States. As a result of limited funding availability, a number of large dams and other Reclamation investments were financed by the General Fund of the U.S. Treasury. Notwithstanding advances to the Reclamation Fund by Congress in 1910 and 1931, deposits into and appropriations out of the fund have been roughly equal over time. From the 1940s until the 1990s, the fund maintained a small, relatively stable balance. Beginning in the mid-1990s, balances in the fund began to increase significantly as receipts from mineral leasing and power sales increased, while appropriations from the fund largely remained static. At the end of FY2012, the fund had a balance of more than $10.8 billion, and it is expected to continue to grow. Receipts deposited into the Reclamation Fund are made available to Reclamation by Congress through annual discretionary appropriations bills, which are subject to congressional budgetary allocations. Some have proposed that Congress appropriate some portion of the surplus balance in the Reclamation Fund to reclamation activities in western states, including new water storage projects or the rehabilitation of existing projects. These interests argue that the Reclamation Fund was set up to benefit western states and should now be used to increase investments in these areas. As the balance of the Reclamation Fund continues to increase, Congress may reevaluate the Reclamation Fund's status, including its financing of new or ongoing activities. The Omnibus Lands Act of 2009 (P.L. 111-11) included provisions that will transfer $120 million per year from the fund from FY2020 through FY2034, without further appropriation, to a separate fund that provides for Indian Water Settlement construction projects. In the 113th Congress, a bill before the Senate (S. 715) proposes to redirect funding that would otherwise go to the Reclamation Fund for the construction of rural water projects. Major changes to the Reclamation Fund may have scoring implications in the annual budget and under congressional pay-as-you-go rules.

The JSF program is a joint program between the Air Force, Navy, and Marine Corps for developing and producing next-generation fighter aircraft to replace aging inventories. The program is currently in year 3 of an estimated 11-year development phase. The current estimated cost for this phase is about $40.5 billion. In October 2001 Lockheed Martin was awarded the air system development contract now valued at over $19 billion. Lockheed Martin subsequently awarded multi-billion-dollar subcontracts to its development teammates—Northrop Grumman and BAE Systems—for work on the center and aft fuselage, respectively. Lockheed Martin has also subcontracted for the development of major subsystems of the aircraft, such as the landing gear system. This is a departure from past Lockheed Martin aircraft programs, where the company subcontracted for components (tires, brakes, etc.) and integrated them into major assemblies and subsystems (the landing gear system). In addition to the Lockheed Martin contract, DOD has prime contracts with both Pratt & Whitney and General Electric to develop two interchangeable aircraft engines. Pratt & Whitney’s development contract is valued at over $4.8 billion. Rolls Royce plc (located in the United Kingdom) and Hamilton Sundstrand are major subcontractors to Pratt & Whitney for this effort. General Electric is currently in an early phase of development and has a contract valued at $453 million. Rolls Royce Corporation (located in Indianapolis, Ind.) is a teammate and 40 percent partner for the General Electric engine program. The General Electric/Rolls Royce team is expected to receive a follow-on development contract in fiscal year 2005 worth an estimated $2.3 billion. All the prime contracts include award fee structures that permit the JSF Program Office to establish criteria applicable to specific evaluation periods. If, during its regular monitoring of contract execution, the program office identifies the need for more emphasis in a certain area—such as providing opportunities for international suppliers or reducing aircraft weight—it can establish related criteria against which the contractor will be evaluated to determine the extent of its award fee. The Buy American Act and Preference for Domestic Specialty Metals clause implementing Berry Amendment provisions apply to the government’s purchase of manufactured end products for the JSF program. Currently, only one JSF prime contractor—Pratt & Whitney— will deliver manufactured end products to the government in this phase of the program. Under its current contract, Pratt & Whitney is to deliver 20 flight test engines, 10 sets of common engine hardware, and certain other equipment. The other engine prime contractor, General Electric, will not deliver manufactured end products under its current contract. However, its anticipated follow-on development contract will include the delivery of test engines that will be subject to Buy American Act and Specialty Metals requirements. Finally, Lockheed Martin will not deliver any manufactured end products under its development contract. The company is required to deliver plans, studies, designs, and data. Lockheed Martin will produce 22 test articles (14 flight test aircraft and 8 ground test articles) during this phase of the program, but these are not among the items to be delivered. Although the Buy American Act will apply to manufactured end products delivered to DOD during the JSF program, its restrictions will have little impact on the selection of suppliers because of DOD’s use of the law’s public interest exception. This exception allows the head of an agency to determine that applying the domestic preference restrictions would be inconsistent with the public interest. DOD has determined that countries that sign reciprocal procurement agreements with the department to promote defense cooperation and open up defense markets qualify for this exception. The eight JSF partners have all signed these agreements and are considered “qualifying countries.” Under defense acquisition regulations implementing the Buy American Act, over 50 percent of the cost of all the components in an end product must be mined, produced, or manufactured in the United States or “qualifying countries” for a product to qualify as domestic. Our analysis of JSF development subcontracts awarded by prime contractors and their teammates showed that nearly 100 percent of contract dollars awarded by the end of 2003 went to companies in the United States or qualifying countries. (See appendix II for Joint Strike Fighter System Development and Demonstration Subcontract Awards to the United States, Qualifying Countries, and Nonqualifying Countries). The Preference for Domestic Specialty Metals clause applies to articles delivered by Lockheed Martin, Pratt & Whitney, and General Electric under JSF contracts. Generally, this clause requires U.S. or qualifying country sources for any specialty metals, such as titanium, that are incorporated into articles delivered under the contract. This restriction must also be included in any subcontract awarded for the program. To meet Specialty Metals requirements, Lockheed Martin and Pratt & Whitney have awarded subcontracts to domestic suppliers for titanium; and Lockheed Martin has also extended to its subcontractors the right to buy titanium from its domestic supplier at the price negotiated for Lockheed Martin. General Electric does not exclusively use domestic titanium in its defense products. However, in 1996, the company received a class deviation from the clause that allows it to use both domestic and foreign titanium in its defense products, as long as it buys sufficient domestic quantities to meet DOD contract requirements. For instance, if 25 percent of the General Electric’s business in a given year comes from DOD contracts, then at least 25 percent of its titanium purchases must be procured from domestic sources. Similar to the Buy American Act, the Specialty Metals clause contains a provision related to “qualifying country” suppliers. It provides that the clause does not apply to specialty metals melted in a qualifying country or incorporated in products or components manufactured in a qualifying country. As a result, a qualifying country subcontractor would have greater latitude under the clause than a U.S. subcontractor. Specifically, the specialty metals incorporated into an article manufactured by a qualifying country may be from any source, while an article manufactured by a U.S. subcontractor must incorporate specialty metals from a domestic or qualifying country source. (See fig. 1.) The data we collected on JSF subcontracts show that by December 31, 2003, the prime contractors and their teammates had awarded over $14 billion in subcontracts for the development phase of the program. These subcontracts were for everything from the development of subsystems—such as radar, landing gear, and communications systems—to engine hardware, engineering services, machine tooling, and raw materials. The recipients of these contracts included suppliers in 16 foreign countries and the United States; 73.9 percent of the subcontracts by dollar value went to U.S. companies and 24.2 percent went to companies in the United Kingdom (the largest foreign financial contributor to the JSF program). (See appendix I for Joint Strike Fighter Partner Financial Contributions and Estimated Aircraft Purchases and appendix II for Joint Strike Fighter System Development and Demonstration Subcontract Awards). Finally, 2,597 of 4,488 subcontracts or purchase orders we obtained information on went to U.S. small businesses. Although these businesses received only 2.1 percent of the total dollar value of the subcontracts awarded, DOD and contractor officials have indicated that all companies in the development phase are in good position to receive production contracts, provided that cost and schedule goals are met. The gathering of these data, which most of the contractors have made available to the JSF Program Office and DCMA, has increased the breadth of knowledge available to DOD and the program office on the JSF supplier base. Neither DOD nor the JSF program office previously collected this information because, according to program officials, this information is not necessary in order to manage the program. At least one major subcontractor, on its own initiative, is now separately tracking JSF subcontracts on a monthly basis. While the JSF Program Office maintains more information on subcontractors than required by acquisition regulations, this information does not provide the program with a complete picture of the supplier base. The JSF Program Office collects and maintains data on subcontract awards for specific areas of interest—international suppliers and U.S. small businesses. The program office has used the award fee process to incentivize the prime contractors to report on both small business awards through the third tier and subcontract opportunities and awards to international suppliers. In addition, the program office has some visibility over certain subcontracts through mechanisms such as monthly supplier teleconferences, integrated product teams, informal notifications of subcontract awards, and DCMA reports on the performance of major suppliers. Finally, the JSF Program Office maintains limited information on the companies responsible for supplying critical technologies. The JSF Program Office’s information on the suppliers of key or critical technologies is based on lists that the prime contractors compile as part of the program protection strategy. These program protection requirements—not the supplier base—are the focus of DOD’s and the JSF Program Office’s approach toward critical technologies. DOD acquisition regulations require program managers to maintain lists of a program’s key technologies or capabilities to prevent the unauthorized disclosure or inadvertent transfer of leading-edge technologies and sensitive data or systems. The lists include the names of key technologies and capabilities, the reason the technology is sensitive and requires protection, and the location where the technology resides. The lists do not provide visibility into the lower-tier subcontracts that have been issued for developing or supplying these technologies. Given the limited supplier information these lists provide, the JSF Program Office is aware of two instances where a foreign company is the developer or supplier of an unclassified critical technology for the program. In both cases, a U.S. company is listed as a codeveloper of the technology. The JSF program has the potential to significantly impact the U.S. defense industrial base. Suppliers chosen during the JSF development phase will likely remain on the program through production, if they meet cost and schedule targets, and will reap the benefits of contracts potentially worth over $100 billion. Therefore, contracts awarded now will likely affect the future shape of the defense industrial base. The JSF supplier base information currently maintained by the JSF Program Office is focused on specific areas of interest and does not provide a broad view of the industrial base serving the program. In our July 2003 report, we recommended that the JSF Program Office assume a more active role in collecting information on and monitoring the prime contractors’ selection of suppliers to address potential conflicts between the international program and other program goals. DOD concurred with our recommendation, but did not specify how it plans to collect and monitor this information. Collecting this information will be an important first step for providing DOD with the knowledge base it needs to assess the impact of the program on the industrial base. We provided DOD a draft of this report for review. DOD provided only technical comments, which we incorporated as appropriate. To obtain information on the Buy American Act and the Preference for Domestic Specialty Metals clause implementing Berry Amendment provisions, we reviewed applicable laws and regulations. We interviewed DOD officials in the JSF Program Office, the Office of the Deputy Under Secretary of Defense (Industrial Policy), the Office of the Director of Defense Procurement and Acquisition Policy, and the Defense Contract Management Agency to obtain information on the applicability of the Buy American Act and other domestic source restrictions, critical foreign technologies, and DOD oversight of subcontracts. We reviewed prime contracts for the JSF program and met with JSF prime contractors, including Lockheed Martin and the engine contractors, Pratt & Whitney and General Electric, to discuss the applicability of the Buy American Act and other domestic source restrictions and to collect data on first-tier subcontract awards for the System Development and Demonstration phase. Furthermore, we collected data on subcontract awards for the JSF System Development and Demonstration phase from companies that were identified as partners or teammates by Lockheed Martin, Pratt & Whitney, and General Electric. These companies included Northrop Grumman, BAE Systems, Rolls Royce plc, Hamilton Sundstrand, and Rolls Royce Corporation. We did not independently verify subcontract data but, instead, relied on DCMA’s reviews of contractors’ reporting systems to assure data accuracy and completeness. We performed our review from August 2003 to March 2004 in accordance with generally accepted government auditing standards. As arranged with your office, unless you publicly announce its contents earlier, we plan no further distribution of this report until 30 days after the date of this report. We will then send copies of this report to interested congressional committees; the Secretary of Defense; the Secretaries of the Navy and the Air Force; the Commandant of the Marine Corps; and the Director, Office of Management and Budget. We will also make copies available to others upon request. In addition, this report will be available at no charge on the GAO Web site at http://www.gao.gov. If you or your staff have any questions regarding this report, please contact me at (202) 512-4841; or Thomas J. Denomme, Assistant Director, at 202-512-4287. Major contributors to this report were Robert L. Ackley, Shelby S. Oakley, Sylvia Schatz, and Ronald E. Schwenn.

As the Department of Defense's (DOD) most expensive aircraft program, and its largest international program, the Joint Strike Fighter (JSF) has the potential to significantly affect the worldwide defense industrial base. As currently planned, it will cost an estimated $245 billion for DOD to develop and procure about 2,400 JSF aircraft and related support equipment by 2027. In addition, the program expects international sales of 2,000 to 3,500 aircraft. If the JSF comes to dominate the market for tactical aircraft as DOD expects, companies that are not part of the program could see their tactical aircraft business decline. Although full rate production of the JSF is not projected to start until 2013, contracts awarded at this point in the program will provide the basis for future awards. GAO was asked to determine the limits on and extent of foreign involvement in the JSF supplier base. To do this, GAO (1) determined how the Buy American Act and the Preference for Domestic Specialty Metals clause apply to the JSF development phase and the extent of foreign subcontracting on the program and (2) identified the data available to the JSF Program Office to manage its supplier base, including information on suppliers of critical technologies. DOD provided technical comments on a draft of this report, which GAO incorporated as appropriate. The Buy American Act and Preference for Domestic Specialty Metals clause implementing Berry Amendment provisions apply to the government's purchase of manufactured end products for the JSF program. Currently, only one of the three JSF prime contractors is under contract to deliver manufactured end products to the government in this phase of the program. The Buy American Act will apply to manufactured end products delivered to DOD during subsequent phases, but it will have little impact on the selection of suppliers because of DOD's use of the law's public interest exception. DOD, using this exception, has determined that it would be inconsistent with the public interest to apply domestic preference restrictions to countries that have signed reciprocal procurement agreements with the department. All of the JSF partners have signed such agreements. DOD must also apply the Preference for Domestic Specialty Metals clause to articles delivered under JSF contracts. All three prime contractors have indicated that they will meet these Specialty Metals requirements. While the JSF Program Office maintains more information on subcontractors than required by acquisition regulations, this information does not provide the program with a complete picture of the supplier base. The program office collects data on subcontract awards for international suppliers and U.S. small businesses. In addition, it maintains lists of the companies responsible for developing key or critical technologies. However, the lists do not provide visibility into the lower-tier subcontracts that have been issued for developing or supplying these technologies.

Yellowstone National Park is at the center of about 20 million acres of publicly and privately owned land, overlapping three states—Idaho, Montana, and Wyoming. This area is commonly called the greater Yellowstone area or ecosystem and is home to numerous species of wildlife, including the largest concentration of free-roaming bison in the United States. Bison are considered an essential component of this ecosystem because they contribute to the biological, ecological, cultural, and aesthetic purposes of the park. However, because the bison are naturally migratory animals, they seasonally attempt to migrate out of the park in search of suitable winter range. The rate of exposure to brucellosis in Yellowstone bison is currently estimated at about 50 percent. Transmission of brucellosis from bison to cattle has been documented under experimental conditions, but not in the wild. Scientists and researchers disagree about the factors that influence the risk of wild bison transmitting brucellosis to domestic cattle and are unable to quantify the risk. Consequently, the IBMP partner agencies are working to identify risk factors that affect the likelihood of transmission, such as the persistence of the brucellosis-causing bacteria in the environment and the proximity of bison to cattle, and are attempting to limit these risk factors using various management actions. The National Park Service first proposed a program to control bison at the boundary of Yellowstone National Park in response to livestock industry concerns over the potential transmission of brucellosis to cattle in 1968. Over the next two decades, concerns continued over bison leaving the park boundaries, particularly after Montana’s livestock industry was certified brucellosis-free in 1985. In July 1990, the National Park Service, Forest Service, and Montana’s Department of Fish, Wildlife and Parks formed an interagency team to examine various alternatives for the long- term management of the Yellowstone bison herd. Later, the interagency team was expanded to include USDA’s Animal and Plant Health Inspection Service and the Montana Department of Livestock. In 1998, USDA and Interior jointly released a draft environmental impact statement (EIS) analyzing several proposed alternatives for long-term bison management and issued a final EIS in August 2000. In December 2000, the interagency team agreed upon federal and state records of decision detailing the long- term management approach for the Yellowstone bison herd, commonly referred to as the IBMP. “maintain a wild, free-ranging population of bison and address the risk of brucellosis transmission to protect the economic interest and viability of the livestock industry in Montana.” Although managing the risk of brucellosis transmission from bison to cattle is at the heart of the IBMP, the plan does not seek to eliminate brucellosis in bison. The plan instead aims to create and maintain a spatial and temporal separation between bison and cattle sufficient to minimize the risk of brucellosis transmission. In addition, the plan allows for the partner agencies to make adaptive management changes as better information becomes available through scientific research and operational experience. Under step one of the plan, bison are generally restricted to areas within or just beyond the park’s northern and western boundaries. Bison attempting to leave the park are herded back to the park. When attempts to herd the bison back to the park are repeatedly unsuccessful, the bison are captured or lethally removed. Generally, captured bison are tested for brucellosis exposure. Those that test positive are sent to slaughter, and eligible bison—calves and yearlings that test negative for brucellosis exposure—are vaccinated. Regardless of vaccination-eligibility, partner agency officials may take a variety of actions with captured bison that test negative including, temporarily holding them in the capture facility for release back into the park or removing them for research. In order to progress to step two, cattle can no longer graze in the winter on certain private lands north of Yellowstone National Park and west of the Yellowstone River. Step two, which the partner agencies expected to reach by the winter of 2002/2003, would use the same management methods on bison attempting to leave the park as in step one, with one exception—a limited number of bison, up to a maximum of 100, that test negative for brucellosis exposure would be allowed to roam in specific areas outside the park. Finally, step three would allow a limited number of untested bison, up to a maximum of 100, to roam in specific areas outside the park when certain conditions are met. These conditions include determining an adequate temporal separation period, gaining sufficient experience in managing bison in the bison management areas, and initiating an effective vaccination program using a remote delivery system for eligible bison inside the park. The partner agencies anticipated reaching this step on the northern boundary in the winter of 2005/2006 and the western boundary in the winter of 2003/2004. In 1997, as part of a larger land conservation effort in the greater Yellowstone area, the Forest Service partnered with the Rocky Mountain Elk Foundation—a nonprofit organization dedicated to ensuring the future of elk, other wildlife and their habitat—to develop a Royal Teton Ranch (RTR) land conservation project. The ranch is owned by and serves as the international headquarters for the Church Universal and Triumphant, Inc. (the Church)—a multi-faceted spiritual organization. It is adjacent to the northern boundary of Yellowstone National Park and is almost completely surrounded by Gallatin National Forest lands. The overall purpose of the conservation project was to preserve critical wildlife migration and winter range habitat for a variety of species, protect geothermal resources, and improve recreational access. The project included several acquisitions from the Church, including the purchase of land and a wildlife conservation easement, a land-for-land exchange, and other special provisions such as a long-term right of first refusal for the Rocky Mountain Elk Foundation to purchase remaining RTR lands. The project was funded using fiscal years 1998 and 1999 Land and Water Conservation Fund appropriations totaling $13 million. Implementation of the IBMP remains in step one because cattle continue to graze on RTR lands north of Yellowstone National Park and west of the Yellowstone River. All Forest Service cattle grazing allotments on its lands near the park are held vacant, and neither these lands nor those acquired from the Church are occupied by cattle. The one remaining step to achieve the condition of cattle no longer grazing in this area is for the partner agencies to acquire livestock grazing rights on the remaining private RTR lands. Until cattle no longer graze on these lands, no bison will be allowed to roam beyond the park’s northern border, and the agencies will not be able to proceed further under the IBMP. Although unsuccessful, Interior attempted to acquire livestock grazing rights on the remaining RTR lands in August 1999. The Church and Interior had signed an agreement giving Interior the option to purchase the livestock grazing rights, contingent upon a federally approved appraisal of the value of the grazing rights and fair compensation to the Church for forfeiture of this right. The appraisal was completed and submitted for federal review in November 1999. In a March 2000 letter to the Church, Interior stated that the federal process for reviewing the appraisal was incomplete and terminated the option to purchase the rights. As a result, the Church continues to exercise its right to graze cattle on the RTR lands adjacent to the north boundary of the park, and the agencies continue operating under step one of the IBMP. More recently, the Montana Department of Fish, Wildlife and Parks has re- engaged Church officials in discussions regarding a lease arrangement for Church-owned livestock grazing rights on the private RTR lands. Given the confidential and evolving nature of these negotiations, specific details about funding sources or the provisions being discussed, including the length of the lease and other potential conditions related to bison management, are not yet available. Although the agencies continue to operate under step one of the plan, they reported several accomplishments in their September 2005 Status Revew i of Adaptve Management Elements for 2000-2005. These accomplishments included updating interagency field operating procedures, vacating national forest cattle allotments within the bison management areas, and conducting initial scientific studies regarding the persistence of the brucellosis-causing bacteria in the environment. The lands and conservation easement acquired by the federal government through the RTR land conservation project sought to provide critical habitat for a variety of wildlife species including bighorn sheep, antelope, elk, mule deer, bison, grizzly bear, and Yellowstone cutthroat trout; however, the value of this acquisition for the Yellowstone bison herd is minimal because bison access to these lands remains limited. The Forest Service viewed the land conservation project as a logical extension of past wildlife habitat acquisitions in the northern Yellowstone region. While the Forest Service recognized bison as one of the migrating species that might use the habitat and noted that these acquisitions could improve the flexibility of future bison management, the project was not principally directed at addressing bison management issues. Through the RTR land conservation project, the federal government acquired from the Church a total of 5,263 acres of land and a 1,508-acre conservation easement using $13 million in Land and Water Conservation Fund appropriations. As funding became available and as detailed agreements could be reached with the Church, the following two phases were completed. In Phase I, the Forest Service used $6.5 million of its fiscal year 1999 Land and Water Conservation Fund appropriation to purchase Church-owned lands totaling 3,107 acres in June and December 1998 and February 1999. Of these lands, 2,316 acres were RTR lands, 640 acres were lands that provided strategic public access to other Gallatin National Forest lands, and 151 acres were an in-holding in the Absaroka Beartooth Wilderness area. In Phase II, BLM provided $6.3 million of its fiscal year 1998 Land and Water Conservation Fund appropriations for the purchase of an additional 2,156 acres of RTR lands and a 1,508-acre conservation easement on the Devil’s Slide area of the RTR property in August 1999. In a December 1998 letter to the Secretary of the Interior from the Chairs and Ranking Minority Members of the House and Senate Committees on Appropriations, certain conditions were placed on the use of these funds. The letter stated that “the funds for phase two should only be allocated by the agencies when the records of decision for the ‘Environmental Impact Statement for the Interagency Bison Management Plan for the State of Montana and Yellowstone National Park’ are signed and implemented.” The letter also stated that the Forest Service and Interior were to continue to consult with and gain the written approval of the governor of Montana regarding the terms of the conservation easement. Under the easement, numerous development activities, including the construction of commercial facilities and road, are prohibited. However, the Church specifically retained the right to graze domestic cattle in accordance with a grazing management plan that was to be reviewed and approved by the Church and the Forest Service. The Church’s grazing management plan was completed in December 2002, and the Forest Service determined in February 2003 that it was consistent with the terms of the conservation easement. The Church currently grazes cattle throughout the year on portions of its remaining 6,000 acres; however, as stipulated in the conservation easement and incorporated in the grazing management plan, no livestock can use any of the 1,508 acres covered by the easement between October 15 and June 1 of each calendar year, the time of year that bison would typically be migrating through the area. While purchased for wildlife habitat, geothermal resources, and recreational access purposes, the federally acquired lands and conservation easement have been of limited benefit to the Yellowstone bison. As previously noted, under the IBMP, until cattle no longer graze on private RTR lands north of the park and west of the Yellowstone River, no bison are allowed to migrate onto these private lands and the partner agencies are responsible for assuring that the bison remain within the park boundary. Mr. Chairman, this concludes my prepared statement. Because we are in the very early stages of our work, we have no conclusions to offer at this time regarding these bison management issues. We will continue our review and plan to issue a report near the end of this year. I would be pleased to answer any questions that you or other Members of the Subcommittee may have at this time. For further information on this testimony, please contact me at (202) 512- 3841 or nazzaror@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this statement. David P. Bixler, Assistant Director; Sandra Kerr; Diane Lund; and Jamie Meuwissen made key contributions to this statement. Wid feManagement: Negota ons on a LongTerm Plan or Managing Yellowstone Bson Still Ongoing. GAO/RCED-00-7. Washington, D.C.: i November 1999. Wid feManagement: Issues Concernng the Management of Bson and Elk Herds n Ye owstone Natonal Park. GAO/T-RCED-97-200. llii Washington, D.C.: July 1997. This is a work of the U.S. government and is not subject to copyright protection in the United States. It may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.

Yellowstone National Park, in northwest Wyoming, is home to a herd of about 3,600 free-roaming bison. Some of these bison routinely attempt to migrate from the park in the winter. Livestock owners and public officials in states bordering the park have concerns about the bison leaving the park because many are infected with brucellosis--a contagious bacterial disease that some fear could be transmitted to cattle, thus potentially threatening the economic health of the states' livestock industry. Other interested groups believe that the bison should be allowed to roam freely both within and outside the park. In an effort to address these concerns, five federal and Montana state agencies agreed to an Interagency Bison Management Plan (IBMP) in December 2000 that includes three main steps to "maintain a wild, free-ranging population of bison and address the risk of brucellosis transmission to protect the economic interest and viability of the livestock industry in Montana." This testimony discusses GAO's preliminary observations on the progress that has been made in implementing the IBMP and the extent to which bison have access to lands and an easement acquired for $13 million in federal funds. It is based on GAO's visit to the greater Yellowstone area, interviews with federal and state officials and other interested stakeholders, and review of related documents. More than 6 years after approving the IBMP, the five federal and state partnering agencies--the federal Department of the Interior's National Park Service and Department of Agriculture's Animal and Plant Health Inspection Service and Forest Service, and the state of Montana's Departments of Livestock and of Fish, Wildlife and Parks--remain in step one of the three-step plan primarily because cattle continue to graze on certain private lands. A key condition for the partner agencies to progress further under the plan requires that cattle no longer graze in the winter on certain private lands north of Yellowstone National Park and west of the Yellowstone River to minimize the risk of brucellosis transmission from bison to cattle; the agencies anticipated meeting this condition by the winter of 2002/2003. Until this condition is met, bison will not be allowed to roam beyond the park's northern border in this area. While a prior attempt to acquire grazing rights on these private lands was unsuccessful, Montana's Department of Fish, Wildlife and Parks is currently negotiating with the private land owner to acquire grazing rights on these lands. Yellowstone bison have limited access to the lands and conservation easement that federal agencies acquired north of the park. In 1998 and 1999, as part of a larger conservation effort to provide habitat for a variety of wildlife species, protect geothermal resources, and improve recreational access, federal agencies spent nearly $13 million to acquire 5,263 acres and a conservation easement on 1,508 acres of private lands north of the park's border--lands towards which bison frequently attempt to migrate in the winter. The conservation easement prohibits development, such as the construction of commercial facilities and roads, on the private land; cattle grazing rights were retained by the land owner. The Yellowstone bison's access to these lands will remain limited until cattle no longer graze on the easement and certain other private lands in the area.

Depending on one's point of view, new chemicals legislation in the European Union (EU) is likely to vastly improve environmental and public health protections and serve as a model for future U.S. law, or it might unnecessarily burden commercial enterprises with regulations and interfere with international trade. The subject of such conjecture is an EU law for Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) in EU commerce, which went into force June 1, 2007. This report summarizes REACH and progress in its implementation. For information about U.S. chemical law, see CRS Report RL34118, The Toxic Substances Control Act (TSCA): Implementation and New Challenges , by [author name scrubbed]. On June 1, 2007, the EU began to implement a new approach to the management of chemicals in EU commerce. The REACH directive simplifies and consolidates more than 40 former regulations in an effort to balance two EU goals: to protect public health and the environment from hazardous chemicals and to ensure the continuing competitiveness of European industry. Although certain chemicals are exempt entirely, and requirements for the other chemicals are being phased in over 11 years, the law generally will apply to nearly all chemicals in EU commerce, including imported chemicals, chemical mixtures, and certain articles that release chemicals to the environment. The REACH legislation is based on a proposal developed by the EU General Directorates for Enterprise and Environment, which was adopted by the European Commission in February 2001. The draft law was revised several times in response to public comments and amendments adopted by the European Parliament and Council of Ministers (which is comprised of the executive officers of EU member states). The final regulation is binding on all member states. REACH requires all chemical producers and importers of more than one metric ton (t) per year of any chemical to register the product by submitting a technical dossier of information about the properties of that chemical and its uses to a new agency created by the law, the European Chemicals Agency (ECHA). The dossier also must contain information about how any risks associated with use of that chemical should be managed. Downstream users of chemicals are required to manage their risks in the manner indicated by producers. Information requirements for the dossier increase as production volume increases beyond 10 t, 100 t, and 1,000 t. Since June 1, 2008, when the ECHA began to function, registration has been required for new chemicals before they enter commerce. Companies had between one year and 18 months to pre-register existing chemicals. Pre-registration ended November 30, 2008. The first registration deadline for existing chemicals was on November 30, 2010, and applied only to "substances of very high concern," or substances produced in volumes greater than 1,000 t annually or greater than 100 t annually if they are very toxic to aquatic life. A total of 4,632 substances reportedly were registered by the first deadline. The second registration deadline for existing chemicals is May 31, 2013, and applies to substances produced in the 100 to 1,000 t range annually. A total of 2,998 substances reportedly were registered by the second deadline. The final deadline is May 31, 2018, by which point all substances produced or imported in small quantities, between 1 and 100 t annually, must be registered. Member states (i.e., the nations of the EU) evaluate the dossiers based on guidelines provided by the ECHA, and may require additional data, if such data are needed to assess health and environmental effects of potential chemical exposure. Member states also may determine that action should be taken to authorize or restrict particular chemical uses. The list of substances currently under evaluation is published and updated in the REACH Community Rolling Action Plan (CoRAP). On February 29, 2012, ECHA announced that it had used the information submitted in the first round of data collection for substances produced in high volumes to identify 90 high-priority substances for risk evaluation by Member States. These will be the first chemicals subject to the evaluation stage of REACH, because ECHA suspects that use of these substances might pose a risk to human health or the environment. The evaluations will aim to clarify such risks to determine whether additional data should be collected and whether authorizations or restrictions may be necessary. On March 20, 2013, ECHA published an update to the CoRAP stating that it will evaluate 115 substances in the next two years. Fifty-three substances were transferred from the 90 high-priority substances previously identified. Producers of "substances of very high concern" may be required to apply for authorization of each particular use, demonstrate that the risks can be adequately controlled (e.g., through labeling or worker training), and justify such uses by submitting additional information to authorities. Companies will not be allowed to manufacture, import, or use a chemical after a specified date unless they have obtained an authorization for a use. In addition, producers will be required to submit an analysis of possible substitutes, a "substitution plan" if substitutes are available, or a research and development plan if no suitable substitute exists. As of October 23, 2013, 22 substances have been identified as substances of very high concern (SVHC) that are effectively banned from use in the EU unless such use is authorized under the law. In all, ECHA has identified 144 chemicals or chemical groups as SVHC candidates for authorization, with many more chemicals being evaluated for this designation, including approximately 1,350 chemicals known or likely to be carcinogens, mutagens, or chemicals toxic to reproductive systems; persistent, bioaccumulative, and toxic chemicals (PBTs); or very persistent and very bioaccumulative chemicals (vPvBs). According to the law, no use of PBTs or vPvBs is to be authorized unless there is no suitable alternative, and the socioeconomic benefits of the use outweigh the risks. If a chemical use presents unacceptable risks, that chemical use may be restricted. High-production-volume chemicals routinely will be subject to the authorization process. The authorization and restriction processes also may be applied to chemicals produced or imported in volumes less than 1 t. The U.S. government was actively engaged throughout the development of REACH. The Bush Administration expressed concerns about its trade implications for U.S.-produced chemicals. Specific concerns included increased costs of and timelines for testing chemicals exported to the EU; placement of responsibility on businesses (as opposed to governments or consumers) to generate data, assess risks, and demonstrate the safety of chemicals; possible inconsistency with international rules for trade adopted by the World Trade Organization (WTO); and the effect of the legislation on efforts to improve the coherence of chemical regulatory approaches among countries in the Organization for Economic Cooperation and Development (OECD). Some U.S. chemical industry representatives believe that REACH is "impractical." Industry has expressed objections to the proposed list of "high concern" chemicals, some of which are essential building blocks for the manufacture of other chemicals. The EU chemical industry is concerned about the cost of compliance, and what it might mean to innovation and international competitiveness. Some national governments of the EU also are concerned about the impact of REACH on their economies and employment, especially if REACH leads to companies relocating outside the EU (i.e., no longer producing or selling products in the EU). The EU has estimated that about 12% of chemicals in commerce will be withdrawn by chemical producers, because continued production under REACH will be costly and distribution not sufficiently profitable to recoup costs. In cases where no substitute is available, loss of a production source might leave some end users without the chemicals they need. Many environmental, health, and U.S. and EU labor organizations strongly supported the original proposal for REACH, but some are less enthusiastic about the final regulation, which retains its basic purpose and shape but exempts some chemicals from requirements. Nevertheless, these groups agree that REACH addressed some of what they saw as flaws in older EU laws covering chemicals. For example, REACH reduces and coordinates EU regulatory requirements for providing health and safety information about chemicals new to the EU market (as well as the number of new chemicals subject to such requirements), while at the same time increasing collection of such information for chemicals already in the EU market, thus potentially removing disincentives to innovation and encouraging substitution of less toxic for more toxic chemicals in various chemical applications. In addition, to address concerns about the slow pace of chemical risk assessment and management by the EU government, REACH shifts responsibility for assessing and managing the safety of chemicals away from the government and onto chemical manufacturers, importers, and users. Some public interest groups are urging U.S. legislators to adopt a similar legislative approach. For more discussion of the perceived flaws of U.S. law, see CRS Report RL34118, The Toxic Substances Control Act (TSCA): Implementation and New Challenges , by [author name scrubbed].

On June 1, 2007, the European Union (EU) began to implement a new law governing chemicals in EU commerce: Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH). It is intended to protect human health and the environment from hazardous chemicals while at the same time protecting the competitiveness of European industry. REACH evolved over eight years and reflects compromises reached among EU stakeholders. The final regulation reduces and coordinates EU regulatory requirements for chemicals new to the EU market and increases collection of such information for chemicals already in the EU market, thus potentially removing disincentives to innovation that existed under the former law. It also shifts responsibility for safety assessments from government to industry and encourages substitution of less toxic for more toxic chemicals in various chemical applications. Some U.S. chemical industry representatives believe that REACH is "impractical," in part due to the large number of chemicals and difficulties of identifying end uses of chemicals in many products. In contrast, some public-interest groups are urging U.S. legislators to adopt a similar legislative approach.

Since the early 1990s, the explosion in computer interconnectivity, most notably growth in the use of the Internet, has revolutionized the way organizations conduct business, making communications faster and access to data easier. However, this widespread interconnectivity has increased the risks to computer systems and, more importantly, to the critical operations and infrastructures that these systems support, such as telecommunications, power distribution, national defense, and essential government services. Malicious attacks, in particular, are a growing concern. The National Security Agency has determined that foreign governments already have or are developing computer attack capabilities, and that potential adversaries are developing a body of knowledge about U.S. systems and methods to attack them. In addition, reported incidents have increased dramatically in recent years. Accordingly, there is a growing risk that terrorists or hostile foreign states could severely damage or disrupt national defense or vital public operations through computer-based attacks on the nation’s critical infrastructures. Since 1997, in reports to the Congress, we have designated information security as a governmentwide high-risk area. Our most recent report in this regard, issued in January, noted that, while efforts to address the problem have gained momentum, federal assets and operations continued to be highly vulnerable to computer-based attacks. To develop a strategy to reduce such risks, in 1996, the President established a Commission on Critical Infrastructure Protection. In October 1997, the commission issued its report, stating that a comprehensive effort was needed, including “a system of surveillance, assessment, early warning, and response mechanisms to mitigate the potential for cyber threats.” The report said that the Federal Bureau of Investigation (FBI) had already begun to develop warning and threat analysis capabilities and urged it to continue in these efforts. In addition, the report noted that the FBI could serve as the preliminary national warning center for infrastructure attacks and provide law enforcement, intelligence, and other information needed to ensure the highest quality analysis possible. In May 1998, PDD 63 was issued in response to the commission’s report. The directive called for a range of actions intended to improve federal agency security programs, establish a partnership between the government and the private sector, and improve the nation’s ability to detect and respond to serious computer-based attacks. The directive established a National Coordinator for Security, Infrastructure Protection, and Counter-Terrorism under the Assistant to the President for National Security Affairs. Further, the directive designated lead agencies to work with private-sector entities in each of eight industry sectors and five special functions. For example, the Department of the Treasury is responsible for working with the banking and finance sector, and the Department of Energy is responsible for working with the electric power industry. PDD 63 also authorized the FBI to expand its NIPC, which had been originally established in February 1998. The directive specifically assigned the NIPC, within the FBI, responsibility for providing comprehensive analyses on threats, vulnerabilities, and attacks; issuing timely warnings on threats and attacks; facilitating and coordinating the government’s response to cyber incidents; providing law enforcement investigation and response; monitoring reconstitution of minimum required capabilities after an infrastructure attack; and promoting outreach and information sharing. PDD 63 assigns the NIPC responsibility for developing analytical capabilities to provide comprehensive information on changes in threat conditions and newly identified system vulnerabilities as well as timely warnings of potential and actual attacks. This responsibility requires obtaining and analyzing intelligence, law enforcement, and other information to identify patterns that may signal that an attack is underway or imminent. Since its establishment in 1998, the NIPC has issued a variety of analytical products, most of which have been tactical analyses pertaining to individual incidents. These analyses have included (1) situation reports related to law enforcement investigations, including denial-of-service attacks that affected numerous Internet-based entities, such as eBay and Yahoo and (2) analytical support of a counterintelligence investigation. In addition, the NIPC has issued a variety of publications, most of which were compilations of information previously reported by others with some NIPC analysis. Strategic analysis to determine the potential broader implications of individual incidents has been limited. Such analysis looks beyond one specific incident to consider a broader set of incidents or implications that may indicate a potential threat of national importance. Identifying such threats assists in proactively managing risk, including evaluating the risks associated with possible future incidents and effectively mitigating the impact of such incidents. Three factors have hindered the NIPC’s ability to develop strategic analytical capabilities. First, there is no generally accepted methodology for analyzing strategic cyber-based threats. For example, there is no standard terminology, no standard set of factors to consider, and no established thresholds for determining the sophistication of attack techniques. According to officials in the intelligence and national security community, developing such a methodology would require an intense interagency effort and dedication of resources. Second, the NIPC has sustained prolonged leadership vacancies and does not have adequate staff expertise, in part because other federal agencies had not provided the originally anticipated number of detailees. For example, as of the close of our review in February, the position of Chief of the Analysis and Warning Section, which was to be filled by the Central Intelligence Agency, had been vacant for about half of the NIPC’s 3-year existence. In addition, the NIPC had been operating with only 13 of the 24 analysts that NIPC officials estimate are needed to develop analytical capabilities. Third, the NIPC did not have industry-specific data on factors such as critical system components, known vulnerabilities, and interdependencies. Under PDD 63, such information is to be developed for each of eight industry segments by industry representatives and the designated federal lead agencies. However, at the close of our work in February, only three industry assessments had been partially completed, and none had been provided to the NIPC. To provide a warning capability, the NIPC established a Watch and Warning Unit that monitors the Internet and other media 24 hours a day to identify reports of computer-based attacks. As of February, the unit had issued 81 warnings and related products since 1998, many of which were posted on the NIPC’s Internet web site. While some warnings were issued in time to avert damage, most of the warnings, especially those related to viruses, pertained to attacks underway. The NIPC’s ability to issue warnings promptly is impeded because of (1) a lack of a comprehensive governmentwide or nationwide framework for promptly obtaining and analyzing information on imminent attacks, (2) a shortage of skilled staff, (3) the need to ensure that the NIPC does not raise undue alarm for insignificant incidents, and (4) the need to ensure that sensitive information is protected, especially when such information pertains to law enforcement investigations underway. However, I want to emphasize a more fundamental impediment. Specifically, evaluating the NIPC’s progress in developing analysis and warning capabilities is difficult because the federal government’s strategy and related plans for protecting the nation’s critical infrastructures from computer-based attacks, including the NIPC’s role, are still evolving. The entities involved in the government’s critical infrastructure protection efforts do not share a common interpretation of the NIPC’s roles and responsibilities. Further, the relationships between the NIPC, the FBI, and the National Coordinator for Security, Infrastructure Protection, and Counter-Terrorism at the National Security Council are unclear regarding who has direct authority for setting NIPC priorities and procedures and providing NIPC oversight. In addition, the NIPC’s own plans for further developing its analytical and warning capabilities are fragmented and incomplete. As a result, there are no specific priorities, milestones, or program performance measures to guide NIPC actions or provide a basis for evaluating its progress. The administration is currently reviewing the federal strategy for critical infrastructure protection that was originally outlined in PDD 63, including provisions related to developing analytical and warning capabilities that are currently assigned to the NIPC. Most recently, on May 9, the White House issued a statement saying that it was working with federal agencies and private industry to prepare a new version of a “national plan for cyberspace security and critical infrastructure protection” and reviewing how the government is organized to deal with information security issues. Our report recommends that, as the administration proceeds, the Assistant to the President for National Security Affairs, in coordination with pertinent executive agencies, establish a capability for strategic analysis of computer-based threats, including developing related methodology, acquiring staff expertise, and obtaining infrastructure data; require development of a comprehensive data collection and analysis framework and ensure that national watch and warning operations for computer-based attacks are supported by sufficient staff and resources; and clearly define the role of the NIPC in relation to other government and private-sector entities. PDD 63 directed the NIPC to provide the principal means of facilitating and coordinating the federal government’s response to computer-based incidents. In response, the NIPC has undertaken efforts in two major areas: providing coordination and technical support to FBI investigations and establishing crisis management capabilities. First, the NIPC has provided valuable coordination and technical support to FBI field offices, which have established special squads and teams and one regional task force in its field offices to address the growing number of computer crime cases. The NIPC has supported these investigative efforts by (1) coordinating investigations among FBI field offices, thereby bringing a national perspective to individual cases, (2) providing technical support in the form of analyses, expert assistance for interviews, and tools for analyzing and mitigating computer-based attacks, and (3) providing administrative support to NIPC field agents. For example, the NIPC produced over 250 written technical reports during 1999 and 2000, developed analytical tools to assist in investigating and mitigating computer-based attacks, and managed the procurement and installation of hardware and software tools for the NIPC field squads and teams. While these efforts have benefited investigative efforts, FBI and NIPC officials told us that increased computer capacity and data transmission capabilities would improve their ability to promptly analyze the extremely large amounts of data that are associated with some cases. In addition, FBI field offices are not yet providing the NIPC with the comprehensive information that NIPC officials say is needed to facilitate prompt identification and response to cyber incidents. According to field office officials, some information on unusual or suspicious computer-based activity has not been reported because it did not merit opening a case and was deemed to be insignificant. The NIPC has established new performance measures related to reporting to address this problem. Second, the NIPC has developed crisis management capabilities to support a multiagency response to the most serious incidents from the FBI’s Washington, D.C., Strategic Information Operations Center. Since 1998, seven crisis action teams have been activated to address potentially serious incidents and events, such as the Melissa virus in 1999 and the days surrounding the transition to the year 2000, and related procedures have been formalized. In addition, the NIPC has coordinated development of an emergency law enforcement plan to guide the response of federal, state, and local entities. To help ensure an adequate response to the growing number of computer crimes, we are recommending that the Attorney General, the FBI Director, and the NIPC Director take steps to (1) ensure that the NIPC has access to needed computer and communications resources and (2) monitor implementation of new performance measures to ensure that field offices fully report information on potential computer crimes to the NIPC. Information sharing and coordination among private-sector and government organizations are essential to thoroughly understanding cyber threats and quickly identifying and mitigating attacks. However, as we testified in July 2000,establishing the trusted relationships and information-sharing protocols necessary to support such coordination can be difficult. NIPC efforts in this area have met with mixed success. For example, the InfraGard Program, which provides the FBI and the NIPC with a means of securely sharing information with individual companies, has gained participants. In January 2001, NIPC officials announced that 518 organizations had enrolled in the program, which NIPC officials view as an important element in building trust relationships with the private sector. However, of the four information sharing and analysis centers that had been established as focal points for infrastructure sectors, a two-way, information-sharing partnership with the NIPC had developed with only one—the electric power industry. The NIPC’s dealings with two of the other three centers primarily consisted of providing information to the centers without receiving any in return, and no procedures had been developed for more interactive information sharing. The NIPC’s information-sharing relationship with the fourth center was not covered by our review because the center was not established until mid-January 2001, shortly before the close of our work. Similarly, the NIPC and the FBI had made only limited progress in developing a database of the most important components of the nation’s critical infrastructures—an effort referred to as the Key Asset Initiative. While FBI field offices had identified over 5,000 key assets, the entities that own or control the assets generally had not been involved in identifying them. As a result, the key assets recorded may not be the ones that infrastructure owners consider to be the most important. Further, the Key Asset Initiative was not being coordinated with other similar federal efforts at the Departments of Defense and Commerce. In addition, the NIPC and other government entities had not developed fully productive information-sharing and cooperative relationships. For example, federal agencies have not routinely reported incident information to the NIPC, at least in part because guidance provided by the federal Chief Information Officers Council, which is chaired by the Office of Management and Budget, directs agencies to report such information to the General Services Administration’s Federal Computer Incident Response Capability. Further, NIPC and Defense officials agreed that their information-sharing procedures need improvement, noting that protocols for reciprocal exchanges of information had not been established. In addition, the expertise of the U.S. Secret Service regarding computer crime had not been integrated into NIPC efforts. The NIPC has been more successful in providing training on investigating computer crime to government entities, which is an effort that it considers an important component of its outreach efforts. From 1998 through 2000, the NIPC trained about 300 individuals from federal, state, local, and international entities other than the FBI. In addition, the NIPC has advised five foreign governments that are establishing centers similar to the NIPC.

To better protect the nation's critical computer-dependent infrastructures from computer-based attacks and disruption, the President issued a directive in 1998 that established the National Infrastructure Protection Center as a national focal point for gathering information on threats and facilitating the federal government's response to computer-based incidents. This testimony discusses the center's progress in (1) developing national capabilities for analyzing cyber threat and vulnerability data and issuing warnings, (2) enhancing its capabilities for responding to cyber attacks, and (3) developing outreach and information-sharing initiatives with government and private-sector entities. GAO found that although the center has taken some steps to develop analysis and warning capabilities, the strategic capabilities described in the presidential directive have not been achieved. By coordinating investigations and providing technical assistance the center has provided important support that has improved the Federal Bureau of Investigations' ability to investigate computer crimes. The center has also developed crisis management procedures and drafted an emergency law enforcement sector plan, which is now being reviewed by sector members. The center's information-sharing relationships are still evolving and will probably have limited effectiveness until reporting procedures and thresholds are defined and trust relationships are established. This testimony summarized an April 2001 report (GAO-01-323).

The House of Representatives has several different parliamentary procedures through which it can bring legislation to the chamber floor. Which will be used in a given situation depends on many factors, including the type of measure being considered, its cost, the amount of political or policy controversy surrounding it, and the degree to which Members want to debate it and propose amendments. According to the Legislative Information System of the U.S. Congress (LIS), in the 112 th Congress (2011-2012), 888 pieces of legislation received House floor action. This report provides a statistical snapshot of the forms, origins, and party sponsorship of these measures and of the parliamentary procedures used to bring them to the chamber floor during their initial consideration. Legislation is introduced in the House or Senate in one of four forms: the bill (H.R. / S.), the joint resolution (H.J.Res. / S.J.Res.), the concurrent resolution (H.Con.Res. / S.Con.Res.), and the simple resolution (H.Res. / S.Res.). Generally speaking, bills and joint resolutions can become law, but simple and concurrent resolutions cannot; they are used instead for internal organizational or procedural matters, or to express the sentiment of one or both chambers. In the 112 th Congress, 888 pieces of legislation received floor action in the House of Representatives. Of these, 602 were bills or joint resolutions and 286 were simple or concurrent resolutions, a breakdown between lawmaking and non-lawmaking legislative forms of approximately 68% to 32%, respectively. Of the 888 measures receiving House floor action in the 112 th Congress, 783 originated in the House and 105 originated in the Senate. It is generally accepted that the House considers more legislation sponsored by majority party Members than measures introduced by minority party Members. This was born out in practice in the 112 th Congress. As is reflected in Table 1 , 74% of all measures receiving initial House floor action in the last Congress were sponsored by Members of the Republican Party, which had a majority of seats in the House. When only lawmaking forms of legislation are considered, 72% of measures receiving House floor action in the 112 th Congress were sponsored by Republicans, 27% by Democrats, and .004% by political independents. The ratio of majority to minority party sponsorship of measures receiving initial House floor action in the 112 th Congress varied widely based on the parliamentary procedure used to raise the legislation on the House floor. As is noted in Table 2 , 67% of the measures considered under the Suspension of the Rules procedure were sponsored by Republicans, 32% by Democrats, and less than 1% by political independents. That measures introduced by Members of both parties were considered under Suspension is unsurprising in that (as is discussed below) Suspension of the Rules is the parliamentary procedure which the House generally uses to process non-controversial measures for which there is wide bipartisan support. In addition, passage of a measure under the Suspension of the Rules procedure, in practice, usually requires the affirmative votes of at least some minority party Members. The ratio of party sponsorship on measures initially brought to the floor under the terms of a special rule reported by the House Committee on Rules and adopted by the House was far wider. Of the 137 measures the Congressional Research Service (CRS) identified as being initially brought to the floor under the terms of a special rule in the 112 th Congress, 134 were sponsored by majority party Members. The breakdown in party sponsorship on measures initially raised on the House floor by unanimous consent was uneven, with majority party Members sponsoring slightly over half of the measures brought up in this manner. The following section documents the parliamentary mechanisms that were used by the House to bring legislation to the floor for initial consideration during the 112 th Congress. In doing so, it does not make distinctions about the privileged status such business technically enjoys under House rules. Most appropriations measures, for example, are considered "privileged business" under clause 5 of House Rule XIII (as detailed in the section on " Privileged Business " below). As such, they do not need a special rule from the Rules Committee to be adopted for them to have floor access. In actual practice, however, in the 112 th Congress, the House universally provided for the consideration of these measures by means of a special rule, which, in general, could also provide for debate to be structured, amendments to be regulated, and points of order against the bills to be waived. Thus, appropriations measures considered in the 112 th Congress are counted in this analysis as being raised by special rule, notwithstanding their status as "privileged business." In recent Congresses, most legislation has been brought up on the House floor by Suspension of the Rules, a parliamentary device authorized by clause 1 of House Rule XV, which waives the chamber's standing rules to enable the House to act quickly on legislation that enjoys widespread, even if not necessarily unanimous, support. The main features of the Suspension of the Rules procedure include (1) a 40-minute limit on debate, (2) a prohibition against floor amendments and points of order, and (3) a two-thirds vote of Members present and voting for passage. The suspension procedure is in order in the House on the calendar days of Monday, Tuesday, and Wednesday, during the final six days of a congressional session, and at other times by unanimous consent or special order. In the 112 th Congress (2011-2012), the House Republican leadership announced additional policies related to their use of the Suspension of the Rules procedure which restrict the use of the procedure for certain "honorific" legislation, generally require measures considered under Suspension to have been available for three days prior to their consideration, and require the sponsor of the measure to be on the floor at the time of a measure's consideration. These policies continue in force in the 113 th Congress (2013-2014). In the 112 th Congress, 473 measures, representing 53% of all legislation receiving House floor action, were initially brought up using the Suspension of the Rules procedure. This includes 435 bills or joint resolutions and 38 simple or concurrent resolutions. When only lawmaking forms of legislation are counted, 72% of bills and joint resolutions receiving floor action in the 112 th Congress came up by Suspension of the Rules. Eighty-five percent of measures brought up by Suspension of the Rules originated in the House. The remaining 15% were Senate measures. House rules and precedents place certain types of legislation in a special "privileged" category, which gives measures of this kind the ability to be called up for consideration when the House is not considering another matter. Bills and resolutions falling into this category that saw floor action in the 112 th Congress include the following: Order of Business Resolutions: Procedural resolutions reported by the House Committee on Rules affecting the "rules, joint rules, and the order of business of the House" are, themselves, privileged for consideration under clause 5 of House Rule XIII. Order of business resolutions are commonly known as "special rules," and are discussed below in more detail. Committee Assignment Resolutions: Under clause 5 of House Rule X and the precedents of the House, a resolution assigning Members to standing committees is privileged if offered by direction of the party caucus or conference involved. Correcting Enrollments: Under clause 5 of House Rule XIII, resolutions reported by the Committee on House Administration correcting errors in the enrollment of a bill are privileged. Providing for Adjournment: Under Article I, Section 5, clause 4, of the Constitution, neither house can adjourn for more than three days without the consent of the other. Concurrent resolutions providing for such an adjournment of one or both chambers are called up as privileged. Questions of the Privileges of the House: Under clause 2 of House Rule IX, resolutions raising a question of the privileges of the House, affecting "the rights of the House collectively, its safety, dignity, and the integrity of its proceedings," are privileged under specific parliamentary circumstances described in the rule. Such resolutions would include the constitutional right of the House to originate revenue measures. Bereavement Resolutions: Under House precedents, resolutions expressing the condolences of the House of Representatives over the death of a Representative or of a President or former President have been treated as privileged. Measures Related to House Organization: Certain organizational business of the House, such as resolutions traditionally adopted at the beginning of a session notifying the President that the House has assembled, electing House officers, as well as concurrent resolutions providing for a joint session of Congress, have been treated as privileged business. In the 112 th Congress, 207 measures, representing 23% of the measures receiving floor action, came before the House on their initial consideration by virtue of their status as "privileged business." All but three of these 207 measures were non-lawmaking forms of legislation, that is, simple or concurrent resolutions. Of the three bills or joint resolutions receiving action, two were joint disapproval resolutions privileged by statute, and one was a Senate bill formally rejected by the House as a question of the privileges of the House. The most common type of measure brought up in the House as "privileged business" during the 112 th Congress was special orders of business (special rules) reported by the Rules Committee, followed by resolutions assigning Representatives to committee. A special rule is a simple resolution that regulates the House's consideration of legislation identified in the resolution. Such resolutions, as noted above, are sometimes called "order of business resolutions" or "special orders." Special rules enable the House to consider a specified measure and establish the terms for its consideration. For example, how long the legislation will be debated, what, if any amendments may be offered to it, and whether points of order against the measure or any amendments to it are waived. Under clause 1(m) of House Rule X, the Committee on Rules has jurisdiction over the "order of business" of the House, and it reports such procedural resolutions to the chamber for consideration. In current practice, although a relatively small percentage of legislation comes before the House via special rule, most measures that might be characterized as significant, complicated, or controversial are brought up in this way. In the 112 th Congress, 137 measures, or 15% of all legislation receiving House floor action, were initially brought before the chamber under the terms of a special rule reported by the Rules Committee and agreed to by the House. Of these, 124 (91%) were bills or joint resolutions and 13 (9%) were simple or concurrent resolutions. When only lawmaking forms of legislation are counted, 21% of bills and joint resolutions receiving floor action in the 112 th Congress came up by Special Rule. Ninety-nine percent of the measures considered under a special rule during the 112 th Congress originated in the House, 1% being Senate legislation. As is noted above, all but three measures brought before the House using this parliamentary mechanism was sponsored by a majority party Member. In current practice, legislation is sometimes brought before the House of Representatives for consideration by the unanimous consent of its Members. Long-standing policies announced by the Speaker regulate unanimous consent requests for this purpose. Among other things, the Speaker will recognize a Member to propound a unanimous consent request to call up an unreported bill or resolution only if that request has been cleared in advance with both party floor leaders and with the bipartisan leadership of the committee of jurisdiction. In the 112 th Congress, 64 measures, or 7% of all legislation identified by LIS as receiving House floor action, were initially considered by unanimous consent. Of these, 33 (52%) were bills or joint resolutions and 31 (48%) were simple or concurrent resolutions. When only lawmaking forms of legislation are counted, 5% of bills and joint resolutions receiving floor action in the 112 th Congress came up by unanimous consent. Of the measures initially considered by unanimous consent during the 112 th Congress, 64% originated in the House. Clause 5 of House Rule XV establishes special parliamentary procedures to be used for the consideration of private legislation. Unlike public legislation, which applies to public matters and deals with individuals only by classes, the provisions of private bills apply to "one or several specified persons, corporations, [or] institutions." When reported from House committee, private bills are placed on a special Private Calendar established by House Rule XIII. The consideration of Private Calendar measures is in order on the first and (if the Speaker of the House so chooses) third Tuesday of a month. On those days, the Private Calendar is "called" and each measure on it is automatically brought before the House in order. Private bills are considered under a set of procedures known as the "House as in Committee of the Whole," which is a hybrid of the procedures used in the full House and those used in the Committee of the Whole. Under these, private bills may be debated and amended under the five-minute rule, although in practice, they are almost always passed without debate or record vote. In the 112 th Congress, seven measures were brought to the floor via the call of the Private Calendar. The House of Representatives has established special parliamentary procedures that might be used to bring legislation to the chamber floor dealing with the business of the District of Columbia, a discharge process to force consideration of measures triggered by a petition signed by a numerical majority of the House, and a procedure known as the Calendar Wednesday procedure. These procedures are rarely used, and no legislation was brought before the House in the 112 th Congress by any of these three parliamentary mechanisms.

House of Representatives has several different parliamentary procedures through which it can bring legislation to the chamber floor. Which of these will be used in a given situation depends on many factors, including the type of measure being considered, its cost, the amount of political or policy controversy surrounding it, and the degree to which Members want to debate it and propose amendments. This report provides a snapshot of the forms and origins of measures that, according to the Legislative Information System of the U.S. Congress (LIS), received action on the House floor in the 112th Congress (2011-2012) and the parliamentary procedures used to bring them up for initial House consideration. In the 112th Congress, 888 pieces of legislation received floor action in the House of Representatives. Of these, 602 were bills or joint resolutions and 286 were simple or concurrent resolutions, a breakdown between lawmaking and non-lawmaking legislative forms of approximately 68% to 32%. Of these 888 measures, 783 originated in the House and 105 originated in the Senate. During the same period, 53% of all measures receiving initial House floor action came before the chamber under the Suspension of the Rules procedure; 23% came to the floor as business "privileged" under House rules and precedents; 15% were raised by a special rule reported by the Committee on Rules and adopted by the House; and 7% came up by the unanimous consent of Members. Seven measures, representing approximately 1% of legislation receiving House floor action in the 112th Congress, were processed under the procedures associated with the call of the Private Calendar. When only lawmaking forms of legislation (bills and joint resolutions) are counted, 72% of such measures receiving initial House floor action in the 112th Congresses came before the chamber under the Suspension of the Rules procedure; 21% were raised by a special rule reported by the Committee on Rules and adopted by the House; and 5% came up by the unanimous consent of Members. Around 1% of lawmaking forms of legislation received House floor action via the call of the Private Calendar and an even smaller fraction of lawmaking measures were "privileged" under House rules. The party sponsorship of legislation receiving initial floor action in the 112th Congress varied based on the procedure used to raise the legislation on the chamber floor. Sixty-seven percent of the measures considered under the Suspension of the Rules procedure were sponsored by majority party Members. All but three of the 137 measures brought before the House under the terms of a special rule reported by the House Committee on Rules and adopted by the House were sponsored by majority party Members.

GPRA is intended to shift the focus of government decisionmaking, management, and accountability from activities and processes to the results and outcomes achieved by federal programs. New and valuable information on the plans, goals, and strategies of federal agencies has been provided since federal agencies began implementing GPRA. Under GPRA, annual performance plans are to clearly inform the Congress and the public of (1) the annual performance goals for agencies’ major programs and activities, (2) the measures that will be used to gauge performance, (3) the strategies and resources required to achieve the performance goals, and (4) the procedures that will be used to verify and validate performance information. These annual plans, issued soon after transmittal of the President’s budget, provide a direct linkage between an agency’s longer-term goals and mission and day-to-day activities. Annual performance reports are to subsequently report on the degree to which performance goals were met. The issuance of the agencies’ performance reports, due this year by March 31, represents a new and potentially more substantive phase in the implementation of GPRA—the opportunity to assess federal agencies’ actual performance for the prior fiscal year and to consider what steps are needed to improve performance and reduce costs in the future. NSF’s mission is to promote the progress of science; to advance the national health, prosperity, and welfare; and to secure the national defense. NSF carries out its mission primarily by making merit-based grants and cooperative agreements to individual researchers and groups in partnership with colleges, universities, and other public and private institutions. For fiscal year 2001, NSF has a budget of $4.4 billion and a staff of about 1,200 government employees to accomplish its mission. Implementing GPRA has been a challenge for NSF, whose mission involves funding research activities, because the substance and timing of research outcomes are unpredictable and research results can be difficult to report quantitatively. With OMB’s approval, NSF uses an alternative format—a qualitative scale for the assessment of outcomes—for which it relies on independent committees of scientific experts. These committees determine the level of NSF’s success in achieving its goals. NSF uses quantitative goals for its management and investment process goals. This section discusses our analysis of NSF’s performance in achieving the selected key outcomes, as well as the strategies it has in place— particularly strategic human capital management and information technology strategies—for achieving these outcomes. In discussing these outcomes, we have also provided information drawn from our prior work on the extent to which NSF has provided assurance that the performance information it is reporting is accurate and credible. NSF, in its fiscal year 2000 performance report, states that it met its discoveries outcome and cites numerous examples of its achievements in such scientific fields as mapping the Arctic Ocean floor and extra-solar planetary discovery. NSF judged its performance as successful on the basis of assessments by independent committees of scientific experts. In compiling committee members’ scores and aggregating their comments, NSF took into account only those reports with substantive comments and ratings that were clearly justified. NSF officials told us that, for the scientific discoveries outcome goal, all of the committees judged NSF as successful in achieving it and justified their assessments. However, the performance report did not provide information on the specific numbers of reports it included and excluded in reaching its judgments for this outcome or any of the other outcomes. Furthermore, NSF discussed the independent scientific committees’ results for only one of the scientific discoveries five areas of emphasis—namely, the balance of innovative, risky, and interdisciplinary research area. Instead of providing a more complete analysis of the scientific committees’ assessments, NSF contracted with an external third party—PricewaterhouseCoopers—to make an independent assessment of the performance results. PricewaterhouseCoopers concluded that NSF’s fiscal year 2000 results were valid and verifiable. NSF’s fiscal year 2002 performance plan included a new section on the means and strategies for success related to this outcome that includes strategies that generally are clear and reasonable. To implement its outcome goal, NSF has both (1) process strategies, such as supporting the most promising ideas through merit-based grants and cooperative agreements, and (2) program strategies, such as supporting programmatic themes identified as areas of emphasis. However, NSF’s plan generally does not address key components of strategic human capital management, although its “people” and “management” outcome goals include such human capital initiatives as workforce diversity, an NSF Academy for workforce training, and a survey on the work environment. NSF is in the process of developing a 5-year strategic plan on its workforce needs that must be submitted to OMB by July 20, 2001. This strategic plan will guide NSF’s future effort in this area. NSF reported that it made substantial progress, achieving most of its performance goals related to the award and administration of research grants. While not listed as an outcome goal, the administration of grants includes many of NSF’s management and investment process goals. For example, NSF exceeded by 21 percent one of its management performance goals—to receive at least 60 percent of full grant proposal submissions electronically through a new computer system called FastLane. NSF also exceeded by 5 percent another management goal that at least 90 percent of its funds will be allocated to projects reviewed by appropriate peers external to NSF and selected through a merit-based competitive process. NSF continued to miss one of its investment process goals—to process 70 percent of proposals within 6 months of receipt—dropping from 58 percent to 54 percent in fiscal year 2000. As part of its review of NSF, PricewaterhouseCoopers concluded that NSF’s fiscal year 2000 processes were valid and verifiable and relied on sound business processes, system and application controls, and manual checks of system queries to confirm the accuracy of reported data. NSF’s fiscal year 2002 performance plan generally includes strategies for achieving NSF’s performance goals that appear to be clear and reasonable. However, in some cases, the strategies are vague, and how NSF will use them to achieve its performance goals is unclear. For example, one of NSF’s three strategies for identifying best management practices for its large infrastructure projects is to ensure input from members of the external community who build, operate, and utilize research facilities. Furthermore, while NSF has strategies for the process of funding awards, it does not generally address the oversight needs to ensure that funding recipients meet the awards’ requirements. NSF’s 5-year workforce strategic plan is addressing concerns regarding the management of a growing portfolio of program activities with relatively flat personnel levels—a key issue for developing strategic human capital management strategies. For the selected key outcomes, this section describes major improvements or remaining weaknesses in NSF’s (1) fiscal year 2000 performance report in comparison with its fiscal year 1999 report and (2) fiscal year 2002 performance plan in comparison with its fiscal year 2001 plan. It also discusses the degree to which the agency’s fiscal year 2000 report and fiscal year 2002 plan address concerns and recommendations by NSF’s Inspector General. NSF improved its fiscal year 2000 performance report, making major changes to address the weaknesses we reported in the prior year’s performance report. Our prior year’s review noted that NSF did not discuss either its reasons for falling short of a performance goal or its strategies for attaining the goal in the future. NSF’s 2000 report corrected this weakness. For example, regarding the technology-related goal to submit, review, and process proposals electronically, the report states that the reason for not achieving the goal was due to the technological, financial, and legal issues related to electronic signatures. The strategy for addressing the technological issue was to demonstrate the paperless review capability by conducting 10 pilot paperless projects in 2001 that manage the review process in an electronic environment. We also questioned the quality of the information in the 1999 performance report, noting that it provided virtually no assurance that the information was credible. As mentioned earlier, NSF contracted with PricewaterhouseCoopers to review aspects of its GPRA data collection efforts and its performance assessment results. PricewaterhouseCoopers found no basis for questioning the integrity of the results. NSF can improve its future reports in several ways. The results of the independent committees’ reviews would benefit from more detailed information, such as including all of the areas of emphasis and the results. In addition, last year, we noted that the 1999 performance report did not describe NSF’s financial role in the examples of scientific successes presented. Such information, we said, would help to judge the extent of NSF’s role in achieving these successes. NSF officials maintain that determining NSF’s financial role in these successes would be extremely difficult and would take a considerable effort. NSF officials told us that the successes they identified for this outcome were primarily due to NSF awards. That statement would have been useful in assessing the 2000 performance report. NSF made improvements to its fiscal year 2002 performance plan. For example, last year, we reported that the performance plan contained little useful information about NSF’s intended strategy to achieve its goals, including a discussion of the problems. The 2002 plan includes a new section on the means and strategies for success. For example, for its new goal of award oversight and management, NSF will ensure that the internal committee reviewing the oversight activities for large infrastructure projects has broad disciplinary expertise and experience in managing facilities. As previously mentioned, NSF is also addressing data quality concerns, providing confidence that future performance information will be credible. Furthermore, NSF revised its outcome goal such that it does not have to succeed in demonstrating significant achievement in discoveries that advance the frontiers of science, engineering, or technology. Rather, discoveries is now one of six performance indicators for which NSF will consider itself successful when a majority is achieved. Last year, we also reported that the strategies for achieving the goals were not clearly discussed. NSF includes a new section on the means and strategies for success under each goal. NSF can improve its future performance plans by addressing its resource needs. Last year, we noted that the plan did not clearly discuss the resources for achieving the goals or the specific links between the resources and the areas of emphasis. The 2002 performance plan still does not do so. As discussed earlier, NSF’s 5-year workforce strategic plan is expected to address human capital issues, providing a basis for addressing this issue in next year’s performance plan. GAO has identified two governmentwide high-risk areas: strategic human capital management and information security. Regarding strategic human capital management, we found that NSF’s performance plan generally did not have goals and measures related to strategic human capital management, and NSF’s performance report did not explain its progress in resolving strategic human capital management challenges. However, as mentioned earlier, NSF is developing a 5-year workforce strategic plan. With respect to information security, we found that NSF’s performance plan had a goal and measures related to information security. While NSF’s performance report did not explain its progress in resolving information security challenges, it did indicate that NSF has internal management controls that continually monitor data security. We provided NSF and the Office of the Inspector General with a draft of this report for their review and comment. We met with NSF officials, including the Chief Information Officer and the Inspector General. The NSF officials generally agreed with the report. However, they noted that the fiscal year 2000 performance report did not respond to some of the Inspector General’s management challenges primarily because these challenges were identified in a November 30, 2000, letter. The Inspector General agreed that some of these management challenges were new. The NSF officials recognize that certain challenges not in the current plan and report are important, and they noted that these challenges are being addressed through internal management controls and processes. They added that NSF will continue to consider these challenges for incorporation in future performance plans. The NSF officials also provided technical clarifications, which we incorporated as appropriate. Our evaluation was generally based on the requirements of GPRA, the Reports Consolidation Act of 2000, guidance to agencies from OMB for developing performance plans and reports (OMB Circular A-11, Part 2), previous reports and evaluations by us and others, our knowledge of NSF’s operations and programs, GAO’s identification of best practices concerning performance planning and reporting, and our observations on NSF’s other GPRA-related efforts. We also discussed our review with NSF officials in the Office of Information and Resource Management; the Office of Budget, Finance, and Award Management; the Office of Integrative Activities; and the Office of Inspector General. The agency outcomes that were used as the basis for our review were identified by the Ranking Minority Member of the Senate Committee on Governmental Affairs as important mission areas for NSF and do not reflect the outcomes for all of NSF’s programs or activities. The major management challenges confronting NSF, including the governmentwide high-risk areas of strategic human capital management and information security, were identified by (1) our January 2001 high-risk update and (2) NSF’s Office of Inspector General in November 2000. We did not independently verify the information contained in the performance report and plan, although we did draw from other GAO work in assessing the validity, reliability, and timeliness of NSF’s performance data. We conducted our review from April through June 2001 in accordance with generally accepted government auditing standards. As arranged with your office, unless you publicly announce its contents earlier, we plan no further distribution of this report until 30 days after the date of this letter. At that time, we will send copies to appropriate congressional committees; the Director, NSF; and the Director of OMB. Copies will also be made available to others on request. If you or your staff have any questions, please call me at (202) 512-3841. Key contributors to this report were Richard Cheston, Alan Stapleton, Elizabeth Johnston, and Sandy Joseph. The following table discusses the major management challenges confronting the National Science Foundation (NSF), including the governmentwide high-risk areas of strategic human capital management and information security, identified by our January 2001 high-risk update and NSF’s Office of Inspector General (IG) in November 2000. The first column of the table lists the management challenges identified by our office and NSF’s IG. The second column discusses NSF’s progress, as discussed in its fiscal year 2000 performance report, in resolving these challenges. The third column discusses the extent to which NSF’s fiscal year 2002 performance plan includes performance goals and measures to address each of these challenges. We found that while the fiscal year 2000 performance report discussed NSF’s progress in resolving most of its major challenges, it did not discuss NSF’s progress in resolving the following challenges: (1) addressing strategic human capital management issues regarding strategic human capital planning and organizational alignment, leadership continuity and succession planning, and creating results-oriented organizational cultures; (2) developing appropriate data security controls to reduce the ever increasing risk of unauthorized access; (3) developing a more coherent award administration program that ensures that grantees comply with NSF’s award requirements; (4) ensuring that NSF grantees meet their cost-sharing obligations; and (5) providing the science, operations, and logistics support needed to manage the U.S. Antarctic Program. Of NSF’s 10 major management challenges, its fiscal year 2002 performance plan (1) had goals and measures that were directly related to 5 of the challenges; (2) had goals and measures that were indirectly applicable to 1 challenge; (3) had no goals and measures related to 1 challenge but discussed strategies to address it; and (4) did not have goals, measures, or strategies to address 3 challenges.

This report reviews the National Science Foundation's (NSF) fiscal year 2000 performance report and fiscal year 2002 performance report plan required by the Government Performance and Results Act. Specifically, GAO discusses NSF's progress in addressing several key outcomes that are important to NSF's mission. NSF reported that it made substantial progress in achieving its key outcomes. Although the planned strategies for achieving these key outcomes generally are clear and reasonable, some are vague and do not identify the specific steps for achieving the goals. NSF's fiscal year 2000 performance report and fiscal year 2002 performance plan reflect continued improvement compared with the prior year's report and plan. Although the 2002 performance plan does not substantially address NSF's human capital management, NSF is developing a five-year workforce strategic plan to address strategic human capital management issues that must be submitted to the Office of Management and Budget by July 20, 2001. NSF's performance report did not explain its progress in resolving information security challenges, but NSF indicated that it has internal management controls that continually monitor data security.

The United States health care system is a large sector of the economy comprised of clinicians, health care delivery organizations, insurers, consumers, and government health agencies. According to the Medicare Payment Advisory Commission, the health care industry generally uses less IT than other industries, and the extent and types of IT deployed vary by setting and institution. The health care industry has recognized that IT can improve the quality of care, promote patient safety, reduce costs of both care and administrative functions, and expedite response to public health emergencies. Public health officials are increasingly concerned about our exposure and susceptibility to infectious disease and food-borne illness because of global travel, increased volume of food imports, and the evolution of antibiotic-resistant pathogens. Public health experts maintain that a strong infrastructure could provide the capacity to prepare for and respond to both acute and chronic threats to the nation’s health, whether they are bioterrorism attacks, emerging infections, disparities in health status, or increases in chronic disease and injury rates. IT can play an essential role in supporting federal, state, local, and tribal governments in public health activities and clinical care delivery. For public health emergencies in particular, the ability to quickly exchange data from provider to public health agency—or from provider to provider—is crucial in detecting and responding to naturally occurring or intentional disease outbreaks. It allows physicians to share individually identifiable information with public health agencies for use in performing public health activities. The Centers for Disease Control and Prevention (CDC) has previously acknowledged several IT limitations in the public health infrastructure. For example, basic capability for disease surveillance systems to detect and analyze disease outbreaks is lacking for several reasons. First, health care providers have traditionally used paper- or telephone-based systems to report disease outbreaks to approximately 3,000 public health agencies. This is a labor-intensive, burdensome process for local health care providers and public health officials, often resulting in incomplete and untimely data. Second, not all public health agencies have access to the Internet or to secure channels for electronically transmitting sensitive data. Several types of systems can play vital roles in identifying and responding to public health emergencies, including acts of bioterrorism. These types of systems—described in a technology assessment for the Department of Health and Human Services (HHS) that was completed by the University of California San Francisco-Stanford Evidence-based Practice Center—serve different but related functions and include the following: Detection—systems that consist of devices for the collection and identification of potential biological agents from environmental samples, making use of IT to record and send data to a network. Surveillance—systems that facilitate the performance of ongoing collection, analysis, and interpretation of disease-related data to plan, implement, and evaluate public health actions. Diagnostic and clinical management—systems with potential utility for enhancing the likelihood that clinicians will consider the possibility of bioterrorism-related illness. These systems are generally designed to assist clinicians in developing a differential diagnosis for a patient who has an unusual clinical presentation. Communications—systems that facilitate the secure and timely delivery of information to the relevant responders and decision makers so that appropriate action can be taken. In April of this year, the President issued an Executive Order, which recognizes the importance of IT to the improvement of the health care system to address problems with high costs, medical errors, and administrative inefficiencies. The order establishes the position of a National Health Information Technology Coordinator. This new position has been tasked with providing leadership for the development and nationwide implementation of interoperable health IT in both the public and private health care sectors. The President also announced a goal of having EMRs available for most Americans within the next 10 years. IT can provide significant benefits in providing clinical health care and in the administrative functions associated with health care delivery. Last October, we identified 20 examples of reported cost savings or other benefits at 14 health care organizations that had implemented IT solutions in their clinical care environments. The rapidly rising costs of health care, along with an increasing concern for the quality of care and the safety of patients, are driving health care organizations to use IT to automate clinical care operations and their associated administrative functions. IT is now being used for, among other things, EMRs, order management, Internet access for patient and provider communications, and automated billing and financial management. Health care delivery organizations identified instances that resulted in cost savings from the use of IT as a result of reductions in costs associated with medication errors, communication and documentation of clinical care and test results, staffing and paper storage, and processing of information. Specific examples included: A teaching hospital reported that it realized about $8.6 million in annual savings by replacing paper medical charts with EMRs for outpatients. It also reported saving over $2.8 million annually by replacing its manual process for handling medical records with electronic access to laboratory results and reports. A teaching hospital reported that it saved $5 million annually on drug substitutions, based on automated prompts that recommended alternatives resulting in increased quality and decreased cost. A community hospital prevented the administration of over 1,200 wrong drugs or dosages and almost 2,000 early or extra doses by using bar code technology and wireless scanners to verify both the identities of patients and their correct medications. The reported monetary value of the errors prevented was almost $850,000. An integrated health care delivery organization reduced the overall number of daily chart pulls, estimating that about $5.7 million in medical record staffing costs were avoided or saved annually. IT also contributed to other benefits, such as shorter hospital stays, faster communication of test results, improved management of chronic disease, and improved accuracy in capturing charges associated with diagnostic and procedure codes. For example, A teaching hospital reported a decrease in average length of stay from 7.3 to 5 days when it implemented an integrated EMR system that resulted in improvements in health care efficiency and practice changes. A teaching hospital reported improved patient scheduling using a rules-based electronic scheduling system that accommodated travel time to the appointment, fasting requirements, and providers’ availability. An integrated health care delivery organization reported improvements in diabetes control for members with the disease, decreases in upper gastrointestinal studies ordered, and increases in the number of Pap smears performed by using alerts and reminders, automated patient care guidelines, and data warehouse reports. A teaching hospital reported that 4 percent of radiology orders that had been entered into the order entry system were cancelled and 55 percent were changed when an embedded alert warned that an order was inappropriate for specified clinical reasons. Health care organizations also told us that EMRs could also improve the delivery of care because, among other reasons, more complete medical documentation was available to support the provider’s diagnosis. In addition, EMRs greatly facilitate the reporting of public health information associated with the early detection of and response to disease outbreaks. The lessons learned that were reported to us by health care organizations that have successfully implemented IT may prove useful for other organizations as they implement solutions—such as recognizing the importance of reengineering business processes, gaining users’ acceptance, providing adequate training, and making systems available and secure. For example, organizations reported that business process changes were key in effectively implementing the technology and that users, including physicians, should be involved in systems design and implementation. In May 2003, we reported that six federal agencies involved in bioterrorism preparedness and response had a large number of existing and planned information systems associated with supporting a public health emergency. Specifically, these agencies identified 72 information systems and supporting technologies. Of the 72 systems, 34 are surveillance systems, 18 are supporting technologies, 10 are communications systems, and 10 are detection systems. In spite of these many initiatives, the key ones that are intended to facilitate greater information sharing are still being developed and implemented. For example, CDC is currently implementing its Public Health Information Network, which consists of a number of disease surveillance and communications systems, including the Health Alert Network. This network is an early warning and response system intended to provide federal, state, and local agencies with better communications during public health emergencies. The Department of Defense is using its Electronic Surveillance System for the Early Notification of Community-based Epidemics (ESSENSE) to support early identification of infectious disease outbreaks in the military by comparing analyses of data collected daily with historical trends. We also found that agencies varied in the extent to which they interacted and coordinated with other agencies in planning and operating each of these initiatives. The October 2001 anthrax attacks and the subsequent emergence of new infectious diseases have highlighted the importance of data standards for real-time data exchange across the public health infrastructure. During the anthrax attack, participants accumulated dissimilar data and principally exchanged it manually. Since 1993, we have called for federal leadership to expedite the standards development process in order to accelerate the use of EMRs. Most recently, in May 2003, we again reported that the identification and implementation of health care data, communications, and security standards—which are necessary to support the compatibility and interoperability of agencies’ various IT systems—remains incomplete across the health care industry. We also identified other standards setting initiatives (e.g., CHI and HIPPA) and raised concerns about coordinating these initiatives. To address the challenges of coordinating the many IT initiatives and implementing a consistent set of standards, we recommended that the Secretary of Health and Human Services (HHS), in coordination with other key stakeholders, establish a national IT strategy for public health preparedness and response, including specific steps toward improving the nation’s ability to use IT in support of the public health infrastructure. Specifically, we recommended, among other things, that the Secretary set priorities for information systems, supporting technologies, and other IT initiatives; define activities for ensuring that the various standards-setting organizations coordinate their efforts and reach further consensus on the definition and use of standards; establish milestones for defining and implementing all standards; create a mechanism—consistent with HIPAA requirements—to monitor the implementation of standards throughout the health care industry. Since our May 2003 report, HHS has continued its efforts to identify applicable standards throughout the health care industry and across federal health care programs. For example, in May 2004, the CHI initiative—one of OMB’s e-government projects—announced fifteen additional standards that build on the initial five announced in March 2003. Federal agencies are expected to include the standards in their architectures and when they build, acquire, or modify systems. Current plans for the CHI initiative call for it to be incorporated into HHS’s Federal Health Architecture by September 2004. This architecture is still evolving, and many issues—such as coordination of the various standards setting efforts and implementation of the standards that have been identified—are still works in progress. Until these standards are more fully implemented, federal agencies and others associated with the public health infrastructure cannot ensure that their systems will be capable of exchanging data with other systems when needed and consequently cannot ensure effective preparation for and response to public health emergencies, including acts of bioterrorism. In addition, in April of this year, the President issued an Executive Order, which calls for the establishment of a National Health Information Technology Coordinator and the issuance of a broader strategic plan to guide the nationwide implementation of interoperable health care information systems. The coordinator is also specifically tasked with creating incentives for the use of health IT and accelerating the adoption of EMRs, among other things. The Coordinator plans to present the strategic plan next week. Such a plan, if properly crafted, should help to move the health care industry towards interoperable information systems. As health IT initiatives are pursued, it will be essential to have continued leadership, clear direction, measurable goals, and mechanisms to monitor progress. In summary, there are many opportunities and challenges associated with the implementation of IT for clinical care delivery and public health. The federal government, namely HHS, has taken a leadership role in establishing a strategy and identifying data and communications standards, which are critical for sharing data across the health care industry—both to improve the quality of patient care in the United States and to strengthen the public health infrastructure. However, much more work remains to more fully utilize IT for the delivery of care and to identify and respond to public health emergencies. HHS needs to provide continued leadership, sustained and focused attention, clear direction, and mechanisms to monitor progress in order to bring about measurable improvements and achieve the President’s goals. Mr. Chairman, this concludes my statement. I would be happy to answer any questions that you or members of the subcommittee may have at this time. If you should have any questions about this testimony, please contact me at (202) 512-9286 or M. Yvonne Sanchez, Assistant Director, at (202) 512-6274. We can also be reached by e-mail at pownerd@gao.gov and sanchezm@gao.gov, respectively. Other individuals who made key contributions to this testimony include Joanne Fiorino, M. Saad Khan, and Mary Beth McClanahan. This is a work of the U.S. government and is not subject to copyright protection in the United States. It may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.

Health care is an information-intensive industry that remains highly fragmented and inefficient. Hence, the uses of information technology (IT)--in delivering clinical care, performing administrative functions, and supporting the public health infrastructure--have the potential to yield both cost savings and improvements in the care itself. In 2003, GAO reported on benefits to health care that could result from using IT--both cost savings and measurable improvements in the delivery and quality of care. GAO also reported on federal agencies' existing and planned information systems intended to support our nation's preparedness for and ability to respond to public health emergencies and the status of health care standards setting initiatives. Congress has asked GAO to summarize our work on reported benefits of the use of IT for health care delivery and on IT initiatives supporting public health preparedness and response. The use of IT can yield benefits in clinical care and associated administrative functions as well as in public health. Health care organizations reported that electronic medical records (EMR) improved the delivery of care because, among other reasons, more complete medical documentation was available to support the provider's diagnosis. In addition, EMRs could greatly facilitate the reporting of public health information associated with the early detection of and response to disease outbreaks. One hospital replaced outpatients' paper medical charts with EMRs, realizing about $8.6 million in annual savings. This hospital also established electronic access to laboratory results and reports, replacing its manual process for handling medical records and saving another $2.8 million a year. In addition, the lessons learned that were reported to us by health care organizations that have successfully implemented solutions could be used by other organizations to accelerate the adoption of health IT. These lessons recognize the importance of reengineering business processes, gaining users' acceptance of IT, providing adequate training, and making systems secure. Regarding public health, federal agencies identified 72 existing and planned information systems--34 surveillance systems, 18 supporting technologies, 10 communications systems, and 10 detection systems. For example, the Centers for Disease Control and Prevention is currently implementing its Public Health Information Network comprised of a number of disease surveillance and communications systems, including the Health Alert Network. This network is an early warning and response system that is intended to facilitate communication among federal, state, and local agencies during public health emergencies. GAO also reported that identification and implementation of health care data, communications, and security standards--which are necessary to support compatibility and interoperability of agencies' various IT systems--remained incomplete across the health care sector. To address the challenges of coordinating the many IT initiatives and implementing a consistent set of standards, GAO recommended last year that the Secretary of Health and Human Services develop a strategy for public health preparedness and response, to include setting priorities for IT initiatives and establishing mechanisms to monitor the implementation of standards throughout the health care industry. Since that time, progress has been made in identifying standards. The Office of Management and Budget's e-government initiative, the Consolidated Health Informatics initiative, has identified a number of standards to be applied to new federal development efforts and modifications of existing systems. This initiative is intended to promote the interoperability of information systems. However, implementing these standards across the federal government is still a work in progress. Until these standards are implemented, information-sharing challenges will remain. In April of this year, Executive Order 13335 established a National Health IT Coordinator and called for a strategic plan to guide the nationwide implementation of interoperable health IT. As this plan moves forward, it will be essential to have continued leadership, clear direction, measurable goals, and mechanisms to monitor progress.

In his State of the Union Address on January 28, 2003, President George W. Bush announced a new $720 million research and development (R&D) initiative to promote hydrogen as a transportation fuel. The Hydrogen Fuel Initiative is intended to complement the FreedomCAR initiative, which focuses on cooperative vehicle research between the federal government, universities, and private industry. The FreedomCAR initiative replaced a related Clinton Administration initiative, the Partnership for a New Generation of Vehicles (PNGV), announced in 1993. While both initiatives aimed to increase fuel efficiency of the automotive fleet, FreedomCAR extended the time frame by another 10 to 15 years and focused research on hydrogen fuel cell vehicles; PNGV focused mainly on diesel-fueled hybrid vehicles. Through FY2003, the overall level of funding for PNGV- and FreedomCAR-related research at the Department of Energy (DOE) remained relatively constant, with some of the funds for hybrid vehicles transferred to fuel cell research. For FY2004, however, overall funding for research (within the Office of Energy Efficiency and Renewable Energy) into hydrogen fuel, fuel cells, and vehicle technologies increased by about 30%. Some of this increase was offset by funding reductions in other programs, but the major portion of the increase was new funding. For FY2005 through FY2008, funding for hydrogen and fuel cell R&D steadily increased. However, for FY2009, the Bush Administration has requested 30% below the FY2008 appropriation for hydrogen, fuel cell, and vehicle technologies programs. Much of that decrease would be offset by an almost doubling of related basic science research. Overall, the request is roughly 4% below FY2008 levels for all related research. Most federal research on hydrogen fuel and fuel cell vehicles is overseen by two offices within the DOE Office of Energy Efficiency and Renewable Energy (EERE). The Office of FreedomCAR and Vehicle Technologies (FCVT) coordinates research on automotive fuel cells and other advanced vehicle technologies, including electric propulsion systems, vehicle systems, materials technology, and other areas. The Office of Hydrogen, Fuel Cells and Infrastructure Technologies (HFCIT) coordinates research on fuel cell technologies (for all applications, not solely transportation), as well as research on hydrogen fuel production, delivery and storage systems. As part of its FY2006 budget request for the Hydrogen Fuel Initiative, DOE added ongoing research funded through three additional DOE offices, as well as a small amount of research funding at the Department of Transportation. The three DOE offices are the Office of Fossil Energy (FE), the Office of Nuclear Energy (NE), and the Office of Science (SC). Members of the partnerships include the federal government and the national laboratories, as well as universities, state governments, vehicle manufacturers, energy companies, equipment manufacturers, and industry groups. Funding for FreedomCAR and Hydrogen Fuel Initiative research (including hydrogen-related research fossil energy research, nuclear hydrogen research and basic scientific research) is included in the Energy and Water Development appropriations bill. Funding for these areas is shown in Table 1 . The mission of the Hydrogen Fuel Initiative is to "research, develop, and validate fuel cells and hydrogen production, delivery, and storage technologies for transportation and stationary applications." Fuel cell R&D areas include transportation systems, stationary systems, fuel processing, fuel cell components, and technology validation. The focus of hydrogen fuel R&D includes hydrogen production and delivery, fuel storage, hydrogen infrastructure, safety, codes and standards, and training and education. The FreedomCAR and the Hydrogen Fuel Initiatives have each set four goals for 2015, and share one additional goal between them. The shared goal is to produce hydrogen-fueled engine systems that achieve double to triple the efficiency of today's conventional engines at a cost competitive with conventional engines. FreedomCAR's individual goals mainly focus on reducing system costs for various technologies. The FreedomCAR goals are to develop electric drive systems with a 15-year life and significantly reduced hardware costs; advanced internal combustion engine systems with double to triple the efficiency of current systems at no greater cost and no higher emissions than conventional engine systems; electrical energy storage with improved life and lower cost than current systems; and materials and manufacturing technologies that achieve a 50% weight reduction in vehicle structure, while maintaining affordability and increasing the use of recyclable/recycled materials. The four goals for the Hydrogen Fuel Initiative focus on improvements in fuel cell technology and improvements in the storage and delivery of hydrogen fuel. The Initiative's goals are to develop hydrogen fuel cell power systems that are durable, and deliver higher efficiency at lower cost than today's systems; transportation fuel cell systems that deliver greater efficiency and lower cost, and meet or exceed emissions standards; hydrogen refueling systems that are highly efficient and deliver fuel at the market price of gasoline; and on-board hydrogen storage systems with improved energy density and cost over existing systems. The creation of FreedomCAR and the President's Hydrogen Fuel Initiatives have raised debate over several issues. These issues include the proper role of the government in R&D, as well as the proper level of funding, and concerns over energy efficiency and fuel consumption. Some environmental groups, including the Sierra Club, have criticized the initiatives. They argue that while funding has increased for efficient technologies, the initiatives do not require auto manufacturers to make fuel cell vehicles available to customers by any specific time. Also, groups such as the Natural Resources Defense Council argued that the initiatives were put in place to forestall significant increases in national fuel economy standards. However, in 2007 Congress enacted more stringent fuel economy standards for passenger cars and light trucks as part of the Energy Independence and Security Act of 2007 ( P.L. 110-140 ). The Administration argues that the higher R&D funding will provide significant impetus for advancements in hydrogen and fuel cell technologies, and that without those advancements, the technology would be unaffordable for consumers. Further, some engineers argue that FreedomCAR's efficiency and cost goals may be difficult to attain in the time frame of the program, and that any sort of sales goal would be unrealistic. Moreover, industry groups argue that an explicit sales goal could force manufacturers to abandon R&D on other promising technologies like gasoline-electric hybrids. Even among supporters of the program, there is criticism that FreedomCAR and the President's Hydrogen Fuel Initiative are under-funded and that additional government commitments to hydrogen and fuel cells must be made. According to some proponents, these commitments could take the form of increased R&D funding, expanded demonstration programs, vehicle and fuel sales or production incentives, and other incentives to make these vehicles attractive to customers. Finally, some critics argue there are too many technical and economic hurdles to the development of affordable, practical hydrogen and fuel cell technology, especially for automobiles, and that federal research should focus on more realistic goals. In addition to DOE, other government agencies are also involved in fuel cell vehicle R&D, although this funding is considerably lower. For example, the National Automotive Center (NAC), part of the Army's Tank-Automotive Research, Development, and Engineering Center (TARDEC), coordinates fuel cell vehicle research between the Department of Defense (DOD) and private contractors, and partners with DOE, the Department of Transportation (DOT), the Environmental Protection Agency (EPA), academia, and industry. The appropriations processes over the next few years will directly affect the future of FreedomCAR and the President's Hydrogen Fuel Initiative. Between FY2004 and FY2008, the Administration's stated goal was a funding increase for both initiatives of $720 million above FY2003 levels for FY2004 through FY2008. In total, Congress appropriated an additional $450 million in total between FY2004 and FY2008 for hydrogen, fuel cell, and advanced vehicle programs. Congress appropriated an additional $145 million for other programs, mainly basic sciences, for a total increase of roughly $600 million over that five-year period. In addition to appropriations legislation, hydrogen and fuel cell vehicles are addressed by other recent legislation. On August 8, 2005, President Bush signed the Energy Policy Act of 2005 ( P.L. 109-58 ). Among other provisions, P.L. 109-58 authorizes appropriations for hydrogen and fuel cell research at higher levels than requested by the President—$3.3 billion over five years. In addition to R&D funding, the bill provides tax incentives for the purchase of new fuel cell vehicles. FreedomCAR and the President's Hydrogen Fuel Initiative raise several key issues for Congressional consideration. Some of these issues are: Given rising federal deficits and the potential for increased defense costs, can the federal government afford the recent increase for hydrogen and fuel cell R&D? Should the federal government be picking hydrogen and fuel cell vehicle technologies over other technologies, such as hybrid vehicles and lean-burn engines? Would the designation of a target deadline for commercialization of fuel cell vehicles help focus the program and make better use of funding resources? Alternately, would such a deadline force manufacturers to abandon other promising technologies or create an unfair burden on the industry? Should the government focus on long-term research or should it focus on technologies closer to commercialization, or both? Is the widespread use of hydrogen and fuel cells technically and economically feasible, or is the government taking too large a risk on unproven technology?

FreedomCAR and the Hydrogen Fuel Initiative are two complementary government-industry research and development (R&D) policy initiatives that promote the development of hydrogen fuel and fuel cell vehicles. Coordinated by the Department of Energy (DOE), these initiatives aim to make mass-market fuel cell and hydrogen combustion vehicles available at an affordable cost within 10 to 15 years from the launch of the initiatives. However, questions have been raised about the design and goals of the initiatives. This report discusses the organization, funding, and goals of the FreedomCAR and Fuel partnerships, and issues for Congress.

As the complexities of the problems facing America have increased, Congress has responded the way hundreds of their constituents have, by going back to school. Early organization and orientation have provided Members a "leg up" in addressing pressing needs. When the first Congress convened over 200 years ago, farmers and soldiers, journalists and scientists, carpenters and statesmen travelled from throughout the colonies to New York to take the oath of office as Members of the first Congress. They adopted rules, organized the structure of their chambers, and began legislating, each in accordance with the Member's own individual understanding of just how to do that and how to be both a representative and a legislator, that is, how to be a Member of Congress. There was no specific precedent to follow, no educational institution to attend to explore the intricacies of the legislative process, no classes to take to practice the politics of bicameralism and bipartisanship, no management consultant to teach them how to administer their offices. And so, these Members, and the hundreds who followed them, learned on the job, learned from their predecessors and each other, and learned from their mistakes. As the nation grew and prospered, and the number of Members increased with "manifest destiny," it became clear that "on the job training" was no longer sufficient. The issues were becoming more complex, the procedures more intricate. In the early 1970s, nearly 200 years after the first Members arrived to legislate, Congress began to consider formalizing its pre-Congress preparations, both structural and educational. The belief seemed to be that the sooner the organizational decisions were made and the structure was in place, the faster the start Members would have in solving the problems of the day. As well, the more Members knew about the intricacies and complexities of those problems, the more sophisticated the deliberations would be, the sooner those deliberations could begin, and the more comprehensive and appropriate the eventual response would be. Accordingly, in 1974, pursuant to the adoption of H.Res. 988 (93 rd Congress), the Committee Reform Amendments of 1974, the House authorized early organizational meetings for its Members. The Senate followed suit soon thereafter. Speaker Carl Albert and Minority Leader Gerald Ford agreed that during the transition time between Congresses, preparation for the next Congress would be of invaluable help in reducing the organizational and legislative congestion that normally accompanies the start of a Congress. Prior to the convening of a new Congress (somewhere between November 13 and December 20 of any even-numbered year), Democratic party caucuses or Republican party conferences may be called by the majority and minority leaders after consultation with the Speaker. If done, the business is, among other things, to choose party leaders, committee leaders, and committee members. As well, Members can pick up political tips, technical and administrative lessons, policy facts, figures and interpretations, and a sense of the informal "rules of the game." Members-elect receive travel and per diem allowances, while reelected Members receive travel allowances if the House has adjourned sine die . Both groups are expected to attend. In the past four decades, these meetings have become more formalized, more comprehensive, more valued, and more necessary. In fact, these sessions go far beyond those envisioned in 1974. Now, not only are there meetings for making organizational decisions, but also ones for educational purposes. Now, not only are they for Members, but some are for Members and staff together while others are for staff only. Some are for Members and their spouses, some even are limited to spouses of newly elected Members. Now, not only are they sponsored by the party caucus and conferences, but by the respective campaign committees, the House Administration and Senate Rules and Administration Committees, Harvard University's Institute of Politics, the Congressional Management Foundation, the Congressional Research Service, the Heritage Foundation, and numerous informal groups both on and off the Hill. Now, not only are they held in Washington, DC, but in Cambridge, MA, Annapolis, MD, and Williamsburg, VA, as well. Each is well attended. The educational sessions available range from legislative procedures, both in committee and on the floor, to how to hire a staff, and how to construct an office budget. They cover the broad range of current issues from defense to the environment to agriculture, from the specifics of a particular weapons system to the best method of reducing the federal deficit. They are taught by current Members, former Members, government practitioners, and academic experts. They focus on the substance of issues, previous attempts at legislative changes, the Administration's position, and the outlook for action in the current Congress. Numerous interest groups provide information for consideration, as does the party leadership. The organizational sessions serve as the first introduction to Congress and to each other for the new Members and attest to the value and intent of the early meetings envisioned in 1974. Accordingly, before the end of the year, class officers are elected, party leaders selected, and chamber officers, such as the chaplain, chosen. Regional representatives to steering and policy committees, designees to the committees on committees, and other party officials are named. Chairmen of selected committees are elected and members of those committees are often chosen. Each of these actions is then subject only to official ratification at the start of the Congress. Room selection drawings and room assignments are also accomplished during these sessions. Each January of a recent odd-numbered year, Congress has begun work earlier than it used to. Both chambers immediately make remaining committee assignments, while committees hold their organizational sessions to establish subcommittees, make subcommittee assignments, hire staff, and adopt committee rules. Accordingly, when the scores of measures introduced on the first day are referred to committee, Congress is ready to get to work on its legislative agenda without having to spend time on organizational and administrative matters.

Since the mid-1970s, the House and Senate have convened early organization meetings in November or December of even-numbered years to prepare for the start of the new Congress in January. The purposes of these meetings are both educational and organizational. Educational sessions range from legislative procedures and staff hiring to current issues. Organizational sessions elect class officers, party leaders, and chamber officers; name committee representatives and other party officials; and select committee chairmen and often committee members. Such actions are officially ratified at the start of the new Congress.

Addressing the Year 2000 problem in time will be a formidable challenge for the District of Columbia. The District government is composed of approximately 80 entities, responsible for carrying out a vast array of services for a diverse group of stakeholders. These services include municipal, state, and federal functions, such as street maintenance and repairs, economic development and regulation, trash pick-up, water and sewer services, educational institutions, hospital and health care, public safety, and correctional institutions. Each of these services is susceptible to the Year 2000 problem. The Year 2000 problem is rooted in the way dates are recorded and computed in automated information systems. For the past several decades, systems have typically used two digits to represent the year, such as “97” representing 1997, in order to conserve on electronic data storage and reduce operating costs. With this two-digit format, however, the year 2000 is indistinguishable from 1900, or 2001 from 1901. As a result of this ambiguity, system or application programs that use dates to perform calculations, comparisons, or sorting may generate incorrect results. The District has a widespread and complex data processing environment, including a myriad of organizations and functions. There are four major data centers located throughout the city, each serving divergent groups of users, running multiple applications, and using various types of computer platforms and systems. Most of the District’s computer systems were not designed to recognize dates beyond 1999 and will thus need to be remediated, retired, or replaced before 2000. To complicate matters, each District agency must also consider computer systems belonging to other city agencies, other governments, and private sector contractors that interface with their systems. For example, the Social Security Administration exchanges data files with the District to determine the eligibility of disabled persons for disability benefits. Even more important, the District houses the most critical elements of the federal government. The ability of the District to perform critical government services after the century date change is not only essential to District residents but also important to the continuity of operations of the executive, congressional, and judicial offices housed here. In addition, the Year 2000 could cause problems for the many facilities used by the District of Columbia that were built or renovated within the last 20 years and contain embedded computer systems to control, monitor, or assist in operations. For example, water and sewer systems, building security systems, elevators, telecommunications systems, and air conditioning and heating equipment could malfunction or cease to operate. The District cannot afford to neglect any of these issues. If it does, the impact of Year 2000 failures could potentially be disruptive to vital city operations and harmful to the local economy. For example: Critical service agencies, such as the District’s fire and police departments, may be unable to provide adequate and prompt responses to emergencies due to malfunctions or failures of computer reliant equipment and communications systems. The city’s unemployment insurance benefit system may be unable to accurately process benefit checks as early as January 4, 1999. The city’s tax and business systems may not be able to effectively process tax bills, licenses, and building permits. Such problems could hamper local businesses as well as revenue collection. Payroll and retirement systems may be unable to accurately calculate pay and retirement checks. Security systems, including alarm systems, automatic door locking and opening systems and identification systems, could operate erratically or not all, putting people and goods at risk and disabling authorized access to important functions. To address these Year 2000 challenges, we issued our Year 2000 Assessment Guide to help federal agencies plan, manage, and evaluate their efforts. This guide provides a structured approach to planning and managing five delineated phases of an effective Year 2000 program. The phases include (1) raising awareness of the problem, (2) assessing the complexity and impact the problem can have on systems, (3) renovating, or correcting, systems, (4) validating, or testing, corrections, and (5) implementing corrected systems. We have also identified other dimensions to solving the Year 2000 problem, such as identifying interfaces with outside organizations specifying how data will be exchanged in the year 2000 and beyond and developing business continuity and contingency plans to ensure that core business functions can continue to be performed even if systems have not been made Year 2000 compliant. Based on the limited data available on the status of local and state governments, we believe that the District’s Year 2000 status is not atypical. For example, a survey conducted by Public Technology, Inc. and the International City/County Management Association in the fall and winter of 1997, found that of about 1,650 cities that acknowledged an impact from Year 2000, nearly a quarter had not begun to address the problem. In addition, state governments are also reporting areas where they are behind in fixing Year 2000 problems. For example, as we recently testified before the Subcommittee on Government Management, Information and Technology, House Committee on Government Reform and Oversight, a June 1998 survey conducted by the Department of Agriculture’s Food and Nutrition Service, found that only 3 states reported that their Food Stamp Program systems were Year 2000 compliant and only 14 states reported that their Women, Infants, and Children program were compliant. Moreover, four states reported that their Food Stamp Program systems would not be compliant until the last quarter of calendar year 1999, and five states reported a similar compliance time frame for the Women, Infants, and Children program. Until June 1998, the District had made very little progress in addressing the Year 2000 problem. It had not identified all of its mission-critical systems, established reporting mechanisms to evaluate the progress of remediation efforts, or developed detailed plans for remediation and testing. In addition, it lacked the basic tools necessary to move its program forward. For example, it had not assigned a full-time executive to lead its Year 2000 effort, established an executive council or committee to help set priorities and mobilize its agencies, or identified management points-of-contact in business areas. Since this past June, the District has recognized the severity of its situation and taken a number of actions to strengthen program management and to develop a strategy that is designed to help the city compensate for its late start. For example, to improve program management, the District has hired a new chief technology officer, appointed a full-time Year 2000 program manager, established a Year 2000 program office, and continued to use its chief technology officer council to help coordinate and prioritize efforts. The District also contracted with an information technology firm to assist in completing the remediation effort. To accomplish this in the short time remaining, the District and the contractor plan to concurrently (1) remediate and test system applications, (2) assess and fix the information technology (IT) infrastructure, including the data centers, hardware, operating systems, and telecommunications equipment, (3) assess and correct noninformation technology assets, and (4) develop contingency plans. So far, the District has done the following. Developed an inventory of information technology applications. Of the 336 applications identified, the District and its contractor determined that 84 are deemed Year 2000 compliant, 135 have already been remediated but still need to be tested, and 117 need to be remediated and tested. According to the District, over 9 million lines of code still need to be remediated. Initiated pilot remediation and test efforts with the pension and payroll system. The system has been converted and the conversion results are being readied for system users to review. The District expects to complete the pilot by December 31, 1998. Adopted a contingency planning methodology that it is now piloting on the 911 system, the water and sewer system, and the lottery board system. It expects to complete the first two pilots by October 31, 1998, and the remaining one during the first quarter of fiscal year 1999. Developed a strategy for remediating non-IT assets that is now being tested on the water and sewer system. This is also expected to be done by October 31, 1998. After this effort is completed, the District and the contractor will begin to assess and remediate non-IT equipment at agencies providing critical safety, health, and environmental services. The District’s recent actions reflect a commitment on the part of the city to address the Year 2000 problem and to make up for the lack of progress. However, the District is still significantly behind in addressing the problem. As illustrated in the following figure, our Assessment Guide recommends that organizations should now be testing their systems in order to have enough time to implement them. They should also have business continuity and contingency plans in place for mission-critical systems to ensure the continuity of core business operations if critical systems are not corrected in time. By contrast, the District is still in the assessment process—more than 1 year behind our recommended timetable. For example, it has not identified all of its essential business functions that must continue to operate, finished assessing its IT infrastructure and its non-IT assets, provided guidance to its agencies on testing, and identified resources that will be needed to complete remediation and testing. Until the District completes the assessment phase, it will not have reliable estimates of how long it will take to renovate and test mission-critical systems and processes and to develop business continuity and contingency plans. The District will also be unable to provide a reliable estimate of the costs to implement an effective Year 2000 program. Further, the District has had some problems in completing the assessment phase. For example, according to program office officials, three agencies—the Court System, Superior Court, and Housing Authority—have refused to participate in the program office’s assessment activities. Agencies also do not consistently attend program office meetings and do not always follow though on their assessment commitments, such as ensuring that program office and contractor teams have access to agency personnel and data. Program office officials attributed these problems to the office’s limited authority and the lack of mandatory requirements to participate in the Year 2000 program. Failure to fully engage in the Year 2000 program can only increase the risks the District faces in trying to ensure continuity of service in key business process areas. District officials acknowledge that the city is not able to provide assurance that all critical systems will be remediated on time. We agree. Therefore, to minimize disruptions to vital city services, it will be essential for the District to effectively manage risks over the next 15 months. First, because it is likely that there will not be enough time to remediate all systems, the District must identify and prioritize its most critical operations. This decision must collectively reside with the key stakeholders involved in providing District services and must represent a consensus of the key processes and their relative priority. The results of this decision should drive remediation, testing, and business continuity and contingency planning and should provide increased focus to the efforts of the Year 2000 office and its contractor. To this end, we recommend that the District, along with its current Year 2000 efforts, identify and rank the most critical business operations and systems by October 31, 1998. The District should use this ranking to determine by November 30, 1998, the priority in which supporting systems will be renovated and tested. Continuity of operations and contingency plans for these processes and systems should also be initiated at this time if such action is not already underway. Second, for systems that may not complete remediation but that are still important to city operations, managers will need to develop contingency plans for continued operations. It is essential that such plans be developed early to provide stakeholders as much time as possible to provide resources, develop “workarounds,” or secure legislative or administrative approvals as necessary to execute the plans. Third, because of the dependencies between the District and the surrounding local and federal government entities, the District will need to work closely with those bodies to both identify and prepare appropriate remedial steps and contingency plans to accommodate those dependencies. We recommend that the District immediately develop an outreach program to first identify its dependencies and then determine the remediation required to minimize the risk of Year 2000 failure. Finally, efforts to address this problem must have continued top-level commitment from the Chief Management Officer and the department and agency heads, the Mayor’s office, and the control board. Establishing a program office and hiring a contractor with significant expertise is a good first step. However, the key stakeholders need to “own” the process, i.e., participate in critical decision-making on program direction, provide resources and support for the program, and ensure that all District agencies and offices fully participate in the process. To conclude, we believe the District’s Year 2000 program needs an absolute commitment from its leadership to make the most of the short time remaining. By addressing the steps outlined above, the District can better ensure a shared understanding of the key business processes that must be remediated, a shared understanding of the risks being assumed in establishing priorities for remediation, testing, and business continuity and contingency planning, and a shared commitment to provide the resources required to address those priorities. Mrs. Chairwoman and Mr. Chairmen, this concludes my statement. 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GAO discussed the year 2000 risks facing the District of Columbia, focusing on: (1) its progress to date in fixing its systems; and (2) the District's remediation strategy. GAO noted that: (1) until June 1998, the District had made very little progress in addressing the year 2000 problem; (2) to compensate for its late start, the District has hired a new chief technology officer, appointed a full-time year 2000 program manager, established a year 2000 program office, and continued to use its chief technology officer council to help coordinate and prioritize efforts; (3) the District also contracted with an information technology firm to assist in completing the remediation effort; (4) to accomplish this in the short time remaining, the District and the contractor plan to concurrently: (a) remediate and test system applications; (b) assess and fix the information technology (IT) infrastructure, including the data centers, hardware, operating systems, and telecommunications equipment; (c) assess and correct noninformation technology assets; and (d) develop contingency plans; (5) the District has done the following: (a) developed an inventory of information technology applications; (b) initiated pilot remediation and test efforts with the pension and payroll system; (c) adopted a contingency planning methodology which it is now piloting on the 911 system, the water and sewer system, and the lottery board system; and (d) developed a strategy for remediating non-IT assets which is now being tested on the water and sewer system; (6) the District's recent actions reflect a commitment on the part of the city to address the year 2000 problem and to make up for the lack of progress; (7) however, the District is still significantly behind in addressing the problem; (8) the District has not: (a) identified all of its essential business functions that must continue to operate; (b) finished assessing its IT infrastructure and its non-information technology assets; (c) provided guidance to its agencies on testing; and (d) identified resources that will be needed to complete remediation and testing; (9) until the District completes the assessment phase, it will not have reliable estimates on how long it will take to renovate and test mission-critical systems and processes and to develop business continuity and contingency plans; (10) District officials acknowledge that the city is not able to provide assurance that all critical systems will be remediated on time; and (11) therefore, to minimize disruptions to vital city services, it will be essential for the District to effectively manage risks over the next 15 months.

Under Article III of the U.S. Constitution, the jurisdiction of federal courts is limited to actual, ongoing cases and controversies. From this constitutional requirement comes several "justiciability" doctrines that may be invoked in federal court actions that could prevent plaintiffs from maintaining a legal claim against defendants. The four justiciability doctrines are standing, ripeness, political question, and mootness. These doctrines will render a controversy "nonjusticiable" if a court decides that any one of them applies. Standing addresses whether the plaintiff is the proper party to assert a claim in federal court. Ripeness considers whether a party has brought an action too early for adjudication. The political question doctrine makes nonjusticiable controversies that involve an issue constitutionally committed to the political branches of government. There are two types of mootness: Article III mootness and prudential mootness. As the name implies, the former is derived from the constitutional requirement that judicial power be exercised only in "cases" or "controversies." The latter concerns a federal court's discretion to withhold use of judicial power in suits that—while not actually moot—should be treated as moot for "prudential" reasons. Usually, a case or controversy must exist throughout all stages of federal judicial proceedings, and not just when the lawsuit is filed or when review is granted by an appellate court. The dispute must concern "live" issues, and generally, the plaintiffs must have a personal interest in the outcome of the case. The Supreme Court has described mootness as follows: The "personal stake" aspect of mootness doctrine ... serves primarily the purpose of assuring that federal courts are presented with disputes they are capable of resolving. One commentator has defined mootness as "the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." When a legal claim becomes moot while awaiting appellate review, the established practice is for the federal appeals court to reverse or vacate the judgment below and to remand the case to the district court with an instruction to dismiss the action. That consequence is because a moot case does not qualify as a "case or controversy" under Article III; due to the lack of jurisdiction, federal courts have no power to consider the merits of a constitutionally moot case. Cases may be rendered moot because of a change in the status of the parties or in the law, or because of an act of one of the parties that dissolves the controversy. The following paragraphs provide examples of these scenarios. When a white law school applicant challenged the constitutionality of a public law school's affirmative action admissions policy, he was admitted to the school pursuant to a trial court ruling that found in his favor. During his second year of law school, the state's supreme court reversed the lower court's decision. By the time the Supreme Court granted certiorari to hear the case, the student was in his final school term. The Court dismissed the case as moot because "the petitioner will complete his law school studies at the end of the term for which he has now registered regardless of any decision this Court might reach on the merits of this litigation...." A lawsuit was filed claiming that the suspension and termination of disability benefit payments under the Social Security Act violated the procedural due process rights of the recipients. Before oral argument before the Supreme Court, the Secretary of Health, Education, and Welfare adopted new regulations governing the procedures to be followed by the Social Security Administration in determining whether to suspend or terminate disability benefits. In light of this development, the Court held "that the appropriate course is to withhold judicial action pending reprocessing, under the new regulations, of the determinations here in dispute. If that process results in a determination of entitlement to disability benefits, there will be no need to consider the constitutional claim that claimants are entitled to an opportunity to make an oral presentation." A prison inmate was transferred by corrections authorities, without notice or an opportunity for a hearing, from a medium security prison to a maximum security prison. The inmate filed a lawsuit alleging a violation of his due process rights under the Fourteenth Amendment of the U.S. Constitution; however, while his appeal was pending, he was transferred twice, first back to the medium security facility and thereafter to a minimum security institution. The Supreme Court held that the suit no longer presented a case or controversy, and thus dismissed the case as moot. Equitable, or prudential mootness, has been referred to as the "cousin of the mootness doctrine" and described as relating to the court's discretion in matters of remedy and judicial administration. Unlike Article III mootness, [it] address[es] not the power to grant relief but the court's discretion in the exercise of that power. In some circumstances, a controversy, not actually moot, is so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant. Thus, while a case may not be moot for failure to meet Article III's requirements, a court may nevertheless "treat [the case] as moot for prudential reasons" and decline to exercise judicial power in the case. The doctrine of prudential mootness is often applied in cases where the federal court declines to grant the plaintiff's request for declaratory judgment or injunctive relief because the defendant "has already changed or is in the process of changing its policies or where it appears that any repeat of the actions in question is otherwise highly unlikely." The Supreme Court has explained that the burden on the party asking the court to dismiss a case on prudential mootness grounds is a "heavy one," as the movant (usually the defendant) must "demonstrate that there is no reasonable expectation that the wrong will be repeated." The Supreme Court has recognized several exceptions to the mootness doctrine that, if found to apply to a case, would permit federal court adjudication of the dispute. In Sibron v. New York , an individual convicted of unlawful possession of heroin had completed service of his prison sentence prior to Supreme Court review of the case. The Court explained that the case was not moot: Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected. As the power to remedy an invalid sentence exists, we think, respondent is entitled to an opportunity to attempt to show that this conviction was invalid. This exception to the mootness doctrine thus applies in the criminal context, when there is a "possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." Even a "remote" possibility of such consequences is enough to save a criminal case from becoming moot. Some disputes or injuries may arise in the short-term and have the potential for recurrence, but always fail to last long enough to permit federal judicial review. In such a situation, federal courts have justified an exception to the mootness doctrine. A classic example is the landmark abortion case, Roe v. Wade. The Supreme Court explained why the exception should be invoked in this instance: [W]hen, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. However, the Court has held that this exception applies only in "exceptional situations," where the plaintiff "can make a reasonable showing that he will again be subjected to the alleged illegality." If a defendant voluntarily terminates the allegedly unlawful conduct after the lawsuit has been filed but retains the power to resume the practice at any time, a federal court may deem the case nonmoot. The "heavy burden" of persuading the court that a case has been mooted by the defendant's voluntary actions lies with the party asserting mootness, and the standard for such a determination is a "stringent" one: "if subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior [can] not reasonably be expected to recur." This exception is supported by the Supreme Court because, in addition to ensuring that the defendant is not "free to return to his old ways," there is "a public interest in having the legality of the practices settled." For example, an environmental group had filed a citizen suit under the Clean Water Act against Laidlaw, a company that operated a wastewater treatment plant, alleging that the plant had discharged far more toxic pollutants into a river than it was allowed under terms of a government-issued permit. However, after the lawsuit began, Laidlaw began to comply with the discharge limit. The Supreme Court held that this case was not moot because it was a "disputed factual matter" whether the company's substantial compliance with its permit requirements, or its closure of the facility in question (which had occurred after the court of appeals had issued its decision), would make "it absolutely clear that Laidlaw's permit violations could not reasonably be expected to recur." When the claim of the named plaintiff in a certified class action becomes moot, the class action will not be dismissed so long as a member of the class continues to have a sufficiently adversarial relationship to constitute a live controversy. For example, a plaintiff brought a class action to challenge a one-year residency requirement in a state divorce statute, on the ground that it violated the U.S. Constitution. By the time her case reached the Supreme Court, she had long since satisfied the state's durational residency requirement, a development that, had she filed the suit only on her own behalf, would have made the case moot because she no longer retained a personal stake in the outcome. However, the Court noted the significant fact that she had brought the lawsuit as a class action in a representative capacity, which affected the mootness determination: "When the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by [the named representative]," and therefore the Article III "cases or controversies" requirement was satisfied.

A case pending before a federal court may at some point in the litigation process lose an element of justiciability and become "moot." Mootness may occur when a controversy initially existing at the time the lawsuit was filed is no longer "live" due to a change in the law or in the status of the parties involved, or due to an act of one of the parties that dissolves the dispute. When a federal court deems a case to be moot, the court no longer has the power to entertain the legal claims and must dismiss the complaint. However, the U.S. Supreme Court over time has developed several exceptions to the mootness doctrine. This report provides a general overview of the doctrine of "mootness," as the principle is understood and used by federal courts to decide whether to dismiss certain actions for lack of jurisdiction.

Social Security has provided significant income protection for the nation’s women. While women, on average, have lower earnings than men, the program has several features that are advantageous to women. First, unlike lifetime annuities purchased from private insurance companies, Social Security does not reduce women’s benefits to account for the fact that, as a group, they live longer than men. Second, Social Security uses a progressive formula to calculate individual benefits, which replaces a relatively larger proportion of lifetime earnings for people with low earnings than for people with high earnings. Because women typically earn less than men, women’s monthly benefits replace a larger proportion of their earnings. The program also provides benefits to retirees’ dependents—such as spouses, ex-spouses, and survivors—and roughly 99 percent of these benefits go to women. Nevertheless, women receive lower Social Security benefits than men. In December 1997, the average monthly retired worker benefit for women was $662.40 compared to $860.50 for men. This is because Social Security benefits are based primarily on a worker’s lifetime covered earnings, which on average are much lower for women. Although labor market differences between men and women have narrowed over time, the Bureau of Labor Statistics does not project that they will disappear entirely, even in the long term. Thus, women can expect to continue to receive lower average monthly benefits than men, although these differences are partially offset by the presence of spousal benefits. women’s Social Security benefits relative to men’s, since under the current rules Social Security calculates monthly benefits on the basis of lifetime taxable earnings averaged over a worker’s 35 years of highest earnings. Because women generally spend more time out of the labor force than men (primarily for reasons associated with child rearing), they have fewer years of taxable earnings; thus, more years with zero earnings are included in calculating their benefits. Even if women and men had identical annual earnings when they both worked, women’s shorter time spent in the labor force results in lower average lifetime earnings, which in turn leads to lower retirement benefits. In 1993, the average 62-year-old man had worked 36 years, whereas the average 62-year-old woman had worked only 25 years. Almost 60 percent of these 62-year-old men had a full 35 years of covered earnings compared with less than 20 percent of women. A second cause of lower lifetime earnings is women’s lower wage rates. In part, this reflects the fact that women are more likely to work part-time, and part-time workers tend to earn lower wages than full-time workers. However, even if only year-round, full-time male and female workers are compared, the median earnings for women are still less than 75 percent of men’s. The gap narrows when differences in education, years of work experience, age, and other relevant factors are taken into account. The changes contained in various Social Security reform proposals would likely have a disproportionate effect on women. Many reform proposals include provisions that would reduce current benefit levels, for example, reductions in the cost-of-living adjustment and increases in the normal or early retirement ages. Reducing all benefits proportionately would hit hardest those who have little retirement income other than Social Security. Reducing Social Security benefits by, for example, 10 percent would result in a 10-percent reduction in total retirement income for those who have no other source of income but would cause only a 5-percent reduction for those who rely on Social Security for only half their retirement income. Women, especially elderly women, are more likely to rely heavily, if not entirely, on Social Security. Among Social Security beneficiaries aged 65 or older in 1996, about half the married couples, two-thirds of the unmarried men, and three-fourths of the unmarried women (who accounted for almost half of the three groups) relied on Social Security for at least half their retirement income. One-fourth of the unmarried women relied on Social Security for all their retirement income. Other changes could exacerbate existing disadvantages for some women. For example, some proposals would extend the period for computing benefits from 35 years to 38 or 40 years. Because most women do not have even 35 years with covered earnings, increasing the computation period would increase the number of years with zero earnings used in calculating their benefits and, thus, lower their average benefit. The Social Security Administration (SSA) forecasts that fewer than 30 percent of women retiring in 2020 will have 38 years of covered earnings, compared with almost 60 percent of men. SSA estimates that extending the computation period to 38 years would reduce women’s benefits by 3.9 percent, while extending the period to 40 years would reduce their benefits by 6.4 percent. The comparable impact on men from an extension to 38 or 40 years is 3.1 percent and 5.2 percent, respectively. Some reform proposals include a specific provision designed to improve the status of survivors, who are predominantly widows, but simultaneously reduce spousal benefits that generally accrue to women. Under the current system, a retired worker’s spouse who is not entitled to benefits under her own work records will receive a benefit up to 50 percent of her husband’s benefit and a widow will receive up to 100 percent of her deceased husband’s benefit. One proposal would reduce the spousal benefit from 50 percent to 33 percent of the worker’s benefit but would increase the survivor’s benefit to either 75 percent of the couple’s combined benefit or 100 percent of the worker’s benefit, whichever is greater. One-earner couples would receive reduced lifetime benefits because the spousal benefit would be reduced while both the retiree and spouse were alive, but the survivor benefit would remain the same as under current law. Two-earner couples would lose some benefits while both were alive if one spouse was dually entitled, but the survivor would receive higher benefits than under current law. Many reform proposals would fundamentally restructure Social Security by creating retirement accounts that would be owned and managed by individuals. While such accounts can increase benefits for retirees, women on average might not reap the same advantages such an investment could bring to men. As stated earlier, the difference is partly the result of women having shorter work histories and lower earning levels, which suggests they generally will contribute less to these accounts. The difference is also partly the result of differences in investment behavior. Economists have found evidence suggesting that women generally are more risk averse than men in financial decisionmaking. Studies indicate that, compared with men, women might choose a relatively low-risk investment strategy that earns them lower rates of return for their retirement income accounts. Although proponents argue that individual accounts could raise retirement benefits for both sexes, an overly conservative investment strategy could leave women with lower final account balances than men, even if both make the same contributions. Thus, even though women could improve their financial situation under a retirement system that included individual accounts, the gap between the benefits received by men and women could increase. invest less in stocks than men. Our analysis, using different data and focusing on individuals in their prime working and saving years, increases the robustness of this conclusion. By investing less in these riskier assets, women benefit less from the potentially greater rates of return that, in the long run, stocks could generate. At the same time, however, they are not as exposed to large losses from riskier assets. While it is true that in the past U.S. stocks have almost always posted higher returns than less risky assets, there is no guarantee that they will always do so. Some pension specialists believe that information is a critical factor in helping individuals make the most of their retirement investments. Providing investors with information that covers general investment principles and financial planning advice might help both women and men to better manage their investments and close the gap in the average investment returns received by men and women. While employers are not legally required to provide this type of information, many have done so in the case of 401(k) accounts. It is not clear who would provide such information to workers under a restructured Social Security system that included mandatory individual accounts. The nature and extent of such information and education efforts, when combined with the design of related investment options, are likely to help maximize the effectiveness of, and minimize the risk associated with, individual accounts under the Social Security system. How individual account accumulations are paid out will also make a difference in retirement income for many women. Unless otherwise specified, workers could choose to receive their individual account balances at retirement as a lump-sum payment, as some pension plans now allow, to spend as they see fit. If retirees and their spouses do not accurately predict their remaining life spans and consume their account balances too quickly, they may end up with very small incomes late in life. individual accounts and still end up with very different monthly benefits if they were to purchase annuities and if the annuities were based on gender-specific life tables. Insurance companies that sell annuities usually take into account women’s longer life expectancy and either provide a lower monthly benefit to women or charge women more for the same level of benefits given to men. In the case of employer-provided group annuities, gender-neutral life tables must be used in the calculation of monthly benefits, which ensures equal benefits for men and women with the same lifetime earnings. Requirements to use gender-neutral life tables involve cross-subsidies between men and women. Insurance companies also pay lower benefits for a joint and survivor annuity that covers both husband and wife than for a single life annuity that covers only the worker during his or her lifetime—again because the total time in which the benefits are expected to be paid is longer. Women are more likely to receive the survivor portion of this type of annuity, since they are more likely to outlive their husbands. Thus, while the total lifetime annuity benefits for men and women may be similar, the monthly benefit women receive, either as retirees or as survivors, will likely be lower and could result in a lower standard of living in retirement. Other groups of women will also need to be considered if individual accounts are introduced. Under current Social Security provisions, divorced spouses and survivors are entitled to receive benefits based on their former spouse’s complete earnings record if they were married at least 10 years. Most of those receiving benefits under this provision are women. Many individual retirement account proposals do not acknowledge divorcees and survivors as having any specific claim on the individual accounts of their former spouses. Under these proposals, the current automatic provision of these benefits would be eliminated. The money in these accounts could become a part of the settlement at the time of a divorce, but the current benefit guarantee to these benefits might be lost. gender-neutral life tables would create cross-subsidies between men and women. However, doing so could protect retired women against a lower living standard that would result simply because they usually live longer than men. The needs of former spouses will also need to be considered in developing individual accounts. While the Social Security system has benefited women significantly through the spousal benefit and the progressivity of the benefit formula, women generally receive lower Social Security benefits than men because they work fewer years and earn lower wages. These work and earnings characteristics will affect the relative changes in average benefits for men and women under some reform proposals. In particular, these characteristics will work against women should reforms based on years with covered earnings be enacted. Because of women’s longer life expectancy, the creation of mandatory individual retirement accounts could also decrease women’s benefits relative to men’s if women continue to invest more conservatively than men. Women might also be disadvantaged if the accumulations in these accounts are paid as a lump sum rather than as a joint and survivor annuity based on gender-neutral life tables. Whether reforms include relatively modest modifications to the current system or more major restructurings that could include mandatory individual retirement accounts, some elements of the reform proposals could adversely affect many elderly women. Because elderly women are at risk for living in poverty, understanding how various elements of the population will be affected by different changes will be necessary if we are to protect the most vulnerable members of our society. This concludes my prepared statement. I would be happy to answer any questions you or other Members of the Subcommittee might have. The first copy of each GAO report and testimony is free. Additional copies are $2 each. Orders should be sent to the following address, accompanied by a check or money order made out to the Superintendent of Documents, when necessary. VISA and MasterCard credit cards are accepted, also. Orders for 100 or more copies to be mailed to a single address are discounted 25 percent. U.S. General Accounting Office P.O. Box 37050 Washington, DC 20013 Room 1100 700 4th St. NW (corner of 4th and G Sts. NW) U.S. General Accounting Office Washington, DC Orders may also be placed by calling (202) 512-6000 or by using fax number (202) 512-6061, or TDD (202) 512-2537. Each day, GAO issues a list of newly available reports and testimony. To receive facsimile copies of the daily list or any list from the past 30 days, please call (202) 512-6000 using a touchtone phone. 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Pursuant to a congressional request, GAO reviewed: (1) how women currently fare under social security; (2) how they might be affected by some of the proposed changes in benefits to restore solvency; and (3) how women might fare under a system restructured to include individual accounts. GAO noted that: (1) women have benefited significantly from the social security program; (2) many women who work are advantaged by the progressive benefit formula that provides larger relative benefits to those with lower lifetime earnings; (3) women who did not work or had low lifetime earnings and who were married benefit from the program's spousal and survivor benefit provisions; (4) however, women typically receive lower monthly benefits than men because benefits are based on earnings and the number of years worked; (5) any across-the-board benefit cuts to restore solvency might fall disproportionately on women as a group because they rely more heavily on social security income than men; (6) other types of reform approaches can have positive or negative effects on women depending on how the reforms are designed; (7) restructuring social security to include individual accounts also will likely have different effects on men and women; (8) because women earn less than men, contributions of a fixed percentage of earnings would put less into women's individual retirement accounts; (9) available evidence indicates that women also tend to invest more conservatively than men, and thus would likely earn smaller returns on their accounts, although they would bear less risk; (10) in addition, how such accounts are structured will be extremely important to women; (11) for example, whether individuals will be required to purchase annuities with the proceeds of their accounts at retirement and how the annuities are priced could affect women quite differently from men; and (12) how benefits might be distributed to divorcees and how accounts are transferred to survivors could affect the retirement income of some elderly women.

This report provides a chronology of selected events leading up to and following thediscoveries of bovine spongiform encephalopathy (BSE, or "mad cow disease") in North America. As of this writing, 10 native cases have been confirmed on this continent, seven in Canada and threein the United States. (1) BSE is a degenerative disease that is fatal to cattle, affecting their nervous system, and it has beenlinked to a rare but fatal human form of the disease which has occurred primarily in the UnitedKingdom, where most BSE cases also have been reported. The following chronology is not intended to be comprehensive. It is intended to be a timelinefor selected regulatory, legal, and congressional developments that are frequently referenced in theongoing policy debate. It does not contain entries for the introduction of the many BSE-related billsintroduced into this or previous Congresses, except for those in recent years where committee orfloor action has occurred or where markedly widespread attention has been focused. Nor does itcover a number of policy developments that are not directly BSE-related, but that nonetheless havearisen within the context of BSE debate, such as a universal animal identification (ID) program andcountry of original labeling (COOL) for meats and other commodities. Other CRS reports may provide more background and context for this policy debate. Theseinclude: CRS Report RS22345 , BSE ("Mad Cow Disease"): A Brief Overview , by[author name scrubbed]; CRS Report RL32414 , The Private Testing of Mad Cow Disease: Legal Issues ,by Stephen R. Viña; CRS Report RS21709 , Mad Cow Disease and U.S. Beef Trade , by Charles E.Hanrahan and [author name scrubbed]; and CRS Report RL32199 , Bovine Spongiform Encephalopathy (BSE or "Mad CowDisease"): Current and Proposed Safeguards , by [author name scrubbed] and Sarah A.Lister. Unless noted, the sources for the entries in this chronology are the above reports, as well asvarious U.S. Department of Agriculture (USDA) and Food and Drug Administration (FDA) pressreleases, fact sheets, and other publicly available materials, reports of hearings before the House andSenate Agriculture Committees, and for some entries, articles that appeared in leading food andagriculture trade periodicals including Food Chemical News , Feedstuffs , and Cattle Buyers Weekly . For an explanation of these and related BSE terms in this report, see the reports listed on theprevious page, and also CRS Report 97-905, Agriculture: A Glossary of Terms, Programs, andLaws, 2005 Edition , by [author name scrubbed], coordinator. When BSE was first identified in 1986 in a British laboratory, relatively little was knownabout its character, its cause, or how to contain it. The United Kingdom (UK) has so far been thehardest-hit region, where reported cases affecting cattle continued to climb through the late 1980sand early 1990s to a peak of more than 37,000 in 1992. Cases have been declining each year sincethen. Several other countries, primarily in other parts of Europe, also reported hundreds of additionalcases, according to the world animal health organization (OIE, its French acronym). As the UK and other countries were coping with BSE, the U.S. and Canadian governmentswere establishing panels to study the disease and instituting a series of safeguards aimed at keepingit out of North America or stopping any spread if it should occur here. Prior to 2003, the only knowncase of BSE in North America was in Canada, where a non-native case was discovered in late 1993. This animal is believed to have been born in and imported from Great Britain in 1987. The first native-born case of BSE in North America was confirmed in a cow in Alberta,Canada, in May 2003. The United States almost immediately halted the importation of virtually allruminants and ruminant products, including live cattle and beef, from Canada. (An interim final rulewas published in the May 29 Federal Register , retroactive to May 20.) In August, the U.S. Secretaryof Agriculture announced that the U.S. border would reopen to boneless beef from cattle under 30months old and other items considered to be of low risk for BSE. Rather than issuing a proposedor interim rule, USDA claimed authority to proceed under a standing veterinary import permittingprocess. In November, USDA proposed for comment a more extensive rule change that essentiallywould formalize and expand imports from Canada, to include among other things live cattle under30 months old. Shortly thereafter, testing of a cow in Mabton, Washington, indicated the presenceof the BSE agent. Confirmatory testing affirmed BSE, and the U.S. Secretary of Agriculture reportedthe findings on December 23. This became the first reported U.S. case, although investigatorsquickly determined that the animal was not native but rather was born in and imported from Canada. USDA, cattlemen, and meat industry officials scrambled to reassure U.S. and foreignconsumers that U.S. beef was safe and, as the year closed, the Secretary of Agriculture announcedthat she would take a number of major steps to strengthen existing U.S. BSE safeguards. Althoughdomestic demand remained firm, most foreign countries closed their borders to U.S. beef and liveruminants including cattle. USDA moved to implement the new measures it had announced at the close of 2003, whileat the same time it worked to restore full cross-border trade with Canada and Mexico. In the springof 2004, however, a cattlemen's group successfully sued USDA to halt any further expansion ofCanadian beef imports in a federal court. USDA then agreed to limit such beef imports to the typesit began permitting in August 2003, until it promulgated a rule finalizing its November 4, 2003,proposal. The enhanced BSE surveillance program began in earnest in June 2004; initial screening testsreported three possibly positive cases during the year (which USDA termed "inconclusives") thatlater were deemed to be negative for BSE. Nonetheless, cattle and beef markets reacted nervouslyto the reports; USDA was challenged sharply on the adequacy of their design and conduct of thetesting program and how results were being reported prior to final confirmation. At FDA, whereofficials had promised early in 2004 to revise their animal feed rules to tighten controls over possibleBSE contamination, deliberations over the rules continued through the end of the year. Some countries, notably Canada and Mexico, were again accepting some U.S. beef in 2004,as were several smaller country markets. But Japan and South Korea, the other top two destinationsfor U.S. beef, remained closed, despite what appeared to be a hopeful joint announcement in Octoberby the United States and Japan of a "framework" agreement for restarting U.S. exports there. In early 2005, as USDA was unveiling its new rule for permitting Canadian imports, Canadawas announcing two additional discoveries of BSE. This brought to four Canada's reportednative-born cases (including the one found in the United States). U.S. officials expressed confidencein Canadian BSE safeguards but sent a team to confirm that feed controls there were effective. R-CALF USA again sued USDA to halt Canadian beef and live cattle imports, winning atemporary injunction in early March against implementation of USDA's January 4, 2005, final rule. However, an appeals court ruled in July to stay (reverse) the lower court's ban. Younger Canadiancattle soon began crossing the border for the first time in more than two years. As Japan was engaged in what many U.S. critics regarded as a needlessly slow regulatoryprocess toward lifting its ban on U.S. beef imports, USDA reported, in June 2005, the second U.S.case of BSE, but the first to be confirmed in a native-born cow. The Texas animal initially had beensampled for BSE in November 2004. Screening tests at that time came back inconclusive (i.e.,possibly positive) for the disease, but follow-up testing failed to confirm it, USDA said inannouncing a negative result. However, at OIG's urging, department scientists re-tested samples inJune 2005, and the results were positive for BSE. In Japan, the regulatory process along withcontinued consumer resistance there delayed the border opening until December, when some U.S.beef imports began to be accepted again. In Congress, mounting frustration led to the introduction of several measures aimed atcoercing Japan into moving more quickly to reopen its border. One such measure passed the Senatein September as an amendment to the pending USDA appropriation, but it was removed inconference. (The Senate had voted in early March to block the USDA rule permitting Canadiancattle to enter, but necessary House action did not occur.) Efforts to fully restore beef and cattle trade encountered several setbacks in 2006. First,Japan in January again halted all U.S. beef imports after finding some vertebral bones in a shipmentof veal. U.S. and industry officials were forced to redouble their efforts, and agree to additionalconcessions, to regain market access, which Japan finally granted in late July. U.S. beef exportswere expected to arrive there starting in August. However, an agreement on the terms for shippingbeef and cattle to Korea continued to elude negotiators during the first half of 2006. These effortswere exacerbated somewhat by the confirmation in March 2006 of a second U.S.-born cow withBSE. U.S. beef trade with Canada continued, despite that country's finding of four additionalBSE-positive cattle. U.S. and Canadian officials stated that the new findings were not unexpectedand still within the limits permitted under the OIE guidelines for trading with a country with someBSE. However, several of the animals had been born after Canada's 1997 ban on feedingmammalian protein to ruminants, raising concerns about the effectiveness and enforcement of theban. Critics urged USDA to reconsider its proposed rules (now being reviewed prior to formalpublication in the Federal Register ) to permit the importation of older Canadian cattle and/or otherruminant products. Meanwhile, USDA officials announced in July that the Department would soon scale backits massive BSE testing program, reverting to a lower level of ongoing surveillance, afterdetermining that the potential level of the disease in the U.S. cattle herd is very low. At the time of this report, the Administration and many Members of Congress werecontinuing to focus on efforts to reopen more major foreign markets to U.S. beef, most notablyKorea. They also were awaiting the restart of beef exports to Japan, which officials in that countryhad promised would begin shortly after a successful round of U.S. plant inspections in July 2006. At hearings and other venues, U.S. policymakers and industry officials had been expressingfrustration with the pace of these market-opening efforts. Bills (such as S. 3364 , S. 3538 , and H.R. 5675 ) demanding trade sanctions against Japan havebeen introduced but likely will not be acted upon if the market does reopen as anticipated. (Asnoted, the pending Senate version of the FY2007 USDA appropriation, H.R. 5384 ,includes a committee-approved, nonbinding amendment recommending such sanctions.) After more than two years of intensive surveillance, with more than 764,000 tests ofhigher-risk cattle, only two U.S.-born BSE cases have been confirmed, according to USDA. Yetsome remain concerned about the disease and its potential threat to public health as well as trade,particularly in the wake of several additional findings of BSE in cattle. The age of several of theCanadian cattle -- that is, they were born after the implementation in 1997 of stronger cattle feedrules to protect against BSE -- has been cited as a worrisome development by some critics of NorthAmerican BSE safeguards. However, Canadian, USDA, and industry officials continue to argue that the overall NorthAmerican risk profile is unchanged. They have long warned that several additional BSE-positivecattle might be found, but should be no cause for alarm. These officials have repeatedly attemptedto reassure consumers and foreign buyers that U.S. cattle and beef are safe and pose no risk to animalhealth or to human food safety (although research into the numerous unknown aspects of the diseaseand of the TSE family of diseases, and consideration of additional regulatory safeguards, continues). Few observers had expected the trade and economic issues to be resolved quickly. Nonetheless, frustrations continue to mount over the length of time it has taken to regain entry intothe Japanese and Korean markets. Even after U.S. beef becomes eligible for Japanese importation,the industry faces the difficult task of both meeting restrictive Japanese requirements, and thenregaining the market share there that other countries, notably Australia, have since captured. Efforts to restore beef and cattle trade between the United States and Canada have been morefruitful, although some U.S. cattlemen continue to express concerns about the potential impacts onU.S. cattle health. Meanwhile, Congress can be expected to play a continued role, holding oversighthearings, providing funding for BSE-related activities, and possibly considering legislative optionsto address one or more of the problems at hand.

This report provides a chronology of selected events leading up to and following thediscoveries of bovine spongiform encephalopathy (BSE, or "mad cow disease") in North America. These are primarily regulatory, legal, and congressional developments that are frequently referencedin the ongoing policy debate. The chronology generally does not contain entries for the introductionof the many BSE-related bills introduced into this or previous Congresses, except for those in recentyears where committee or floor action has occurred. This report, which will be updated if significantdevelopments ensue, is intended to be used alongside other CRS reports that provide morebackground and context for the BSE policy debate, and that cover many specific legislativeproposals. The chronology begins in 1986, when BSE was first identified by a British laboratory. Asthe United Kingdom and others attempted to understand and contain BSE, the U.S. and Canadiangovernments were establishing panels to study the disease and began instituting a series ofsafeguards aimed at keeping it out of North America or stopping any spread if it should occur here. The chronology proceeds into May 2003, when Canada reported the first native case in NorthAmerica; December 2003, when the United States reported finding a case in a U.S. herd; and mostof 2004, when both countries worked to reassure consumers of the safety of North American cattleand beef and to reopen foreign markets blocking these exports. U.S. and Canadian officials since2003 also have been strengthening various regulatory safeguards aimed at protecting the cattle herdand the food supply from BSE. The chronology continues with major events of 2004, 2005, and the first half of 2006, whichhave revolved around efforts to re-establish more open cattle and beef trade within North America,even while a handful of new cases of BSE have emerged here, and the steps being taken to regainthe Japanese and Korean markets, which were until December 2003 two of the four leading foreignbuyers of U.S. beef. Both were closed as of mid-2006 (although Japan appeared on the verge ofreopening as of this writing). Congress can be expected to continue to play a role, holding oversighthearings, providing funding for BSE-related activities, and possibly considering legislative optionsto address one or more of the outstanding issues.

Having nearly 28,000 potentially contaminated sites, the Department of Defense manages one of the world’s largest environmental cleanup programs. Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, contractors and other private parties may share liability for the cleanup costs at these sites. Two major types of sites that may involve such liability are government-owned, contractor-operated facilities (whose operators may be liable) and formerly used Defense sites (whose current and past owners and operators may be liable). The Defense Environmental Restoration Program Annual Report to the Congress is the primary reporting vehicle for the status of cleanup at the many sites for which DOD is either solely or partly responsible for the contamination. The report contains information on the status of cleanup at the sites, such as the amounts spent to date; future costs; and the stage of completion, among other data. In 1992, 1994, and 1997, we reported that the Department had inconsistent policies and practices for cleanup cost reimbursements to and/or recovery of cleanup costs from non-DOD parties responsible for contamination. We recommended that the Secretary of Defense provide guidance to resolve the inconsistencies. The guidance issued by the Department requires the components to pursue the recovery of cleanup costs of $50,000 or more and to include in the annual report to the Congress each site’s name and location, the recovery status, the amount recovered, and the cost of pursuing the recovery. Under the guidance, if a component determines that it is not in the best interests of the government to pursue a cost recovery, it must inform the Deputy Under Secretary of Defense for Environmental Security (now, the Deputy Under Secretary for Installations and Environment), who is responsible for compiling the annual report to Congress. The guidance does not define “cost recovery” or “cost sharing,” and does not address (1) how the costs of pursuing recovery should be determined; (2) whether data on cost recoveries should be reported by fiscal year, cumulatively, or both; and (3) what the procedures are for ensuring that the data are accurate, consistent, and complete. Because the Department’s management guidance is silent or unclear on key aspects of reporting necessary to collect, verify, and report data on cleanup cost recoveries, its report to Congress for fiscal year 1999 does not provide accurate, consistent, or complete data. Sound management practices require that organizations have clear and specific guidance regarding what data are to be collected and how they are to be reported, and the controls to ensure the accuracy and completeness of the reports. The reports should be useful to managers for controlling operations and to auditors and others for analyzing operations. While we note that the data reported in fiscal year 1999 were more extensive than those reported in 1998, the guidance issued by DOD does not provide sufficient detail to ensure the effective collection, verification, and reporting of data on cost recoveries. From fiscal year 1998 through fiscal year 1999, DOD reported that cost recoveries increased from $125.3 million to $421.5 million. (See table 1.) The reported increase in recoveries is incorrect because $250.4 million, over half of the $421.5 million reported as cost recoveries in 1999, was not the amount DOD recovered but the amount it spent on environmental cleanups conducted by other parties. For example, the Army Corps of Engineers reported that at Weldon Spring, Missouri, it had recovered $180.6 million. Supporting records, however, show the amount as the Corps’ share of costs for cleanup the Department of Energy is performing at the site. Corps officials told us they reported only the Corps’ share of cleanup costs at these sites because the guidance did not define “cost sharing.” In addition, these officials said they did not know what others spend on cleanup at the sites. (This is further discussed in the section on the data’s completeness.) The Corps of Engineers also incorrectly reported recoveries totaling about $70 million at other sites that were also its share of cleanup costs rather than recovered amounts. Additionally, there were other reporting inaccuracies. For example, two sites with ongoing recoveries—the Rocky Mountain Arsenal and the Massachusetts Military Reservation—that should have been reported by the Army in the fiscal year 1998 report were not reported until the following year. The reported recoveries at these two sites were $17.3 million and $28.2 million, respectively, and were not reported because the Army did not report cost sharing arrangements in fiscal year 1998. DOD’s guidance did not specify how to calculate the costs of pursuing recovery or whether components should report fiscal year data, cumulative data, or both. Consequently, the components’ reported data for both cost recoveries and the costs of pursuing recoveries were not consistent. Calculating the costs of pursuing recoveries has been particularly problematic. For example, although some costs, such as certain legal costs, are obviously related to efforts to recover costs, other legal costs, such as those incurred in defense against charges brought by states or counties, are not. Reported costs to pursue recovery for fiscal years 1998 and 1999 were $6.2 million and $37.3 million, respectively. In the absence of sufficient guidance, Defense components have varied in their reporting of cost recoveries and the costs to pursue recoveries: The Air Force estimated the costs of pursuing recoveries at one site and applied these same costs to other sites. It was also the only component that reported cost sharing arrangements with other federal agencies. The Navy said it did not keep records to allow it to capture the costs of pursuing recoveries in fiscal year 1998 and reported “unknown” or “to be determined” in fiscal year 1999. The Defense Logistics Agency reported $3.6 million in costs to pursue recoveries and $1.1 million in recovered amounts. Officials later determined that some of the reported costs, such as contract costs for investigating and cleaning up the site, should not have been included. Reporting entities have also been inconsistent in reporting data by fiscal year and cumulatively. For example, in the 1998 report, the Army used fiscal year data for cost recoveries and cumulative data for costs to pursue recoveries. The following year, it used fiscal year data for both. The Air Force and Defense Logistics Agency used cumulative data for recoveries and costs to pursue recoveries. The Navy used cumulative data for recoveries. Each of the methods for presenting data—cumulatively or by fiscal year— has certain drawbacks. Showing data cumulatively shows the long term progress that DOD has made in recovering costs, but it can also obscure instances in which no recoveries occurred in a given fiscal year. Conversely, data for the fiscal year do not show total recoveries at a given site. The environmental cleanup cost recovery data reported to Congress for fiscal year 1999 were more extensive than that reported in the previous fiscal year’s report primarily because the Corps of Engineers reported on cost sharing arrangements at 86 sites that it did not report in fiscal year 1998. The Army also reported on two additional sites in the report for fiscal year 1999. The Navy reported on one additional site, and the Air Force added one site but eliminated another. Despite the improvement, the Department still did not report all cost recoveries in the cost recovery appendix. In the absence of sufficient guidance, the Defense components have not reported all cost recoveries or costs to pursue recoveries: The body of the Department’s report includes a field for additional program information pertaining to each site. This field includes information such as progress in conducting investigations and contracts awarded for cleanup. Comments in the additional information field and other sections of the report indicated that cost recovery activities were occurring at sites that were not included in the cost recovery appendix. We identified 138 sites where cleanup costs exceeded the Department’s threshold for pursuing recoveries, and where there were indications that either cost recovery was being considered or that non-DOD parties were involved in cleanup. None of these sites were reported in the cost recovery appendix. Fifty-five of these sites were from the fiscal years 1998 and 1999 reports. For example, the groundwater cleanup at Bethpage Naval Weapons Industrial Reserve Plant, New York, involved Northrop/Grumman and the Occidental Chemical Company. Also, comments listed under the Army Tarheel Missile Plant, North Carolina, indicated that cost recovery would be requested from Lucent Technologies, a caretaker contractor at the installation. Neither, however, was included in the report’s cost recovery appendix. Failure to include these and other sites at which components may be recovering costs requires decisionmakers and others to search through over 800 pages of reported cleanup data to obtain a complete picture of cost recovery activities. The Defense components are required to report both the costs shared with non-DOD parties at the time of cleanup and the costs that they recovered from non-DOD parties after cleanup. However, the components did not report the amounts for some recoveries because they did not know how much money the non-DOD parties had contributed to cleanups resulting from cost sharing arrangements. The Department’s guidance does not include directions for obtaining, calculating, or estimating these amounts; and the components do not have adequate procedures to gather this information. As a result, for 88 sites listed in the fiscal year 1999 report, the amounts spent by non- DOD parties under cost sharing arrangements were not shown. (See table 1.) Although it is required, none of the DOD components provided the reasons for deciding not to pursue cost recoveries. According to DOD officials, some reasons for not pursuing recoveries include circumstances where there is insufficient evidence that non-DOD parties caused the problems at the site, where the other responsible party is no longer in business, or where pursuit of the recovery would cost more than the expected amounts recovered. The pursuit of recovery actions is a complex and lengthy process, and decisions to pursue cost recovery at some locations may take a long time. The cost recovery data in the Department’s annual environmental cleanup report for fiscal year 1999 are not useful to the Congress or the Department for management or oversight because they are inaccurate, inconsistent, and incomplete. The lack of sufficient guidance resulted in the Department’s overstating reported cost recoveries by $250 million, inconsistent reporting among the Defense components, and the failure to include all recoveries in the cost recovery appendix of the report. These problems limit the ability of the Congress and the Department to determine the extent to which recoveries may offset environmental cleanup costs. To ensure that the Congress and the Department of Defense have accurate, consistent, and complete information on cost recovery efforts, we recommend that the Secretary of Defense direct the Deputy Under Secretary of Defense for Installations and Environment to modify existing guidance in areas where it is silent or unclear and provide specific guidance for (1) defining the types of cost sharing arrangements that should be reported, (2) calculating the costs of pursuing recovery, (3) reporting both cumulative and fiscal year data, and (4) capturing and reporting amounts spent by non-DOD parties under cost sharing arrangements. The guidance should include control procedures for ensuring that the data reported by the Department’s components are accurate, consistent, and complete; identify all responsible parties; and include reasons for not pursuing recoveries. In official oral comments on a draft of this report from the Office of the Deputy Under Secretary of Defense (Installations and Environment), the Department concurred with our recommendations and plans to develop more accurate, consistent, and complete information on cost recovery data. In September 2001, after our report was submitted to the Department for comments, DOD issued revised management guidance that cited a number of actions that address our recommendations. If effectively implemented, the guidance should improve overall reporting of cost recovery data. The Department also noted that it was unable to verify the numbers in our report because we had obtained data that were not included in the fiscal year 1999 annual report. As noted in our report, we visited or obtained data directly from selected sites in order to validate the annual report data and found the data to be inaccurate, inconsistent, and incomplete. Accordingly, the noted discrepancies are part of the basis for our recommendations. Unless you publicly announce its contents earlier, we plan no further distribution of this report until 30 days after its issue date. At that time, we will send copies to the appropriate congressional committees; the Secretaries of Defense, the Army, the Air Force, and the Navy; the Director of the Defense Logistics Agency; and the Director, Office of Management and Budget. We will also make copies available to others upon request. Please contact me on (202) 512-4412 if you or your staff have any questions concerning this report. Major contributors to this report are listed in appendix II. To determine whether the Department of Defense’s reporting of cost sharing and recovery data was accurate, consistent, and complete, we examined the relevant sections of the Department’s annual reports to Congress for fiscal years 1998 (Appendix F) and 1999 (Appendix E) and documentation on the Department’s and components’ reporting criteria and other policies. We compared reported data with data from other sources, including, for example, comments in other sections of DOD’s annual reports, supporting documents from selected locations, and our previous reports. We selectively reviewed supporting information for 100 of the 130 sites listed in DOD’s cost recovery report for fiscal year 1999. We selected the sites because reported recoveries exceeded $1 million, because we had identified cost recovery at those sites during earlier work and/or because our prior work revealed potential problems with data for these sites. We discussed the data with headquarters officials at the Departments of Defense, the Army, the Navy, and the Air Force and with the Defense Logistics Agency. In addition, we visited and/or obtained information directly from the following 12 cleanup sites: Rocky Mountain Arsenal, Colorado. Twin Cities Army Ammunition Plant, Arden Hills, Minnesota. Former Weldon Spring Ordnance Works, Weldon Spring, Missouri. Former Fort Devens, Massachusetts. Air Force Materiel Command and Wright-Patterson Air Force Base, Ohio. Naval Air Station, Whidbey Island, Washington. Navy Facilities Engineering Command, Poulsbo, Washington. Defense Supply Centers, Richmond, Virginia, and Philadelphia, Pennsylvania. Army Corps of Engineers, Kansas City, Missouri, and Omaha, Nebraska, Districts. To identify indications of possible responsible parties or cost recovery agreements, we reviewed the “additional program information” columns in printed annual reports for several fiscal years, including fiscal years 1998 and 1999. We used the latest available cost data from these reports to determine which sites had past and/or estimated costs of $50,000, the threshold level for DOD’s cost recovery requirements, and determined whether they had been reported in the cost recovery appendixes in fiscal years 1998 and 1999. There were 55 comments in other parts of the reports for fiscal years 1998 and 1999 that indicated the presence of potential responsible parties or that cost recovery was being considered or pursued. We conducted our review from August 2000 to August 2001 in accordance with generally accepted government auditing standards. In addition to those above, Robert Ackley, Arturo Holguin, and Tony Padilla made key contributions to this report.

The cleanup of contaminated Department of Defense (DOD) sites could cost billions of dollars. Private contractors or lessees that may have contributed to such contamination may also be responsible for cleanup costs. DOD and other responsible parties either agree to a cost sharing arrangement with the responsible parties conducting the cleanup or DOD conducts the cleanup and attempts to recover the other parties' share after the cleanup. On the basis of a GAO study, DOD issued guidance requiring its components to identify, investigate, and pursue cost recoveries and to report on them in the Defense Environmental Restoration Program Annual Report to Congress. The data on cost recoveries from non-Defense parties included in the Department's report for fiscal year 1999 were inaccurate, inconsistent, and incomplete. As a result, neither Congress nor DOD can determine the extent of progress made in recovering costs or the extent to which cost recoveries may offset cleanup costs. Data on cost recoveries included throughout the annual report were also missing from the appendix. Thus, DOD may not know whether all potential cost recoveries have been actively pursued and reported.

United States v. Santos involved a challenge to the conviction of the operator of an illegal lottery and one of his collectors for violating a provision of 18 U.S.C. § 1956, a key federal criminal anti-money laundering statute. The defendants were charged with using the "proceeds" of unlawful activity to conduct a financial transaction with intent to promote the illegal gambling business. For a conviction under this particular subsection of the statute, which covers a form of money laundering, referred to as "promotional money laundering," the prosecution must prove: (1) that the defendant engaged in a financial transaction involving the "proceeds" of an unlawful activity; (2) that the unlawful activity had been designated by the statute as a "specified unlawful activity"; (3) that defendant knew that the property involved in the transaction "represents the proceeds of some form of unlawful activity"; and (4) the defendant had the "intent to promote the carrying on of specified unlawful activity." At their trial, the defendants were convicted of operating an illegal gambling business in violation of 18 U.S.C. § 1955. Under 18 U.S.C. § 1955, anyone convicted of conducting or owning an illegal gambling business is subject to a criminal fine and imprisonment for up to five years. Proof of "illegal gambling business" requires a showing that the gambling business violates state law; involves five or more persons; and has been in operation for more than thirty days or has a gross revenue of $2,000 a day. The evidence showed that gambling receipts were used to pay the expenses of the operation—payouts to winners, salaries to employees, costs of betting slips, etc.—as well as to realize profits. The promotional money laundering charge was based on payments to winners and to employees—runners—of the gambling business. These payments were part of the underlying charge of operating an illegal gambling business. The defendant convicted of operating the gambling business received a 60-month sentence for the illegal gambling conviction and 210 months for the money laundering. The issue presented to the Court was a straightforward question of statutory interpretation: as used in 18 U.S.C. § 1956, does "proceeds" mean "profits" or "gross receipts?" For Santos and his co-conspirators, the answer the Court provided is "profits." For others, however, the answer is not clear because there is no majority opinion in the case; there is an opinion for a plurality of four justices which is joined by a concurring opinion by a fifth justice, Justice Stevens, that limits the reach of the holding to a narrower ground. This means that the case may be cited as authority only for the narrow ground. Complicating this, however, are two factors: (1) the plurality opinion includes language seeking to confine the meaning of Justice Stevens's opinion; and (2) all of the other justices disavowed the approach taken by Justice Stevens. Justice Scalia, in the plurality opinion, writing for himself and Justices Souter, Ginsburg, and Thomas, found no way to decipher what Congress intended in using the word "proceeds" in 18 U.S.C. § 1956. He found that (1) there is no definition of "proceeds" in 18 U.S.C. § 1956; (2) the federal criminal code does not provide a consistent definition or use for the term; (3) either "profits" or "gross receipts" would fit everywhere "proceeds' is used in the statute; and (3) dictionaries revealed no overwhelming preference for a primary ordinary meaning of the term. Declaring himself unable to resolve the ambiguity, Justice Scalia resorted to the rule of lenity which requires clarity in criminal statutes and ambiguities resolved in favor of defendants. He reasoned that, because "profits" is harder to prove than "gross receipts," defining "proceeds" as "profits" is more lenient towards defendants, and, therefore, it is the required interpretation in the statute. This means that, under this statute, prosecutors must prove, in addition to the other elements of the offense, that the defendant knew that the property involved in the transaction is " profits " of "some form of unlawful activity" and that the transaction involves " profits " of "specified unlawful activity." In the opinion, Justice Scalia seeks to dispel arguments raised by the Solicitor General that defining "proceeds" as "profits" undermines the purpose of the money laundering statute—punishing concealment and promotion of illegal activities—because it does not capture all the funds generated by the illegal activity. He first asserts that the purpose of the money laundering laws might well have been eliminating the harm caused by pouring criminal profits into expanded criminal activity (i.e., "leveraging" profits). He, then, notes that the "profits" interpretation avoids the merger problem that would occur in many of the predicate offenses named in 18 U.S.C. 1956, including operating an illegal gambling business in violation of 18 U.S.C. § 1955. This is because, if "proceeds" were interpreted to mean "gross receipts," every separate expense of the underlying crime paid after its commission would be subject to prosecution both as the substantive crime and as the money laundering offense. This would raise the double-jeopardy-like situation that the merger doctrine seeks to prevent. In a concurring opinion, Justice Stevens essentially limits the reach of the plurality opinion. He did not focus on the rule of lenity although his rationale is consistent with it to the extent that he would interpret "proceeds" to mean "profits" in the case before the Court. He begins with a premise which no other justice embraces—that courts may choose different interpretations of ambiguous terms in statutes depending on the factual circumstances. He draws a parallel between the scope of judicial interpretation of statutes and the power of Congress to flesh out terms in statutes. He concludes that because Congress could specify separate meanings for a term in a statute, courts having to fill in statutory gaps occasioned by ambiguous language do not have to decide on one meaning for all circumstances. To him, the logic is: if Congress may apply different definitions drafting legislation, courts may also do so. From this premise, he seems to have concluded that Congress intended different meanings for "proceeds" in § 1956. Following this conclusion, Justice Stevens finds that "proceeds" is intended to mean "profits" where, as with the predicate offense of conducting an illegal gambling business, there is no legislative history of congressional intent to the contrary. On the other hand, the opinion seems to assert that legislative history of congressional intent is necessary before courts may extend the meaning of "proceeds" to gross receipts. The opinion also contains language indicating that there is the possibility that there is legislative history to substantiate congressional intent to authorize money laundering prosecutions based on gross receipts transactions for certain offenses. Although Justice Stevens alludes to the possibility that legislative history supports interpreting "proceeds" as "gross receipts" for some types of prosecutions, it is significant that the plurality opinion disputes this and characterizes it as dicta. This may raise uncertainty as to the sustainability of convictions involving the contraband and organized crime offenses of the kind Justice Stevens cited as having legislative history supporting a "gross receipts" definition of "proceeds." Because many of the money laundering cases that have been brought under the subsection of 18 U.S.C. § 1956 at issue have involved payment of expenses of the underlying crime, the Justice Department's ability to shut off the funding of criminal activities may be severely inhibited. An added problem will be the difficulty of sustaining the burden of proof that will be required to show "profits" of criminal activities. In its merits brief, the Solicitor General argued that this burden would be substantial and perhaps insurmountable. In a dissenting opinion, written by Justice Alito, joined by Chief Justice Roberts, and Justices Kennedy and Breyer, there is a further indication of the difficulties that the "profits' definition will present to prosecutors: (1) one of the main purposes of enacting the money laundering laws was to target professional money launderers who are unlikely to know or care whether the property they are dealing with is "profits" or "gross receipts"; (2) a "profits" interpretation would require courts to determine the ordinary expenditures of criminal activities to distinguish them from "profits"; and (3) under the plurality opinion, if the government charges a continuing offense over period of years—as in the case before the Court—the government would have to show that the operation yielded a profit over the course of time charged. Another dissenting opinion, written by Justice Breyer, who also joined Justice Alito's dissent, alludes to possible solutions to what he, agreeing with the Justices Scalia and Stevens, sees as a merger problem—that prosecutors are able to transform one crime into two and add the money laundering punishments for "financial transactions that constitute an essential part of" the predicate offense. One approach he mentions is requiring that the money laundering transaction be "distinct" from the underlying offense. He also suggests that the merger problem could be corrected by relying on the U.S. Sentencing Commission to use its authority to address the unfairness resulting from using the money laundering statute to under 28 U.S.C. § 991(b)(1)(B). Justice Scalia takes issue with each of these suggestions: the first because "it has no basis whatever in the words of the statute" ; the second because it lacks certainty. S. 386 , the Fraud Enforcement and Recovery Act of 2009, has been passed by both the House and Senate and, as of May 19, 2009, awaits the signature of the President. It was introduced on February 5, 2009, by Senator Leahy to enhance federal enforcement capabilities to counteract mortgage fraud, securities fraud, and fraud with respect to federal financial assistance. In addition to provisions which provide funding for investigation and prosecution of this type of fraud; substantive provisions extending the reach of specific criminal statutes addressing financial fraud; and (in the version passed by the House) the creation of a legislative branch Financial Crisis Inquiry Commission, the bill includes an amendment to the definition of "proceeds" in the anti-money laundering laws to cover "gross receipts" of the underlying criminal activity. This is designed to solve the problems identified in the Santos decision by clarifying the ambiguity found by the Court and making it clear that "proceeds" means "gross receipts." Specifically, as passed by both House and Senate, S. 386 would add the following provision to 18 U.S.C. § 1956(c) and incorporate it into 18 U.S.C.§ 1957(c): "the term 'proceeds' means any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity." The House-passed version also includes a provision addressing the merger problem. It sets forth a sense of Congress that prosecutions under the major anti-money laundering statutes, 18 U.S.C. §§ 1956 and 1957, should not be undertaken in combination with the prosecution of any other offense, without prior approval of specified Department of Justice Officials or the relevant United States Attorney if the underlying predicate offense for the money laundering prosecution "is so closely connected with the conduct to be charged as the other offense that there is no clear delineation between the two offenses." This provision also includes a requirement that, for the next five years, the Department of Justice provide the House and Senate Judiciary Committees with annual reports on the prosecutions under such approvals, denied such approvals, and undertaken without such approvals where such approvals would have been relevant. Other measures in the 111 th Congress include: S. 378 , introduced by Senator Bayh, as a stand-alone measure to amend 18 U.S.C. § 1956(c)(8) to specify that "proceeds" includes "gross receipts," and H.R. 1793 , introduced by Representative Lungren, to amend 18 U.S.C. § 1956(c) to define "proceeds" as "any property derived from or obtained, directly or indirectly, through the commission of any specified unlawful activity, including the gross proceeds of that specified unlawful activity."

On June 2, 2008, the U. S. Supreme Court, in United States v. Santos (No. 06-1005), vacated convictions of the operator of an illegal lottery and one of his runners who had been charged with conducting financial transactions involving the "proceeds" of an illegal gaming business in violation of 18 U.S.C. § 1956. The ruling is that "proceeds," as used in this money laundering statute, means "profits" rather than "gross receipts" of the underlying unlawful activity. The decision combines a plurality opinion interpreting the word "proceeds" in the statute to mean "profits" and a concurring opinion, necessary for a majority ruling, that leaves room for interpreting "proceeds" as "gross receipts" in other circumstances. A strong dissenting opinion emphasized the constraints the ruling will place on prosecutors. The interpretation rests on two principles of statutory construction: the rule of lenity and the merger doctrine. Under the rule of lenity, ambiguities in criminal statutes are construed in favor of the defendant. Application of the merger doctrine avoids the prospect that a defendant would receive two punishments under different statutes for what is essentially a single offense. On February 5, 2009, Senator Leahy introduced S. 386, the Fraud Enforcement and Recovery Act of 2009, which was reported favorably by the Senate Committee on the Judiciary on March 23, 2009, S.Rept. 111-10. On April 28, the bill, as amended, was passed by the Senate. On May 7, an amended version of the bill was passed by the House. It was returned to the Senate, amended, and passed; thereafter, on May 18, it was passed by the House for presentation to the President. The bill includes provisions amending the definition of "proceeds" under the anti-money laundering criminal statutes, 18 U.S.C. § 1956(c)(8) and 1957(c), to specify that the term includes the "gross receipts" of the underlying criminal activity. As passed by the House, the bill also includes a provision addressing the possibility of a merger problem in money laundering prosecutions for predicate offenses closely connected with the elements of the money laundering offense. Other legislation with provisions to cover "gross receipts" includes S. 378 and H.R. 1793. This report will be updated on the basis of major legislative activity.

T he Community Oriented Policing Services (COPS) program was created by Title I of the Violent Crime Control and Law Enforcement Act of 1994 ( P.L. 103-322 , "the 1994 Crime Act"). The mission of the COPS program is to advance community policing in all jurisdictions across the United States. The COPS program awards grants to state, local, and tribal law enforcement agencies to advance the practice of community policing. COPS grants are managed by the COPS Office, which was created in 1994 by Department of Justice (DOJ) to oversee the COPS program. Under the initial authorization for the COPS program, grants could be awarded for (1) hiring new police officers or rehiring police officers who have been laid off to engage in community policing; (2) hiring former members of the armed services to serve as career law enforcement officers engaged in community policing; and (3) supporting non-hiring initiatives, such as training law enforcement officers in crime prevention and community policing techniques or developing technologies that support crime prevention strategies. The 1994 Crime Act authorized funding for the COPS program through FY2000 (see Table A-1 for authorized appropriations). The COPS program was reauthorized by the Violence Against Women and Department of Justice Reauthorization Act of 2005 ( P.L. 109-162 ). The act reauthorized appropriations for the COPS program for FY2006-FY2009 (see Table A-1 ). When Congress reauthorized the COPS program it changed from a multi-grant program to a single grant program under which state or local law enforcement agencies are eligible to apply for a "COPS grant." These grants could be used for a variety of purposes, including hiring or re-hiring community policing officers; procuring equipment, technology, or support systems; or establishing school-based partnerships between local law enforcement agencies and local school systems. From FY1995 to FY1999, the annual appropriation for the COPS program averaged nearly $1.4 billion. The relatively high levels of funding during this time period were largely the result of Congress's and the Clinton Administration's efforts to place 100,000 new law enforcement officers on the street. After the initial push to fund 100,000 new law enforcement officers through COPS grants, Congress moved away from providing funding for hiring law enforcement officers and changed COPS into a conduit for providing federal assistance to support local law enforcement agencies. Starting in FY1998, an increasing portion of the annual appropriation for COPS was dedicated to programs that helped law enforcement agencies purchase new equipment, combat methamphetamine production, upgrade criminal records, and improve their forensic science capabilities. However, the overall appropriations for the COPS program started to decrease as Congress appropriated less funding for hiring law enforcement officers. In the early years of the COPS program, a majority of the program's enacted appropriations went to grant programs specifically aimed at hiring more law enforcement officers. Beginning in FY1998, however, enacted appropriations for the hiring programs began to decline, and by FY2005, appropriations for hiring programs were nearly non-existent. Funding for hiring programs was revived when the American Recovery and Reinvestment Act of 2009 ( P.L. 111-5 ) provided $1 billion for COPS. Appropriations for hiring programs in FY2009-FY2012 were the result of Congress's efforts to help local law enforcement agencies facing budget cuts as a result of the recession either hire new law enforcement officers or retain officers they would otherwise have to lay off. Congress has continued to provide appropriations for hiring programs even as the effects of the recession have waned. There is a notable change in the total amount of funding Congress has provided for COPS since FY2011. From FY2012 to FY2017, Congress has provided approximately $200 million for the COPS account each fiscal year. Prior to FY2012, the least amount of funding Congress provided for COPS was $472 million for FY2006. The change in annual appropriations for COPS can be attributed to two trends: (1) the congressional earmark ban and (2) Congress restructuring the COPS account (see Table A-2 ). Congress implemented a ban on earmarks starting with appropriations for FY2011. This ban substantially decreased funding for the Law Enforcement Technology and the Methamphetamine Clean-up programs. By FY2012, Congress did not appropriate any funding for the Law Enforcement Technology program and the only funding remaining for the Methamphetamine Clean-up program was transferred to the Drug Enforcement Administration to assist with the clean-up of clandestine methamphetamine laboratories. From FY2010 to FY2012, Congress moved appropriations for programs that were traditionally funded under the COPS account—such as Project Safe Neighborhoods, DNA backlog reduction initiatives, Paul Coverdell grants, offender reentry programs, the National Criminal History Improvement program, and the Bulletproof Vest Grant program—to the State and Local Law Enforcement Assistance (S&LLEA) account. As shown in Table A-2 , appropriations for programs that were moved to the S&LLEA account starting in FY2010 were traditionally transferred to the Office of Justice Programs. Since FY2012, Congress has not significantly changed or restructured the programs funded under the COPS account. Authorized funding for the COPS program expired in FY2009. There are several issues policymakers might consider if they take up legislation to reauthorize the COPS program or when considering legislation to provide appropriations for the program. One potential question facing Congress is whether the federal government should continue to provide grants to state and local law enforcement agencies to hire additional officers at a time of historically low crime rates. The Federal Bureau of Investigation reported that the violent crime rate for 2015 was 373 violent crimes per 100,000 people, up from 362 per 100,000 in 2014. However, the violent crime rate increased in 2015, and preliminary data suggests that it increased again in 2016. Even though the violent crime rate increased in 2015, it was still at historic lows. The violent crime rate in 2015 is comparable to the violent crime rate in 1970 (364 per 100,000). The violent crime rate generally increased throughout the 1970s and 1980s, peaking at 758 violent crimes per 100,000 in 1991. The violent crime rate has generally decreased since then. However, since 1991 there were times when the violent crime rate increased for a year or two. Prior to the most recent increase, the violent crime rate increased in both 2005 and 2006, before declining most every year from 2007 to 2014. While violent crime rates continue to remain at historic lows, it is too early to tell if the recent increase in the rate signals the reversal of a long-term declining trend. Recent reports about a growing number of homicides and other violent crime in some cities might raise questions about whether grants to hire more police officers could be a way to assist cities facing crime problems. Proponents of the COPS program assert that COPS hiring grants contributed to the decreasing crime rate in the 1990s. Three studies identified by CRS attempted to quantify the impact that COPS grants had on crime rates from the mid-1990s to 2001. In general, the studies suggest that COPS grants had a negative effect on crime rates, but the effect was not universal. The studies suggest that COPS grants might not have been as effective at reducing crime in cities with populations of more than 250,000 people. Proponents also believe that the federal government has a role to play in supporting local law enforcement because it is the federal government's responsibility to provide for the security of U.S. citizens, which includes protecting citizens from crime. While there might be a desire among some policymakers to assist state and local governments that are facing growing levels of violent crime, opponents of the COPS program stress that state and local governments, not the federal government, should be responsible for providing funding for state and local police forces. They argue that the purported effect of COPS hiring grants on crime rates in the 1990s is questionable. They maintain that it is not prudent to increase funding for the program at a time when crime is relatively low and the federal government is facing annual deficits. Opponents might also argue that the COPS hiring grants are duplicative of other programs, such as the Edward Byrne Memorial Justice Assistance Grant program. As discussed above, when Congress reauthorized the COPS program it was changed to a single-grant program whereby law enforcement agencies can apply for a "COPS grant" that they can use for one or more of several programs outlined in current law. However, Congress has continued to appropriate funding for specific grant programs under the COPS account in the Commerce, Justice, Science and Related Agencies (CJS) appropriations act (see Table A-2 ). Appropriations for the COPS account do not provide law enforcement agencies with the flexibility envisioned in the current authorizing legislation. Instead of being able to apply for one grant to use for one or more programs, law enforcement agencies must apply for funding under several different programs. Law enforcement agencies are also limited to using their grants for the programs specified by Congress in the annual CJS appropriations act. Congress might consider whether in the future it should fund COPS as a single-grant program or if it should continue to appropriate funds for individual programs. If Congress chooses to fund COPS as a single-grant program, it could relieve the administrative burden on local law enforcement agencies because they would apply for and manage only one grant award rather than applying for grants under different programs. However, if Congress chooses to fund COPS as a single-grant program, it would lose some control over how COPS funds are spent, and hence the impact that the grant funding has on shaping state and local policies and practices. A single-grant program would mean that Congress could not ensure that a certain amount of funding was spent on hiring law enforcement officers or used to upgrade law enforcement's use of new technology. In addition, awarding COPS grants under a single-grant program might make it more difficult to monitor the effectiveness of COPS grants because there would most likely be a wide variety of programs for which funds are used.

The Community Oriented Policing Services (COPS) program was created by Title I of the Violent Crime Control and Law Enforcement Act of 1994 (P.L. 103-322). The mission of the COPS program is to advance community policing in jurisdictions across the United States. The Violence Against Women and Department of Justice Reauthorization Act of 2005 (P.L. 109-162) reauthorized the COPS program for FY2006-FY2009 and changed it from a multi-grant program to a single-grant program. Even though the COPS grant program is not currently authorized, Congress has continued to appropriate funding for it. Between FY1995 and FY1999, the annual appropriation for the COPS program averaged nearly $1.4 billion. The relatively high levels of funding during this time period were largely the result of Congress's and the Clinton Administration's efforts to place 100,000 new law enforcement officers on the street. After the initial push to fund 100,000 new law enforcement officers through COPS grants, Congress moved away from providing funding for hiring new law enforcement officers and changed COPS into a conduit for providing federal assistance to support local law enforcement agencies. Decreasing appropriations for hiring programs resulted in decreased funding for the COPS program overall. Appropriations for hiring programs were almost non-existent from FY2005 to FY2008, but for FY2009 Congress provided $1 billion for hiring programs under the American Recovery and Reinvestment Act of 2009 (P.L. 111-5). Appropriations for hiring programs for FY2009-FY2012 were the result of Congress's efforts to help local law enforcement agencies facing budget shortages as a result of the recession either hire new law enforcement officers or retain officers they might have to lay off. Congress has continued to provide appropriations for hiring programs even though the effects of the recession have waned over the past few fiscal years. There are several issues policymakers might consider if they take up legislation to reauthorize or fund the COPS program. One potential policy question is whether the federal government should continue to provide grants to state and local law enforcement agencies to hire additional officers at a time of historically low crime rates. Policymakers might also consider whether Congress should appropriate funding for the COPS program so that law enforcement agencies could take advantage of the current single grant program authorization, or if Congress should continue to appropriate funding for individual programs under the COPS account.

The Fair Labor Standards Act (FLSA) requires the payment of a minimum wage, as well as overtime compensation at a rate of not less than one and one-half times an employee's hourly rate for hours worked in excess of a 40-hour workweek. While the FLSA exempts some employees from these requirements based on their job duties or because they work in specified industries, most employees must be paid in accordance with the statute's requirements for work performed. The increased use of personal data assistants (PDAs) and smartphones by employees outside of a traditional work schedule has raised questions about whether such use may be compensable under the FLSA. As PDAs and smartphones provide employees with mobile access to work email, clients, and co-workers, as well as the ability to create and edit documents outside of the workplace, it may be possible to argue that non-exempt employees who perform work-related activities with these devices should receive overtime if such activities occur beyond the 40-hour workweek. This report reviews the FLSA's overtime provisions and examines some of the U.S. Supreme Court's seminal decisions on work. Although PDAs and smartphones provide a new opportunity to consider what constitutes work for purposes of the FLSA, the Court's past FLSA decisions, including those involving on-call time, may provide guidance on how courts could evaluate overtime claims involving the new devices. Section 7(a)(1) of the FLSA, states, in relevant part, [N]o employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce, or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. The term "employ" is defined by the FLSA to mean "to suffer or permit to work." The term "work," however, is not defined by the statute. In 1944, the Supreme Court sought to clarify the meaning of that term in Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123 , a case involving miners who travelled daily to and from the working face of underground iron ore mines. Muscoda Local No. 123 and two other unions representing the miners maintained that the workers' hours of employment should include the travel time, and that the miners were entitled to overtime compensation because their hours of employment exceeded the statutory maximum workweek. Without a statutory definition for "work," the Court in Tennessee Coal relied on the plain meaning of the term to conclude that the miners' travel time should be construed as work or employment for purposes of the FLSA. The Court noted, "[W]e cannot assume that Congress here was referring to work or employment other than as those words are commonly used—as meaning physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." The Court maintained that the dangerous conditions in the mine shafts provided proof that the journey to and from the working face involved continuous physical and mental exertion. In addition, the miners' travel to and from the working face was not undertaken for the convenience of the miners, but was performed for the benefit of the mining companies and their iron ore mining operations. In Armour v. Wantock , the Court clarified that actual physical or mental exertion was not necessary for an activity to constitute work under the FLSA. In Armour , a group of fire guards who remained on call on the employer's premises contended that they were entitled to overtime compensation for their on-call time. Although the employer attempted to make this time tolerable by providing beds, radios, and cooking equipment, the Court found that the guards were entitled to overtime compensation. The Court observed the following: Of course an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer's property may be treated by the parties as a benefit to the employer. Whether time is spent predominantly for the employer's benefit or for the employee's is a question dependent upon all the circumstances of the case. In Anderson v. Mt. Clemens Pottery , a 1946 case involving workers at a pottery plant and the computation of compensable work time, the Court concluded that time spent walking to a work area on the employer's premises after punching a time clock was compensable. The Court indicated that because the statutory workweek includes all time that an employee is required to be "on the employer's premises, on duty, or at a prescribed workplace," the time spent in these activities must be compensated. Other preliminary activities, such as putting on aprons and preparing equipment, were also found to be compensable because they were performed on the employer's premises, required physical exertion, and were pursued for the employer's benefit. At the same time, however, the Court in Mt. Clemens Pottery recognized "a de minimis rule" for activities that involve only a few seconds or minutes of work beyond an employee's scheduled work hours. The Court explained that "[i]t is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved." Fearing that Mt. Clemens Pottery would subject employers to significant and "wholly unexpected" financial liabilities, Congress passed the Portal-to-Portal Act, which abolished all claims for unpaid minimum wages and overtime compensation related to activities engaged in prior to May 14, 1947. The Portal-to-Portal Act also provided prospectively that an employer would not be subject to liability under the FLSA for failing to pay a minimum wage or overtime compensation for travel to and from the place where an employee's principal activity or activities are performed, or for activities that are "preliminary to or postliminary to [those] principal activity or activities." The Court's recognition of a de minimis rule and the enactment of the Portal-to-Portal Act have been viewed as attempts to limit the broad definition of "work" established in Tennessee Coal . Even after the Portal-to-Portal Act's enactment, however, the Court continued to find certain preparatory and concluding activities to be compensable under the FLSA. In Steiner v. Mitchell , for example, the Court found that the time spent by workers in a battery plant changing clothes at the beginning of a shift and showering at the end of a shift was compensable work time under the FLSA. Citing a colloquy between several senators and one of the sponsors of the Portal-to-Portal Act, the Court maintained that Congress did not intend to deprive employees of the benefits of the FLSA if preliminary or postliminary activities are an integral and indispensible part of the principal activities for which they are employed. In IBP v. Alvarez , the Court further concluded that the time spent walking between a changing area where protective clothing was put on and taken off and a work area was also compensable time under the FLSA. Whether non-exempt workers may be entitled to overtime compensation for work activities performed using a PDA or smartphone beyond a 40-hour workweek will probably depend on the facts of each case. At a minimum, an employee seeking such compensation will likely have to establish that he was engaged in compensable work. The factors articulated by the Court in Tennessee Coal continue to be recognized as a starting point for determining whether an employee's activities constitute work under the FLSA. First, does use of a PDA or smartphone require physical or mental exertion? Second, is the use of a PDA or smarthphone controlled or required by the employer? Finally, is the use of a PDA or smartphone necessarily and primarily for the benefit of the employer and his business? While the facts of each case will ultimately determine whether the Tennessee Coal factors are satisfied, it seems possible that at least some PDA or smartphone use could be viewed as compensable work under the FLSA. Even with the Court's reconsideration in Armour of the need for physical or mental exertion to constitute work, it appears reasonable to conclude that at least some PDA or smartphone use will require mental exertion. An employee responding to work email or reviewing or editing documents is arguably engaged in mental exertion. Further, providing PDAs and smartphones to non-exempt employees without any statement or policy about not using the devices outside of regular work hours may lead to the conclusion that their use is controlled or required by the employer, particularly if supervisors or senior employees send messages or documents with the expectation that they will be immediately read or reviewed. Finally, because employers could benefit from an employee's response to email or his review of a document after regular work hours, it could be argued that the employee's PDA or smartphone use is necessarily or primarily for the benefit of the employer and his business. The absence, however, of any significant case law involving the FLSA and PDA or smartphone use makes it difficult to know exactly how courts will evaluate related claims for overtime compensation. Some believe that cases involving on-call time could be instructive, particularly because they present an analogous situation in which an employee is kept in constant contact with the employer. In Skidmore v. Swift & Co ., one of the Court's early cases involving on-call time and the payment of overtime compensation, the Court indicated that the law does not preclude "waiting time from also being working time." The Court maintained, however, that the availability of overtime pay involves an examination of the agreement between the parties, consideration of the nature of the service provided and its relation to the waiting time, and all of the surrounding circumstances. In reversing a denial of overtime compensation in Skidmore , the Court further explained that whether on-call time should be considered compensable under the FLSA depends upon the degree to which the employee is free to engage in personal activities during periods of idleness when he is subject to call and the number of consecutive hours that the employee is subject to call without being required to perform active work. Hours worked are not limited to the time spent in active labor, but include time given by the employee to the employer. Since the Court's decision in Skidmore , other courts have found on-call time compensable under the FLSA. In Pabst v. Oklahoma Gas & Electric Co ., for example, the U.S. Court of Appeals for the Tenth Circuit determined that a group of electronic technicians who were expected to respond to alarms sent to their pagers and computers were entitled to compensation for their on-call time. Citing Skidmore and Armour , the court focused on the burdens placed on the technicians as a result of their on-call duties, such as diminished sleep habits because of the frequency of the alarms and the employer's required response time. Where the burdens placed on employees as a result of on-call duties are minimal, courts appear more likely to find that on-call time is not compensable under the FLSA. In Owens v. Local No. 169 , for example, the Ninth Circuit concluded that an employer with an ongoing policy of phoning its regular daytime mechanics after hours to return to the workplace to fix equipment was not liable for overtime compensation resulting from the employees' on-call duties. The court maintained that the employer's on-call policy was far less burdensome than other policies that had been successfully challenged. Unlike the technicians in Pabst , the mechanics in Owens were not required to respond to all calls and received an average of only six calls a year. The courts' focus on an employee's ability to engage in personal activities in on-call cases may indeed prove instructive as they begin to consider whether work-related PDA and smartphone use is compensable under the FLSA. Although a court may find that an employee's use of a PDA or smartphone is "work" for purposes of the FLSA, it may conclude that such use is so minimal or unobtrusive that it is not compensable under the FLSA. Such a finding would seem to be consistent not only with the on-call jurisprudence, but also with the de minimis rule articulated by the Court in Mt. Clemens Pottery . At the very least, a court will likely have to evaluate all of the circumstances of an employee's case to determine whether his PDA or smartphone use is compensable. As PDA and smartphone use by employees increases and the expectations of supervisors, co-workers, and clients evolve, it seems likely that courts will be confronted with numerous cases involving overtime compensation based on the work-related use of these devices. At least one case involving the retail sales consultants and assistant store managers of AT&T Mobility is currently being litigated. The non-exempt plaintiffs in Zivali v. AT&T Mobility are seeking overtime compensation for their work outside of their regular work hours. The employees argue that AT&T Mobility required them to carry company-owned smartphones and encouraged them to provide their numbers to customers. They contend that AT&T Mobility fosters a corporate culture in which employees "are expected to perform certain tasks off-duty." In May 2011, a federal district court found that the plaintiffs were not similarly situated for purposes of maintaining a collective action under the FLSA. However, the court also concluded that the evidence suggested that at least some of the plaintiffs might be able to recover uncompensated overtime from AT&T Mobility, and rejected the company's motion for summary judgment. The case is likely to be watched closely by both employers and employees who are required to carry PDAs and smartphones.

The increased use of personal data assistants (PDAs) and smartphones by employees outside of a traditional work schedule has raised questions about whether such use may be compensable under the Fair Labor Standards Act (FLSA). As PDAs and smartphones provide employees with mobile access to work email, clients, and co-workers, as well as the ability to create and edit documents outside of the workplace, it may be possible to argue that employees who are not exempt from the FLSA's requirements and who perform work-related activities with these devices should receive overtime if such activities occur beyond the 40-hour workweek. This report reviews the FLSA's overtime provisions, and examines some of the U.S. Supreme Court's seminal decisions on work. Although PDAs and smartphones provide a new opportunity to consider what constitutes work for purposes of the FLSA, the Court's past FLSA decisions, including those involving on-call time, may provide guidance on how courts could evaluate overtime claims involving the new devices.

With modern technology's ability to gather and retain data, financial services businesses have increasingly found ways to take advantage of their large reservoirs of customer information. Not only can they enhance customer service by tailoring services and communications to customer preferences, but they can benefit from sharing that information with affiliated companies and others willing to pay for customer lists or targeted marketing compilations. Although some consumers are pleased with the wider access to information about available services that information sharing among financial services providers offers, others have raised privacy concerns, particularly with respect to secondary usage. The United States has no general law of financial privacy. The U.S. Constitution, itself, has been held to provide no protection against governmental access to financial information turned over to third parties. United States v. Miller , 425 U.S. 435 (1976). This means that although the Fourth Amendment to the U.S. Constitution requires a search warrant for a law enforcement agent to obtain a person's own copies of financial records, it does not protect the same records when they are held by financial institutions. State constitutions and laws may provide greater protection. At the federal level, the Right to Financial Privacy Act, 12 U.S.C. Sections 3401-3422, provides a measure of privacy protection by setting procedures for federal government access to customer financial records held by financial institutions. There is no general federal regime covering how non-public personal information held in the private sector may be disclosed or must be secured. The major law which deals with this subject with respect to financial companies is Title V of the Gramm-Leach-Bliley Act of 1999 (GLBA; P.L. 106-102 ), which is discussed in a separate section of this report. The Fair Credit Reporting Act (FCRA), 15 U.S.C. Sections 1681 to 1681x, predates GLBA. It establishes standards for collection and permissible purposes for dissemination of data by consumer reporting agencies. It also gives consumers access to their files and the right to correct information therein. Another law, which predates GLBA, is the Electronic Funds Transfer Act, 15 U.S.C. Sections 1693a to 1693r, which describes the rights and liabilities of consumers using electronic funds transfer systems. These rights include the ability of consumers to have financial institutions identify the circumstances under which information concerning their accounts will be disclosed to third parties. With the passage of the Fair Credit Reporting Act Amendments of 1996, P.L. 104-208 , Div. A, Tit. II, Subtitle d, Ch. 1, Section 2419, 110 Stat. 3009-452, adding 15 U.S.C. Section 1681t(b)(2), companies may share with other entities certain customer information respecting transactions and experience with a customer without any notification requirements. Other customer information, such as credit report or application information, may be shared with other companies in the corporate family if the customers are given "clear and conspicuous" notice about the sharing and an opportunity to direct that the information not be shared; that is, an "opt out." Under Section 214 of P.L. 108-159 , 117 Stat. 1952, the Fair and Accurate Credit Transactions Act of 2003 (FACT Act), subject to certain exceptions, affiliated companies may not share customer information for marketing solicitations unless the consumer is provided clear and conspicuous notification that the information may be exchanged for such purposes and an opportunity and a simple method to opt out. Among the exceptions are solicitations based on preexisting business relationships; based on current employer's employee benefit plan; in response to a consumer's request or authorization; and as required by state unfair discrimination in insurance laws. The 2003 amendments also require the agencies to conduct regular joint studies of information sharing practices of affiliated companies and make reports to Congress every three years. Title V of GLBA ( P.L. 106-102 ) contains the privacy provisions enacted in conjunction with 1999 financial modernization legislation. These privacy provisions preempt state law except to the extent that the state law provides greater protection to consumers. The Consumer Financial Protection Act of 2010, Title X of P.L. 111-203 , the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank), makes the newly created Consumer Financial Protection Bureau (CFPB), which is located within the Federal Reserve System, the major rulemaking and enforcement authority for federal consumer protection laws, including the GLBA privacy provisions. As originally enacted, GLBA allocated rulemaking and enforcement authority to an array of federal and state financial regulators. GLBA requires that federal regulators issue rules that call for financial institutions to establish standards to insure the security and confidentiality of customer records. It prohibits financial institutions from disclosing nonpublic personal information to unaffiliated third parties without providing customers the opportunity to decline to have such information disclosed. Also included are prohibitions on disclosing customer account numbers to unaffiliated third parties for use in telemarketing, direct mail marketing, or other marketing through electronic mail. Under this legislation, financial institutions are required to disclose, initially when a customer relationship is established and annually, thereafter, their privacy policies, including their policies with respect to sharing information with affiliates and non-affiliated third parties. Under Section 503(c) of GLBA, as added by Section 728 of the Financial Services Regulatory Relief Act of 2006, P.L. 109-351 , the federal functional regulators were required to propose model forms for GLBA privacy notices. On March 29, 2007, the agencies issued a notice proposing a model form. They subsequently published final amendments to their regulations incorporating a model privacy form which financial institutions may use to disclose their privacy policies. Initially, regulations implementing GLBA's privacy requirements were the product of joint rulemaking and were found in various sections of the Code of Federal Regulations . They became effective on November 13, 2000. Identity theft and pretext calling guidelines were issued to banks on April 6, 2001. Insurance industry compliance has been handled on a state-by-state basis by the appropriate state authority. The National Association of Insurance Commissioners (NAIC) approved a model law respecting disclosure of consumer financial and health information intended to guide state legislative efforts in the area. The establishment of the CFPB as authorized by Dodd-Frank has meant the transfer from the other federal agencies of much of the rulemaking authority for GLBA's privacy provisions. The CFPB promulgated an interim final rule. One of the indications of the public's interest in preserving the confidentiality of personal information conveyed to financial service providers was the negative reaction to what became an aborted attempt by the federal banking regulators to promulgate "Know Your Customer" rules. These rules would have imposed precisely detailed requirements on banks and other financial institutions to establish profiles of expected financial activity and monitor their customers' transactions against these profiles. Even before the "Know Your Customer" Rules and enactment of GLBA, depository institutions and their regulators had been increasingly promoting industry self-regulation to instill consumer confidence and forestall comprehensive privacy regulation by state and federal governments. One of the federal banking regulators, the Office of Comptroller of the Currency, for example, issued an advisory letter regarding information sharing. To some participants in the financial services industry, preemptive federal legislation is preferable to having to meet differing privacy standards in every state. With respect to information sharing among affiliated companies, FCRA, as amended by the FACT Act, does not entirely preempt state law; its preemption runs only to the extent of affiliate sharing of consumer report information. GLBA also leaves room for more protective state laws. Another incentive for a nationwide standard has been the requirements imposed upon companies doing business in Europe under the European Commission on Data Protection (EU Data Directive), an official act of the European Parliament and Council, dated October 24, 1995 (95/46/EC). This imposes strict privacy guidelines respecting the sharing of customer information and barring transfers, even within the same corporate family, outside of Europe, unless the transfer is to a country having privacy laws affording similar protection as does Europe. Revision of European Union data protection law may be on the near horizon. In January 2012, the European Commission released a draft legislative proposal for consideration by the European Parliament and the Council of the European Union. It is aimed at updating the legal protection the European Union affords to personal data in view of challenges accompanying advances in technology and arising in the increasing pervasiveness of online environments. U.S. companies operating in Europe are likely to be monitoring the progress of any changes to the European data protection regime. The U.S. Chamber Institute for Legal Reform (Institute) is already on record as having "deep concerns" about one aspect of the Commission's Draft Regulation, its authorization of third parties to bring litigation to seek remedies and damages to protect the rights of others. To the Institute, this is analogous to what it deems to be the faults of class action lawsuits in the United States, encouraging plaintiff's attorneys to initiate and promote costly and abusive litigation that does not serve the ends of justice. On July 21, 2011, the CFPB began operations, assuming, among other things, authority to issue regulations and take enforcement actions under enumerated federal consumer protection laws, including both FCRA and GLBA. The CFPB has primary enforcement authority over non-depository institutions (subject to certain exceptions) and over depository institutions with more than $10 billion in assets. Although depository institutions with assets of $10 billion or less are now subject to the CFPB's rules, enforcement remains with the "prudential regulators," subject to certain prerogatives of the CFPB. Given the CFPB's predominant role in implementing the GLBA privacy regime and increasing attention to the problem of Internet data security, Congress is likely to scrutinize how the CFPB implements such programs by (1) identifying any problems arising in the transfer of regulatory power from the financial institution prudential regulators and the FTC to the CFPB; (2) monitoring the CFPB's rulemaking efforts to determine whether any newly issued rules unreasonably increase the regulatory burden on struggling institutions; (3) evaluating any effect on financial institutions operating nationwide stemming from application of non-preempted state laws; and (4) examining issues that may arise in connection with the increasing use by banks of social media both to communicate with customers and for marketing purposes. Recently, the CFPB announced that it was proposing to amend Regulation P, Privacy of Consumer Financial Information, to permit financial institutions to satisfy GLBA's annual privacy notice requirement in situations in which customers would not need the notice to avail themselves of an opt-out right. Under the proposal, financial institutions could satisfy the requirement for an annual notice without a separate mailing. They would be required to post the notice separately and continuously on a website page and to include it, at least once a year, in other communications with customers. Moreover, the proposal would require covered businesses choosing not to send annual privacy notices to use a model privacy disclosure form and to provide a dedicated telephone number for customers to call to request mailed copies of the privacy policy. The 113 th Congress has two bills that would eliminate GLBA's requirement for an annual privacy notice under certain circumstances. H.R. 749 would eliminate the annual notice requirements for financial institutions if their privacy policies have not changed from their last disclosure notice and they share nonpublic personal information only pursuant to certain permissible exceptions to GLBA's prohibitions. S. 635 would eliminate the annual notice requirements for financial institutions if their privacy policies have not changed from their last disclosure notice and they share nonpublic personal information only pursuant to certain permissible exceptions to GLBA's prohibitions and otherwise provide customers access to their most recent disclosure in electronic or other form. Other bills, H.R. 3990 , S. 1193 , S. 1897 , and S. 1995 , would require commercial concerns to secure personal information and to provide notification of data breaches. Exemptions are provided for financial institutions covered by the GLBA privacy provisions.

One of the functions transferred to the Consumer Financial Protection Bureau (CFPB) under P.L. 111-203, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), is authority to issue regulations and take enforcement actions under the two major federal statutes that specify conditions under which customer financial information may be shared by financial institutions: Title V of the Gramm-Leach-Bliley Act of 1999 (GLBA, P.L. 106-102) and the Fair Credit Reporting Act (FCRA). Possible topics for congressional oversight in the 113th Congress include (1) the transition of power from the financial institution prudential regulators and the Federal Trade Commission to the CFPB; (2) CFPB's interaction with other federal regulators and coordination with state enforcement efforts; and (3) the CFPB's success at issuing rules that adequately protect consumers without unreasonably increasing the regulatory burden on financial institutions. GLBA prohibits financial institutions from sharing nonpublic personally identifiable customer information with non-affiliated third parties without providing customers an opportunity to opt out and mandates various privacy policy notices. It requires financial institutions to safeguard the security and confidentiality of customer information. FCRA regulates the credit reporting industry by prescribing standards that address information collected by businesses that provide data used to determine eligibility of consumers for credit, insurance, or employment and limits purposes for which such information may be disseminated. One of its provisions, which became permanent with the enactment of P.L. 108-159, permits affiliated companies to share non-public personal information with one another provided the customer does not choose to opt out. The creation of CFPB alters the regulatory landscape for these laws. It has primary enforcement authority over non-depository institutions (subject to certain exceptions) and over depository institutions with more than $10 billion in assets. For depository institutions with assets of $10 billion or less, the CFPB's rules apply but enforcement authority remains with the banking regulators, subject to certain prerogatives of the CFPB. In the first session of the 113th Congress, the House passed H.R. 749, which would eliminate the GLBA requirement for an annual privacy notice if the financial institution has not changed its policies and practice with respect to sharing nonpublic personal information since its last disclosure. A similar bill, S. 635, would require that any financial institution eliminating its annual privacy notice must provide electronic access to its privacy policies. Several bills that require data breach notifications, H.R. 3990, S. 1193, S. 1897, and S. 1995, provide exemptions for financial institutions covered by the GLBA privacy provisions. For further information, see CRS Report R41338, The Dodd-Frank Wall Street Reform and Consumer Protection Act: Title X, The Consumer Financial Protection Bureau, by [author name scrubbed]; and CRS Report RL31666, Fair Credit Reporting Act: Rights and Responsibilities, by [author name scrubbed].

In the more than 15 years since gaining independence, Estonia's political scene has been characterized by the creation and dissolution of numerous parties and shifting alliances among them. This has often resulted in politics resembling a game of "musical chairs." Estonian governments have lasted on average only slightly longer than a year each. Nevertheless, due to a wide-ranging policy consensus, Estonia has followed a remarkably consistent general course—building a democracy, a free-market economy, and integrating into NATO and the European Union (EU). Estonia's current government, formed after March 2007 parliamentary elections, is led by Prime Minister Andrus Ansip of the center-right Reform Party. His coalition partners are the conservative and nationalist Pro Patria-Res Publica Union and the center-left Social Democratic Party. The government's priorities include cutting taxes, reducing business and labor regulation, and increasing spending on child care and education. In September 2006, Toomas Hendrik Ilves was chosen as Estonia's President by an electoral college composed of members of the Estonian parliament and local government representatives. The result was a blow to the left-of-center Center Party and People's Union, which had aggressively campaigned for the re-election of incumbent Arnold Ruutel. Ilves was born in the United States. After Estonia regained its independence in 1991, he moved to Estonia, and later served as Ambassador to the United States and Foreign Minister. In these posts he became known as an outspoken defender of Estonia's interests, especially against Russian encroachment. The post of President is largely ceremonial, but it plays a role in defining Estonia's international image, as well as in expressing the country's values and national unity. Estonia has one of the most dynamic economies in central Europe, and indeed in Europe as a whole. Its real Gross Domestic Product (GDP) grew by 11.4% in 2006 and 9.9% in the first quarter of 2007. Due to its use of a currency board that strictly ties Estonia's kroon to the euro, Estonia has pursued a stringent monetary policy. However, inflation remains significant, at a 5.5% rate in April 2007, on a year-on-year basis, a result of increasing energy prices and rapid wage growth. Unemployment in April 2007 was estimated at 5.3%, one of the lowest rates in the EU. The country is on target for a budget surplus of 1.9% of GDP in 2007, due in part to prudent fiscal policies and rising revenues fostered by economic growth. Estonia has a flat income tax rate of 22%. The new government has pledged to cut the tax rate by 1% per year until it reaches 18% in 2011. President Bush praised Estonia's tax system during a visit to the country in November 2006. According to the State Department, Estonia's "excellent" business climate, along with its sound economic policies, have ensured strong inflows of foreign direct investment (FDI). Estonia was ranked 12 th in the world in the 2007 Wall Street Journal/Heritage Foundation Index of Economic Freedom. The survey praised the country for the fairness and transparency of its business regulations and foreign investment codes, and the independence of its judiciary in enforcing property rights. Corruption remains a problem in Estonia, but significantly less so than in other countries in the region. Total FDI inflows to Estonia in 2004 were $850 million, a large amount for a very small country. Companies owned in whole or part by foreigners account for one-third of the country's GDP and over half of its exports. The country has a modern banking system, largely controlled by banks from the Nordic countries. It has developed an innovative technology sector. Estonians played a key role in developing software for the popular Skype Internet phone. Prime Minister Ansip gave President Bush a Skype phone during his visit to Estonia in November 2006. Estonia achieved its two key foreign policy objectives when it joined NATO and the European Union in 2004. Estonia continues to try to bring its armed forces up to NATO standards, and has maintained defense spending at over 2% of GDP. Estonia was perhaps the best prepared of the candidate states in central and eastern Europe to join the EU, due to its successful economic reforms. However, Estonia still lags behind most EU members in many areas, and receives substantial EU funding to address such issues as border security, public infrastructure, and the environment. Estonia has had to put off plans to adopt the euro as its currency until 2011, due to an inflation rate above the EU's strict criteria for euro zone membership. Estonia enjoys a close relationship with its Baltic neighbors and the Nordic countries. It has acted as an advocate for democratic and pro-Western forces in Belarus, Ukraine, Moldova, Georgia, and other countries bordering Russia. Estonia's relations with Russia remain difficult. Russia claims that Estonia violates the human rights of its Russian-speaking minority, which makes up about 30% of the country's population. While international organizations have generally rejected these charges, many Russian-speakers remain poorly integrated into Estonian society, despite Estonian government efforts to deal with the problem. Some 130,000 Russian-speakers in Estonia are stateless, about 10% of the population. Over 100,000 more have adopted Russian citizenship. They are denied Estonian citizenship by Estonian law because they or their ancestors were not Estonian citizens before the Soviet takeover of Estonia in 1940 and they have not successfully completed naturalization procedures, which require a basic knowledge of the Estonian language. As a result, a significant portion of Estonia's population cannot vote in national elections and lack some other rights and opportunities accorded to citizens. In addition, at least part of the Russian-speaking population suffers from higher unemployment and lower living standards than ethnic Estonians do, due to a variety of factors, including inability to speak Estonian, which is required by Estonian law for many jobs. Russia has also expressed irritation at NATO's role in patrolling the airspace of Estonia and the other two Baltic states, and Estonia's failure to join the Conventional Forces in Europe (CFE) treaty. The role of Estonia in the transit of Russian oil through its ports, once key to Estonia's economy, may be reduced by the decision by the Russian government-controlled Transneft oil transit company to expand the use of its own port facilities at Primorsk in Russia. Estonia is heavily dependent on Russia for oil and natural gas supplies. Estonia and other states in Central Europe have expressed concern about the Nord Stream natural gas pipeline which, when completed, will link Germany directly with Russia via the Baltic Sea floor. In addition to environmental concerns, they fear Russia will gain additional political and economic leverage over the region once Russia has an alternative to key energy infrastructure that runs through their territories. Russo-Estonian relations deteriorated sharply in April 2007, when Estonia moved "the Bronze Soldier," a World War II-era statue of a Soviet soldier from a park in the capital, Tallinn, to another location, along with the bodies of Red Army soldiers buried nearby. The move provoked a furious reaction among some ethnic Russians in Estonia, and from Russian government leaders, who viewed the action as dishonoring Red Army soldiers who liberated Estonia from the Nazis. For their part, many Estonians see the "liberation" as the exchange of Nazi domination for a Soviet one, and not worthy of prominent commemoration. In addition to harsh verbal attacks from Moscow, harassment of Estonia's ambassador to Moscow by youth groups with close ties to the Kremlin, and violent demonstrations by hundreds of ethnic Russians in Estonia, Estonia's Internet infrastructure came under heavy attack from hackers in late April and early May. Estonian officials said some assaults came from Russian government web servers, although many others came from all over the world. These cyberattacks were particularly damaging to Estonia, which has integrated the Internet into public life perhaps more than almost any country in the world. Estonia has asked for Russia's cooperation in investigating the origin of the cyberattacks. The Russian government has denied involvement in the attacks. At the invitation of the Estonian government, NATO cyber experts visited Estonia in the wake of the attacks to assess their scope and discuss with their Estonian counterparts how to deal with possible future attacks. Estonian officials have called for greater cooperation in the EU and NATO to find practical ways of combating cyberattacks. They note that the EU and NATO have yet to define what constitutes a cyberattack and what the responsibilities of member states are in such cases. Russia also appears to have imposed unannounced economic sanctions on Estonia; Estonian railway officials reported a sharp drop in freight traffic from Russia, and Russia limited traffic over a key highway bridge between the two countries. Russia attributed these actions to repair work and safety concerns. Observers have noted that these actions fit a pattern in Russian foreign policy toward neighboring countries of interrupting energy, transportation, and other links under various pretexts to punish these countries for perceived anti-Russian behavior. U.S. officials have expressed concern about Russia's statements and actions surrounding the statue's relocation. On June 14, Assistant Secretary of State Daniel Fried said that" threats, attacks, [and] sanctions, should have no place" in Russo-Baltic relations and that warned that the Baltic states "will never be left alone again, whether threatened by old, new, or virtual threats..." The United States and Estonia enjoy excellent relations. The United States played a key role in advocating NATO membership for Estonia and the other two Baltic states, against the initial resistance of some European countries, which feared offending Russia. U.S. officials have lauded Estonia's support in the U.S.-led war on terrorism, including its deployments in Afghanistan and Iraq. Estonia has deployed 105 soldiers to Afghanistan, as part of the International Security Assistance Force, a significant force for a small country. Two Estonian soldiers were killed there in June 2007. There are 40 Estonian soldiers deployed in Iraq. Two Estonian soldiers have died in Iraq. Estonia also contributes troops to EU and NATO-led peacekeeping missions in Bosnia and Kosovo. In November 2006, President Bush visited Estonia. He praised Estonia as a "strong friend and ally of the United States" and expressed appreciation for Estonia's contributions in Afghanistan, Iraq, and in training young pro-democracy leaders in Georgia, Moldova, and Ukraine. Addressing perhaps the most difficult issue in U.S.-Estonian relations, he pledged to work with Congress to extend the U.S. Visa Waiver program to Estonia and other countries in Central and Eastern Europe. The program, in which 27 countries (mainly from western Europe) participate, allows persons to visit the United States for business or tourism for up to 90 days without a visa. In order to join the program, a country must have a visa refusal rate of no more than 3% a year, and must also have or plan to have tamper-resistant, machine-readable passport and visa documents. Estonia does not currently meet these standards, although it is attempting to do so. Some believe that Estonians should enjoy visa-free travel to the U.S., in part due to their country's status as an EU member and to their troop contributions in Iraq and Afghanistan. After a meeting in Washington, DC with President Ilves on June 25, 2007, President Bush said that Ilves had "pushed him very hard" on the visa waiver issue. President Bush added that he would continue to seek Congressional action on extending the Visa Waiver program to Estonia. President Bush said that the two leaders had also discussed the cyberattacks on Estonia and that Ilves had suggested that a NATO "center of excellence" be based in Estonia to study cybersecurity issues. Estonia "graduated" from U.S. economic assistance after FY1996, due to its success in economic reform, but the United States continues to provide other aid to Estonia. In FY2006, Estonia received $5.8 million in U.S. aid, mainly in Foreign Military Financing (FMF) and IMET military education and training funds to improve Estonia's interoperability with U.S. and other NATO forces in peacekeeping and other missions. The Administration requested $4.1 million for the same purposes for FY2008.

After restoration of its independence in 1991, following decades of Soviet rule, Estonia made rapid strides toward establishing a democratic political system and a dynamic, free market economy. It achieved two key foreign policy goals when it joined NATO and the European Union in 2004. However, relations with Russia remain difficult. Estonia suffered cyberattacks against its Internet infrastructure in April and May 2007 during a controversy about the removal of a Soviet-era statue in Estonia. Estonian leaders believe the cyberattacks may have been instigated by Moscow. Estonia and the United States have excellent relations. Estonia has deployed troops to Iraq and Afghanistan, and plays a significant role in efforts to encourage democracy and a pro-Western orientation among post-Soviet countries. This report will be updated as needed.

On December 19, 2003, Libya announced it would dismantle its weapons of mass destruction (WMD) programs and open the country to immediate and comprehensive verification inspections. Libya pledged to eliminate its chemical and nuclear weapons programs, subject to International Atomic Energy Agency (IAEA) verification; eliminate ballistic missiles with a 300 km range or greater and a payload of 500 kilograms; accept international inspections to fulfill Nuclear Nonproliferation Treaty (NPT) obligations; and sign the Additional Protocol. Further, Libya would eliminate all chemical weapons stocks and munitions and accede to the Chemical Weapons Convention (CWC); and allow immediate inspections and monitoring to verify these actions. Since December 2003, Libya has also agreed to abide by the Missile Technology Control Regime (MTCR) guidelines, and signed the Comprehensive Test Ban Treaty. Libya's decision likely rested on several factors. The burden of 30 years of economic sanctions had significantly limited oil exports and stagnated the Libyan economy, making the prospect of renewed international investment that would follow a renunciation of WMD very attractive. Further, Libya's elimination of its WMD programs was a necessary condition for normalizing relations with the United States. The Administration has attributed Libya's decision to abandon its WMD to President Bush's national security strategy. Some officials claim that Iraq's example convinced Libya to renounce WMD; others point specifically to the interdiction of centrifuge parts (used for uranium enrichment) in October 2003. Still other observers have suggested that Libya's WMD programs were not very successful, while ending Libya's pariah status became particularly important to Colonel Qadhafi. At least two accounts record Libyan offers to renounce its WMD programs dating back to 1992 and 1999. Despite Libya's membership in the NPT (from 1975) and the Biological and Toxin Weapons Convention, or BWC, (from 1982), most observers believed Libya was pursuing a range of WMD programs, albeit not entirely successfully. The Bush Administration noted in 2003 that "we have long been concerned about Libya's longstanding efforts to pursue nuclear, chemical and biological weapons and ballistic missiles." Libya continues to deny any BW program, but its chemical weapons capability (including use of CW against Chad in the 1980s and facilities at Rabta and Tarhuna) was well known. Libya's ballistic missile arsenal was comprised of Scud Bs (300-km, 700 kg payload) acquired from the former Soviet Union, a handful of North Korean Scud-Cs (600-km, 700 kg payload), and a 500-700km-range missile under development, called Al Fatah. The Al Fatah program reportedly continued throughout the 1990s, although hampered by international sanctions. Israeli intelligence claimed also that Libya had received 1300-km-range No Dong missiles from North Korea, but U.S. intelligence disputed this notion. A 2001 National Intelligence Council assessment stated that "Libya's missile program depends on foreign support, without which the program eventually would grind to a halt." Libya signed the International Code of Conduct Against Ballistic Missile Proliferation (ICOC) in November 2002. According to many reports, Libyan officials approached British officials in March 2003 with an offer to give up their WMD programs. After several months of secret negotiations, U.S. and British officials first inspected Libyan weapon sites, laboratories, and military factories in October 2003. This coincided with the interdiction in the Italian port of Taranto of a shipment of uranium enrichment centrifuge equipment ultimately bound for Libya. Initial visits revealed more extensive Libyan nuclear activities than previously thought, and significant quantities of chemical agent. Thus far, U.S. and British officials apparently have found no evidence of an offensive biological weapons program. Some observers have suggested that each of Libya's programs suffered from shortages of parts and technical expertise as a result of years of sanctions. Libya has provided significant information about its nuclear, chemical, and missile programs, including data on foreign suppliers. In fact, Libya's revelations about Pakistani scientist A.Q. Khan's nuclear black market dealings have aided IAEA inspections of Iran's nuclear program and helped prompt Pakistan to investigate Khan. Many observers over the years discounted Libya's nuclear weapons program because of its failure to procure key components and lack of indigenous resources and expertise. Yet, Libya's declarations revealed that A.Q. Khan seemed to have solved the procurement problem, if not the problem of expertise. In 1997, Libya acquired 20 pre-assembled P-1 centrifuges and the components for another 200. Libya constructed three different enrichment cascades, but only the smallest (using 9 centrifuges) was completely installed by 2002. In 2000, Libya received 2 centrifuges of a more advanced design (P-2 using maraging steel) and placed an order for 10,000 of those. Assistance on centrifuge enrichment reportedly came from A.Q. Khan, former head of Pakistan's enrichment facility. Khan reportedly also provided Libya with an actual nuclear weapons design, which was handed over to IAEA inspectors in December 2003 and sealed on-site. According to one source, the design closely resembles a 1960s-vintage Chinese nuclear warhead. One report suggested that such a warhead would not fit on Libya's SCUD-C missiles and that key parts of the weapons design were missing. Libya also dabbled in separating minute quantities of plutonium between 1984 and 1990. Libya declared to the Organization for the Prohibition of Chemical Weapons (OPCW) on March 5, 2004 that it had produced approximately 23 tons of mustard agent in one chemical weapons production facility (Rabta) between 1980 and 1990 and stored those materials in two storage sites. Libya also declared thousands of unfilled munitions. Libya pledged to eliminate all ballistic missiles with a range of 300 kilometers and a payload of 500 kilograms or greater. In early 2004, Libya relinquished 5 North Korean Scud-C missiles, which U.S. officials described as an "emerging" Scud-C program. Libya hoped to convert its Scud-B arsenal, estimated at between 80 and a few hundred, into shorter-range, defensive purpose missiles and end military trade with North Korea. According to one source, in February 2005, Libya asked the United States to buy 417 Scuds for $2 million each; the United States reportedly bought ten for testing. There is no further information on the status of the Al Fatah program. Libya's missile pledge will leave Libya primarily with shorter-range cruise missiles—SS-N-2c Styx, Otomat Mk2, and Exocet anti-ship cruise missiles. The United States eliminated the most sensitive aspects of Libya's WMD and missile programs first. On January 22, 2004, nuclear weapons design information was sent to the United States and days later, U.S. officials airlifted about 55,000 pounds of documents and components from Libya's nuclear and ballistic missile programs to Oak Ridge, Tennessee. Nuclear components included several containers of uranium hexafluoride (used as feedstock for enrichment); 2 P-2 centrifuges from Pakistan's Khan Research Laboratories and additional centrifuge parts, equipment, and documentation. Beginning in December 2003, IAEA inspectors visited Libya to confirm its declarations. Since then, the IAEA has had unlimited access to requested locations and has verified the consistency of Libya's declarations concerning its uranium conversion program, enrichment program, and other past nuclear-related activities. Libya has applied the Additional Protocol, which it ratified on August 8, 2006, on an interim basis since December 2003. In March 2004, over 1,000 tons of additional centrifuge parts and MTCR-class missile parts reportedly were shipped from Libya, including five Scud-C missiles, partial missiles, missile launchers, and related equipment. Russia also removed 17 kg of fresh, 80% highly enriched uranium it had supplied in the 1980s to the 10-megawatt research reactor at Tajura, which the United States plans to help convert to use low-enriched uranium fuel. Libya continues the dismantlement of its chemical weapons program and has requested formal assistance from the United States for the destruction of its remaining chemical weapons stockpile. The OPCW visited Libya first in February 2004, after Libya acceded to the CWC. The OPCW has supervised the on-site destruction of more than 3,500 unfilled shells for CW. Destroying the mustard agent, however, is a bit more complicated, and will require a destruction plan and a special facility for destruction. In June 2006, Defense Threat Reduction Agency Director James Tegnelia estimated the cost of destruction at $100 million, given the location of the chemicals in a remote desert area. Libya requested and received an extension of the CWC requirement to destroy all its chemical weapons and production capacity by April 29, 2007. Libya also received permission from the OPCW to convert the Rabta facility to produce pharmaceuticals. In September 2004, Libya, the United States, and the UK established the Trilateral Steering and Cooperation Committee (TSCC) to oversee the final stages of elimination of Libya's WMD and MTCR-class missile programs and to promote cooperation. Libya had been subject to one of the strictest U.S. sanctions regimes as a result of its support of international terrorism. Libya's cooperation in several areas has allowed sanctions to be lifted. In September 20, 2004, President Bush made three determinations about Libya that would allow lifting certain sanctions pursuant to the Arms Export Control Act (AECA) and the Export-Import Bank Act of 1945. First, he determined: that Libya received nuclear enrichment equipment, material or technology after August 1977; that the continued termination of assistance under Section 101 of the AECA would have a serious adverse effect on vital U.S. interests; and that he has received reliable assurances that Libya will not acquire or develop nuclear weapons or assist other nations in doing so. Second, he determined that Libya sought and received design information intended for use in the development or manufacture of a nuclear explosive devices, and that the application of sanctions would have a serious adverse effect on vital U.S. interests, pursuant to Section 102 (b) of the AECA. Third, he determined that, pursuant to Section 2 (b) (4) of the Export-Import Bank Act of 1945, it is in the national interest for the Export Import Bank to guarantee, insure, or extend credit, or participate in the extension of credit in support of U.S. exports to Libya. President Bush also rescinded the national emergency with respect to Libya and lifted trade, travel, and commercial restrictions. Further measures included releasing $1.3 billion in frozen assets, providing OPIC guarantees, and removing restrictions on direct flights between Libya and the United States. Libya was finally removed from the list of state sponsors of terrorism on June 29, 2006. Prior to Libya's removal from the list of state sponsors of terrorism, U.S. assistance in WMD dismantlement was limited to funding provided by the State Department's Nonproliferation and Disarmament Fund (NDF), because such funds are not restricted by limits imposed by other laws. Since 2004, NDF has committed about $34.2 million to the WMD disarmament process in Libya, including funds for: removal of equipment and material ($5 million); retraining of former WMD scientists and personnel ($2.5 million); export control assistance ($1 million); securing radiological sources ($ .7 million); and destroying chemical weapons and agents ($25 million). State Department officials estimate that about $20 million more will be required to help Libya destroy the rest of its chemical stockpile. Senator Lugar has stated that the NDF "does not have the size, scope, or experience to do dismantlement operations, to employ nuclear scientists, or undertake longer term nonproliferation efforts." One possibility is to use Cooperative Threat Reduction (CTR) funds for these activities, which became theoretically possible with the expansion of the application of CTR funds since FY2004, but which was impossible in a practical sense before July 2006 because of Libya's status as a state sponsor of terrorism. CTR funds may also contain more restrictions than NDF funds, particularly in contractual requirements. Congress may wish to consider whether to provide additional assistance to Libyan disarmament, and if so, how.

On December 19, 2003, Libya announced it would dismantle its weapons of mass destruction (WMD) and ballistic missile programs. Since then, U.S., British, and international officials have inspected and removed or destroyed key components of those programs, and Libya has provided valuable information, particularly about foreign suppliers. Libya's WMD disarmament has been a critical step towards reintegration into the world community. This report will be updated as needed. See CRS Report RL33142, Libya: Background and U.S. Relations , by [author name scrubbed].

In June 2006, the Supreme Court issued its decision in Burlington Northern and Santa Fe Railway Co. v. White , a case that involved questions about the scope of the retaliation provision under Title VII of the Civil Rights Act, which prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. In a 9-0 decision with one justice concurring, the Court held that the statute's retaliation provision encompasses any employer action that "would have been materially adverse to a reasonable employee or job applicant." This standard, which is much broader than a standard that would have confined the retaliation provision to actions that affect only the terms and conditions of employment, generally makes it easier to sue employers if they retaliate against workers who complain about discrimination. Under the Court's interpretation, employees must establish only that the employer's actions might dissuade a worker from making a charge of discrimination. This means that an employee may successfully sue an employer for retaliation even if the employer's action does not actually result in an adverse employment action, such as being fired or losing wages. In 1997, Sheila White, the only woman working in her department at one of Burlington Northern's train yards, complained to company officials that her supervisor had repeatedly made sexist comments on the job. Although her supervisor was ordered to attend a sexual harassment training session, White was simultaneously reassigned to a less desirable job and later was suspended without pay. The company eventually reinstated White to her original position and awarded her backpay, but White sued, claiming that both the reassignment and suspension without pay constituted unlawful retaliation in violation of Title VII. At trial, a jury agreed with White's claims and awarded her compensatory damages. Initially, a panel of the Court of Appeals for the Sixth Circuit reversed the judgment, but the full court, sitting en banc, vacated the panel's decision. Although the Sixth Circuit ultimately upheld White's retaliation claims, the court, like other federal appellate courts to consider Title VII retaliation claims, differed over the standard to apply to such claims, and the Supreme Court granted review to settle this question. Under Title VII, it is unlawful for an employer to, among other things, "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." In other words, Title VII's anti-discrimination provision protects an employee only from discrimination that is employment-related. In contrast, Title VII's retaliation provision prohibits an employer from discriminating against any employee or job applicant "because he has opposed any practice made an unlawful employment practice ... or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII. Since the enforcement of Title VII relies in part on the willingness of employees to report discrimination, this provision appears designed to prevent employers from undermining the anti-discrimination purpose at the heart of Title VII. These differences in statutory language led to disagreements among a number of courts about whether a retaliation claim, like a discrimination claim, must be based on an employment-related action, as well as about how harmful an employment action must be to constitute retaliation. For example, some appellate courts have required a close relationship between the retaliatory action and employment by applying the same standard to retaliation claims that they apply to discrimination claims, namely that the employer's action must have an adverse effect on the terms and conditions of employment. Other courts have applied an even stricter standard that recognizes retaliation only when an employer's conduct relates to significant employment-related actions such as hiring, firing, or compensation. In contrast, other circuit courts have taken a more expansive view that applies a different standard to retaliation claims than is applied to regular discrimination charges. For example, several courts have required simply that employees demonstrate that the challenged action would have dissuaded a reasonable employee from making a complaint of discrimination. The Supreme Court granted review to resolve this dispute among the lower courts. Ultimately, the Supreme Court agreed with lower courts that had taken a more expansive view of the application of the retaliation provision, holding that the provision encompasses "employer actions that would have been materially adverse to a reasonable employee or job applicant." The Court relied on both the language and the purpose of the statute to reach this result. In analyzing the statutory language, the Court noted that the language of Title VII's anti-discrimination provision differs from the language of the retaliation provision "in important ways." Under the anti-discrimination provision, the statutory language limits the scope of the provision to actions that affect the terms and conditions of employment, but "[n]o such limiting words appear in the anti-retaliation provision." As the Court noted, "We normally presume that, where words differ as they differ here, 'Congress acts intentionally and purposely in the disparate inclusion or exclusion.'" Additionally, the Court examined the purposes behind the anti-discrimination and retaliation provisions. According to the Court, the anti-discrimination provision reflects the primary purpose of Title VII, which is to prevent discrimination against certain individuals. The retaliation provision, on the other hand, is designed to ensure that the statute's primary purpose is carried out by preventing an employer from retaliating against employees who report discrimination. Relying on this difference in purpose, the Court reasoned that Congress did not need to prohibit anything more that employment-related conduct in order to achieve the statute's primary purpose of preventing discrimination. However, the Court noted that "[a]n employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace." As examples, the Court cited a case in which the FBI retaliated against an employee by refusing to investigate death threats made against the agent and his family, as well as a case in which an employer retaliated by filing false criminal charges against a former employee who had complained of discrimination. Therefore, the Court reasoned that the purpose behind the retaliation provision would not be served unless the provision encompassed a broader range of conduct than the anti-discrimination provision, noting that "[a] provision limited to employment-related actions would not deter the many forms that effective retaliation can take." Given these differences in both the language and purpose of the statute, the Court ultimately held that the retaliation provision is not limited to employer actions that affect the terms and conditions of employment. Instead, the Court established a standard that requires an employee to demonstrate that a reasonable employee would have found the challenged action to be materially adverse. Noting that Title VII's retaliation provision does not protect an employee from the "petty slights or minor annoyances" of the workplace, the Court stated that a challenged action must be significant enough to dissuade the average worker from making or supporting a charge of discrimination. The Court also emphasized that the context matters when determining whether an employer's action rises to the level of retaliation. For example, "[a] schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children." Applying the broader retaliation standard to White's claim, the Court upheld the original jury verdict in her favor. Although Burlington Northern eventually reversed its decision to reassign White and suspend her without pay, the company's actions were deemed sufficiently harmful to dissuade an employee from reporting discrimination. In a concurring opinion, Justice Alito disagreed with the majority's standard for retaliation claims. Instead, Justice Alito favored a narrower interpretation that would have limited retaliation claims to conduct that affects the terms and conditions of employment, although he would have upheld White's retaliation claim under this standard. Although the Burlington Northern case involved retaliation against an employee who made charges of sex discrimination, the decision applies more widely to employees who claim retaliation for reporting any kind of discrimination prohibited by Title VII. In addition, because the Court's decision in Burlington Northern means that a broader range of employer actions may constitute unlawful retaliation, it should become easier for employees to file retaliation claims. Therefore, the number of Title VII retaliation claims filed with the Equal Employment Opportunity Commission or in federal court may be expected to increase in the future.

This report discusses Burlington Northern and Santa Fe Railway Co. v. White, a recent case in which the Supreme Court considered the scope of the retaliation provision under Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Specifically, the Court held that the retaliation provision, which bars employers from retaliating against employees who complain of discrimination, is not limited only to activity that affects the terms and conditions of employment, but rather covers a broader range of actions that would be materially adverse to a reasonable employee or job applicant. This new standard is significant because it clarifies the protection from retaliation that is available to employees who complain of discrimination and makes it easier for workers to sue for retaliation.

Secret, or closed, sessions of the House and Senate exclude the press and the public. They may be held for matters deemed to require confidentiality and secrecy—such as national security, sensitive communications received from the President, and Senate deliberations during impeachment trials. Although Members usually seek advance agreement for going into secret session, any Member of Congress may request a secret session without notice. When the House or Senate goes into secret session, its chamber and galleries are cleared of everyone except Members and officers and employees specified in the rules or designated by the presiding officer as essential to the session. When the chamber is cleared, its doors are closed. Authority for the House and Senate to hold secret sessions appears in Article I, Section 5, of the Constitution: "Each House may determine the Rules of its Proceedings.... Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy.... " Both chambers have implemented these constitutional provisions through rules and precedents. In the House, Rule XVII, clause 9 governs secret sessions. A secret session may be held when the House has received confidential communications from the President or when a Member informs the House that the Member has communications that should be kept secret. A secret session may occur pursuant to a special rule or by a motion to resolve into a secret session made in the House. The House has also agreed on one occasion to a unanimous consent request authorizing the chair to resolve the House into secret session pursuant to this rule. A motion to resolve into secret session is in order in the House; it is not in order in the Committee of the Whole. A Member who offers such a motion announces the possession of confidential information and moves that the House go into a secret session. The motion is not debatable, and no point of order is available to require the communication at issue to be disclosed before the vote. If the motion is agreed to by a simple majority (a quorum being present), the chamber and galleries are cleared. When the only persons present are Members, officials allowed under Rule XVII, clause 9, and staff designated by the Speaker as essential to the proceedings, the chamber doors are closed, and the House begins the secret session. The Member making the motion is then recognized under the hour rule for debate. In addition, under Rule X, clause 11, paragraphs (g)(2)(D) through (g)(2)(G), the House Select Committee on Intelligence may move that the House hold a secret session to determine whether classified information held by the committee should be made public. This procedure is invoked only if the committee desires such a disclosure and the President personally objects to it. In the Senate, any Senator may make a motion that the Senate go into closed session, and, if seconded by another Senator, the Senate will immediately proceed into a secret session. Under Senate Rule XXI, the presiding officer exercises no discretion about going into secret session if the motion is made and seconded. The motion is not debatable. A Senator may interrupt another Senator to make the motion and may cause the other Senator to lose the floor. Once in a secret session, the Senate operates under applicable portions of Senate Rules XXIX and XXXI. Rule XXIX specifies which of the Senate's officers and staff may stay during the closed session and authorizes the presiding officer to include other staff at his discretion. Rule XXXI requires Senate business to be transacted in open session, but states that the Senate by majority vote may determine that a specific treaty, nomination, or other matter may be considered in secret session. A motion to return to open session is in order at any time, is not debatable, and requires a simple majority vote, a quorum being present. When the Senate is conducting an impeachment trial, it may hold deliberations behind closed doors. During this time, Senate standing rules are supplemented by additional rules, called "Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials." Members and staff of both houses are prohibited from divulging information from secret sessions. In the Senate, staff are sworn to secrecy, whereas in the House, staff must sign an oath not to reveal what happens in the secret session, unless the House decides to make its actions public. Violations of secrecy are punishable by the disciplinary rules of a chamber. A Member may be subject to a variety of punishments, including loss of seniority, fine, reprimand, censure, or expulsion. An officer or employee may be fired or subject to other internal disciplinary actions. The proceedings of a secret session are not published unless the relevant chamber votes, during the meeting or at a later time, to release them. Then, those portions released are printed in the Congressional Record . Under Rule XVII, if the House decides not to release the transcript of a secret session, the Speaker refers the proceedings to the appropriate committee(s) for evaluation. The committees are required to report to the House on their ultimate disposition of the transcript. If a committee decides not to release the transcript, it becomes part of the committee's noncurrent records (pursuant to House Rule VII, clause 3) and is transferred to the Clerk of the House for transmittal to the Archivist of the United States at the National Archives and Records Administration. Transcripts may be made available to the public after 30 years unless the Clerk of the House determines that such availability "would be detrimental to the public interest or inconsistent with the rights and privileges of the House" (Rule VII, clauses 3 and 4). If the Senate does not approve release of a secret session transcript, it is stored in the Office of Senate Security and ultimately sent to the National Archives and Records Administration. The proceedings remain sealed until the Senate votes to remove the injunction of secrecy. The Senate met in secret until 1794, its first rules reflecting a belief that the body's various roles, including providing advice and consent to the executive branch, compelled it to act behind closed doors. Although legislative sessions were generally open after 1795, the Senate's executive sessions (to consider nominations and treaties) were usually closed until 1929. Since 1929, the Senate has held 57 secret sessions, generally for reasons of national security or for consideration of impeachment questions. On December 20, 2010, for example, the Senate met in closed session to discuss the ratification of the New Start Treaty with Russia (Treaty Doc. 111-5). On December 7, 2010, the Senate met in closed session to debate the impeachment of federal judge G. Thomas Porteous, Jr., of Louisiana. Six secret sessions were held during the impeachment trial of President William J. Clinton in 1999. In 1997, the Senate met in secret to consider the Chemical Weapons Convention Treaty and, in 1992, to debate the "most favored nation" status of China. Table 1 identifies the 57 secret sessions of the Senate since 1929. The House met frequently in secret session through the end of the War of 1812, mainly to receive confidential communications from the President, but occasionally for routine legislative business. Subsequent secret meetings were held in 1825 and in 1830. Since 1830, the House has met behind closed doors four times: in 1979, 1980, 1983, and 2008. Table 2 identifies secret House sessions since 1825.

Secret, or closed, sessions of the House and Senate exclude the press and the public. They may be held for matters deemed to require confidentiality and secrecy—such as national security, sensitive communications received from the President, and Senate deliberations during impeachment trials. Although Members usually seek advance agreement for going into secret session, any Member of Congress may request a secret session without notice. When the House or Senate goes into secret session, its chamber and galleries are cleared of everyone except Members and officers and employees specified in the rules or designated by the presiding officer as essential to the session. After the chamber is cleared, its doors are closed. Authority for the House and Senate to hold secret sessions appears in Article I, Section 5, of the Constitution: "Each House may determine the Rules of its Proceedings…. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their judgment require Secrecy.... " Both chambers have implemented these constitutional provisions through rules and precedents. In the House, Rule XVII, clause 9 governs secret sessions, including the types of business to be considered behind closed doors. In addition, House Rule X, clause 11 authorizes the House Permanent Select Committee on Intelligence to bring before the House material to help it determine whether classified material held by the committee should be made public. In the Senate, under Senate Rule XXI, the presiding officer exercises no discretion about going into secret session. Any Senator may make a motion that the Senate go into closed session, and, if seconded, the Senate will immediately proceed into a secret session. Once in a secret session, the Senate operates under applicable portions of Senate Rules XXIX and XXXI. The Senate met in secret until 1794, its first rules reflecting a belief that the body's various special roles, including providing advice and consent to the executive branch, compelled it to conduct its business behind closed doors. Since 1929, when the Senate began debating nominations and treaties (referred to as executive business) in open session, the Senate has held 57 secret sessions, most often for reasons of national security or for consideration of impeachment proceedings. The House met frequently in secret session through the end of the War of 1812, mainly to receive confidential communications from the President, but occasionally for routine legislative business. Subsequent secret meetings were held in 1825 and in 1830. Since 1830, the House has met behind closed doors four times: in 1979, 1980, 1983, and 2008. A chamber's rules apply during a secret session. The proceedings of a secret session are not published unless the relevant chamber votes, during the meeting or at a later time, to release them. Then, those portions released are printed in the Congressional Record. This report will be updated as events warrant.

The 110 th Congress will consider several measures that bear directly on funding for the programs and activities of the U.S. Department of Agriculture (USDA). The 109 th Congress adjourned without completing action on the FY2007 agriculture appropriations bill ( H.R. 5384 ), which funds most of USDA for the current year. The 110 th Congress is expected to combine all unfinished appropriations bills into either an omnibus spending bill or a year-long continuing resolution that likely would hold spending at close to FY2006 levels for most discretionary programs. These funding decisions for FY2007 might intersect with congressional consideration of the FY2008 budget and appropriations, which begins shortly after the release of the Administration's budget request in early February 2007. Of interest to agriculture is the FY2008 budget resolution, whereby Congress will establish a blueprint for all federal spending over a multi-year period, which could set the fiscal parameters of the next omnibus farm bill, to be debated in 2007. (See CRS Report RL33412, Agriculture and Related Agencies: FY2007 Appropriations , coordinated by [author name scrubbed], and CRS Report RL33037, Previewing a 2007 Farm Bill , by [author name scrubbed] et al.) The 109 th Congress debated extensively whether a multi-billion dollar emergency disaster assistance package should be enacted to compensate farmers for 2005 and 2006 production losses caused by natural disasters. In the final week of the 109 th Congress, an amendment ( S.Amdt. 5205 ) that would have provided an estimated $3.8 billion in supplemental disaster aid was defeated during debate on the FY2007 agriculture appropriations bill ( H.R. 5384 ). The amendment was supported by numerous farm groups primarily in response to a severe drought in the Plains states. Opposing the amendment were the Administration and fiscal conservatives in Congress, who insisted that any assistance needed to be offset with other spending reductions. In the 110 th Congress, supporters have introduced a package of assistance ( S. 284 ) that is similar to S.Amdt. 5205 . A series of severe winter storms in late 2006 and early 2007 could broaden the scope of proposed assistance to include 2007 production losses. (See CRS Report RS21212, Agricultural Disaster Assistance , by [author name scrubbed].) Since most provisions of the current omnibus farm bill ( P.L. 107-171 , the Farm Security and Rural Investment Act of 2002) expire in 2007, the 110 th Congress will be making decisions about the content of a new farm bill. Commodity price and income support policy—namely, the methods, levels, and distribution of federal support to producers of farm commodities—is traditionally the most contentious component of a farm bill. However, other food and agricultural issues, notably those surrounding conservation, rural development, trade, domestic food assistance, and biofuels, also will be debated. A key question for the 110 th Congress will be whether to extend farm support programs as currently designed, or to adopt different approaches given the pressures of tight federal spending constraints, concerns about the distribution of farm program benefits, and the threat of potential World Trade Organization (WTO) challenges to farm price and income support spending. (See CRS Report RL33037, Previewing a 2007 Farm Bill , by [author name scrubbed] et al.) The 110 th Congress will continue to monitor the Administration's participation in the current Doha Round of multilateral trade negotiations, which has focused on agricultural trade liberalization. Negotiations were indefinitely suspended in July 2006 when a compromise agreement on reducing subsidies or expanding market access for agricultural products could not be reached. While a new multilateral trade agreement may not be in place before Congress takes up the 2007 farm bill, a new farm bill will nevertheless have to contend with existing WTO commitments in agriculture and possible challenges to U.S. subsidies in WTO dispute settlements. (See CRS Report RL33144, WTO Doha Round: The Agricultural Negotiations , by [author name scrubbed] and [author name scrubbed].) Meanwhile, the 110 th Congress will consider bilateral free trade agreements (FTAs) concluded with Colombia, Peru, and Panama, which are expected to boost U.S. agricultural exports. Separate bilateral agreements with other countries, including Malaysia and South Korea, are also being negotiated. Congress also might consider the extension of Trade Promotion Authority, which provides for expedited consideration of trade agreements and expires June 30, 2007. Other ongoing trade issues of interest to Congress include barriers to agricultural trade (see CRS Report RL32809, Agricultural Biotechnology: Background and Recent Issues , by [author name scrubbed] and [author name scrubbed], and CRS Report RL33472, Sanitary and Phytosanitary (SPS) Concerns in Agricultural Trade , by [author name scrubbed]); the scope of restrictions that should apply to agricultural sales to Cuba (see CRS Report RL33499, Exempting Food and Agriculture Products from U.S. Economic Sanctions: Status and Implementation , by [author name scrubbed]); and funding for U.S. agricultural export and food aid programs (see CRS Report RL33553, Agricultural Export and Food Aid Programs , by [author name scrubbed]). In March 2005, a WTO appellate panel ruled against the United States in a dispute settlement case brought by Brazil, stating that elements of the U.S. cotton program are not consistent with U.S. trade commitments. In response, Congress authorized the elimination of the Step-2 cotton program, effective August 1, 2006. Following the indefinite suspension of the WTO Doha Round of multilateral trade negotiations in July 2006, Brazil has pressed for further reductions in U.S. cotton support in response to the panel ruling. Consequently, additional permanent modifications to U.S. farm programs may still be needed to fully comply with the "actionable subsidies" portion of the WTO ruling. Some policymakers are concerned that a successful challenge of the cotton program in the WTO could have implications for the other farm commodity support programs. For example, on January 8, 2007, Canada requested consultations with the United States on U.S. domestic corn subsidies, as the first step in pursuing a WTO challenge. Any changes to farm commodity programs ultimately will be decided by Congress, most likely in the context of the 2007 farm bill. (See CRS Report RS22187, Brazil ' s WTO Case Against the U.S. Cotton Program: A Brief Overview , by [author name scrubbed], CRS Report RL33853, Canada ' s WTO Case Against U.S. Agricultural Support , by [author name scrubbed], and CRS Report RS22522, Potential Challenges to U.S. Farm Subsidies in the WTO: A Brief Overview , by [author name scrubbed].) Although not as energy-intensive as some industries, agriculture is a major consumer of energy—directly, as fuel or electricity, and indirectly, as fertilizers and chemicals. By raising the overall price structure of production agriculture, sustained high energy prices could result in significantly lower farm and rural incomes, and are generating considerable concern about longer-term impacts on farm profitability. Agriculture also is viewed as a potentially important producer of renewable fuels such as ethanol and biodiesel, although farm-based energy production remains small relative to total U.S. energy needs. Current law requires that biofuels use grow from 4 billion gallons in 2006 to 7.5 billion gallons in 2012. This standard, along with tax credit incentives, is expected to encourage significant increases in U.S. ethanol production. Although the increased use of corn for energy improves the prices and income of corn growers, some policymakers are concerned that higher prices for corn will add to livestock grower feed costs. (See CRS Report RL32712, Agriculture-Based Renewable Energy Production , by [author name scrubbed].) Spending for conservation programs, which help producers protect and improve natural resources on some farmed land and retire other land from production, has grown rapidly since the 2002 farm bill. This growth in spending reflects the expanded reach of conservation programs, which now involve many more landowners and types of rural lands. One topic that continues to attract congressional interest is implementation of the Conservation Security Program, enacted in 2002. Some stakeholders have questioned why USDA has implemented the program in only a few watersheds, and why Congress has limited funding even though the program was enacted as a true entitlement. The environmental, conservation, and agriculture communities have started to identify conservation policy options that might be considered in the next farm bill. (See CRS Report RL33556, Soil and Water Conservation: An Overview , by [author name scrubbed] and [author name scrubbed].) The potential for terrorist attacks against agricultural targets (agroterrorism) is recognized as a national security threat. "Food defense"—protecting the food supply against possible attack—has received increased attention since 2001. Through increased appropriations, laboratory and response capacities are being upgraded. National response plans now incorporate agroterrorism. Yet some in Congress want additional laws or oversight to increase the level of food defense, particularly regarding interagency coordination, response and recovery leadership, and ensuring adequate border inspections. (See CRS Report RL32521, Agroterrorism: Threats and Preparedness , by [author name scrubbed] . ) Approximately 76 million people get sick and 5,000 die from food-related illnesses in the United States each year, it is estimated. Congress frequently conducts oversight and periodically considers legislation on food safety and could do so again. Some Members continue to be interested in such issues as whether appropriate resources and safeguards are in place to limit microbiological contamination of fresh meat, poultry, and produce; the need, if any, for stronger enforcement or recall authority; the regulation of bioengineered foods; human antimicrobial resistance (which some link partly to misuse of antibiotics in animal feed); and interest among some in reorganizing food safety authorities and responsibilities, possibly under a single agency. (See CRS Report RL32922, Meat and Poultry Inspection: Background and Selected Issues , by [author name scrubbed].) Since 2003, highly pathogenic avian influenza (H5N1) has spread from Asia into Europe, the Middle East, and Africa; however, no cases of H5N1 have been found yet in the United States. Because avian flu is highly contagious in domestic poultry and can be carried by wild birds, USDA advocates stringent on-farm biosecurity. Controlling avian flu in poultry is seen as the best way to prevent a human pandemic from developing. Congress has responded to the threat by providing emergency and regular appropriations for surveillance, both domestically and internationally, and holding hearings covering the animal disease and food safety. Further funding will be necessary for surveillance, vaccine stockpiles, and first responder equipment. (See CRS Report RL33795, Avian Influenza in Poultry and Wild Birds , by [author name scrubbed] and [author name scrubbed].) Many believe that U.S. agricultural producers and food processors should improve their ability to identify and trace their products (including animals) through the food chain, whether to facilitate the removal of contaminated products, quickly contain animal disease outbreaks, enable consumers to verify labeling claims, and/or for country of origin labeling (COOL). One issue is whether a more universal animal identification system should be mandated and who should pay. Another is mandatory COOL for fresh red meats, produce, and peanuts, which Congress required in the 2002 farm bill but has since delayed, until September 30, 2008. ( H.R. 357 would require mandatory COOL implementation on September 30, 2007.) While some want COOL to be implemented, others would prefer voluntary labeling. (See CRS Report RS22526, Animal Agriculture: Selected Issues for Congress , by [author name scrubbed].) The Commodity Futures Trading Commission (CFTC) is an independent federal agency that regulates the futures trading industry. The CFTC is subject to periodic reauthorization; current authority expired on September 30, 2005. Congress traditionally uses the reauthorization process to consider amendments to the Commodity Exchange Act (CEA), which provides the basis for federal regulation of commodity futures trading. Among the issues in the debate are (1) regulation of energy derivatives markets, where some see excessive price volatility and a lack of effective regulation; (2) the market in security futures, or futures contracts based on single stocks, where cumbersome and duplicative regulation is blamed for low trading volumes; (3) the regulatory status of foreign futures exchanges selling contracts in the United States; and (4) the legality of futures-like contracts based on foreign currency prices offered to retail investors. (See CRS Report RS22028, CFTC Reauthorization , by [author name scrubbed] . ) Hired farmworkers are an important component of agricultural production. Some of these laborers are under guest worker programs, which are meant to assure employers (e.g., fruit, vegetable, and horticulture growers) of an adequate supply of labor when and where it is needed while not adding permanent residents to the U.S. population. The connection between farm labor and immigration policies is a longstanding one, particularly with regard to U.S. employers' use of workers from Mexico. The 109 th Congress considered the issue without resolution as part of a larger debate over initiation of a broad-based guest worker program, increased border enforcement, and employer sanctions to curb the flow of unauthorized workers into the United States. (See CRS Report 95-712, The Effects on U.S. Farm Workers of an Agricultural Guest Worker Program , by [author name scrubbed]; CRS Report RL30395, Farm Labor Shortages and Immigration Policy , by [author name scrubbed]; and CRS Report RL32044, Immigration: Policy Considerations Related to Guest Worker Programs , by [author name scrubbed].)

A number of issues of interest to U.S. agriculture are expected to be addressed by the 110th Congress. At the top of the agenda, Congress will be considering the unfinished business of FY2007 funding levels for U.S. Department of Agriculture (USDA) programs and activities in the annual agriculture appropriations bill. Separately, attempts might be made to reconsider a multi-billion dollar emergency farm disaster assistance package that was debated but not passed in the 109th Congress. Since most provisions of the current omnibus farm bill expire in 2007, the 110th Congress will be making decisions about the content of a new farm bill. Commodity price and income support policy is usually the focus of a farm bill, but other agricultural issues, such as conservation, rural development, trade, and biofuels also will be debated. Other agricultural issues likely to be either considered or monitored by the 110th Congress include multilateral and bilateral trade negotiations; concerns about agroterrorism, food safety, and animal and plant diseases; federal energy policy; agricultural marketing matters; the reauthorization of the Commodity Futures Trading Commission; and farm labor issues. This report will be updated as significant developments ensue.

On December 1, 2008, the National Bureau of Economic Research confirmed what many had suspected for some time – that the economy was in a recession. They announced that the economy had reached a cyclical peak, and that a recession had begun in December 2007. The term "recession" may often be used loosely to describe an economy that is slowing down or characterized by weakness in at least one major sector like the housing market. When economists use the term, however, they try to do so consistently. Recessions typically have common characteristics and so economists try to identify the beginning and ending dates of recessions in order to further their overall understanding of the economy. A recession is one of several discrete phases in the overall business cycle. The beginning of a recession is known as a business cycle "peak," and the end of a recession is referred to as a business cycle "trough." In 1946, Arthur Burns and Wesley Mitchell published a study of business cycles and offered a definition intended as a guide for further study: Business cycles are a type of fluctuation found in the aggregate economic activity of nations that organize their work mainly in business enterprises: a cycle consists of expansions occurring at about the same time in many economic activities, followed by similarly general recessions, contractions, and revivals which merge into the expansion phase of the next cycle. This definition requires both expansions and recessions to be apparent in many economic activities at about the same time, which would seem to exclude an economy exhibiting weakness in a single market. More recently, economists at the National Bureau of Economic Research (NBER), issued a memo with a slightly more precise definition: A recession is a significant decline in economic activity spread across the economy, lasting more than a few months, normally visible in real GDP, real income, employment, industrial production, and wholesale-retail sales. A recession begins just after the economy reaches a peak of activity and ends as the economy reaches its trough. Between trough and peak, the economy is in an expansion. Expansion is the normal state of the economy; most recessions are brief and they have been rare in recent decades. This is the generally accepted view among economists of what constitutes an economic recession. There is also a commonly cited "rule of thumb" that is referred to in the press. That rule is that a recession is two consecutive quarterly declines in real gross domestic product (GDP). But this rule does not always apply. For example, there was a recession beginning in March 2001 and ending in November 2001 that was not characterized by two successive quarterly declines in real GDP. In any case, an important distinction is that a recession is a period of declining output and not just a period of slower economic growth. It is possible for GDP growth to be positive yet so slow that the unemployment rate rises. This is sometimes referred to as a "growth recession." Among economists, the NBER is the generally accepted arbiter of business cycle turning points. The NBER is a private nonprofit and nonpartisan organization that was founded in 1920. In the beginning its focus was on the macroeconomy, business cycles, and long-term growth, but now it seeks to promote research on a wide variety of topics. For many years, the NBER itself determined the dates of swings in the business cycle. In 1978, however, a separate business cycle dating committee was formed. The members of the committee are appointed by the president of the NBER, and they are now responsible for determining the dates of the beginnings and ends of recessions. The current members of this committee are Robert Hall, Chair – Director of NBER's Program of Research on Economic Fluctuations and Growth, and Professor at Stanford University; Martin Feldstein – President Emeritus of NBER, and Professor at Harvard University; Jeffrey Frankel – Director of NBER's Program in International Finance and Macroeconomics, and Professor at Harvard University; Robert J. Gordon – NBER Research Associate, and Professor at Northwestern University; James Poterba – NBER President, and Professor at MIT; David Romer – Professor at the University of California, Berkeley; Victor Zarnowitz – Senior Fellow at the Conference Board, and Professor Emeritus at the University of Chicago. One important indicator of economic conditions is growth in real gross domestic product (GDP). GDP statistics are compiled each quarter, and thus there is a time lag between the first month that is reflected in the data and the release of the data. For example, the first release of data for the first calendar quarter of a given year does not occur until late April. The data from that release is subject to revision in each of the next two months and may be revised later on as well. It is not inconceivable that a first release of data that showed a decline in real GDP would later be revised to show an increase. Even so, those using the rule of thumb that two successive quarterly declines in real GDP constitutes a recession would have to wait for the release of the second quarter data in August to establish that a recession began at the start of the year. Because of the time lag associated with the release of GDP data, and because business cycle turning points are associated with months rather than quarters, the dating committee relies on a number of monthly economic indicators. Among the more important monthly indicators the committee looks at are personal income, employment, and industrial production. Even in the case of monthly indicators, it may require several months of data to establish a change in trends. When there is a recession, not all of the economic indicators may show a change in trend at the same time. Historically, some indicators, such as housing starts and the stock market, tend to slow or decline in advance of a recession, and some, like the unemployment rate tend to react to changing conditions with a lag. With all statistics it takes some time to compile the data, which means that the statistics are only available after the events they describe. Moreover, because it takes time to discern changes in trends given the usual month-to-month volatility in economic indicators, and because the data are subject to revision, it takes some time before the dating committee can agree that a recession (or an expansion) began at a certain date. Table 1 shows, for recent business cycle peaks and troughs, the date of the turning point and the date when the committee issued a release identifying the date of the turning point. The longest delay between the beginning of a new phase of the business cycle and its announcement was when a recession was found to have ended in March 1991 but was not announced until 21 months had passed. The shortest delay was five months after the expansion ended in January 1980. Of the eight examples shown here, four were not announced until at least a year had elapsed. While all recessions have unique characteristics, they also have many common aspects. Thus they are the object of economic analysis both individually and collectively. Because they are undesirable, economists study them in the hope that they can advise policymakers how to avoid them. To do so, it is important to agree on a chronology, and it may not be an inconvenience to economists that it takes time to establish one. Policymakers, on the other hand, are more concerned with the present and the immediate future. If they hope to avert or mitigate the consequences of recession, they cannot wait for an "official" declaration. By then the recession may be history. Although there can be a significant delay between the onset of a recession and the dating committee determination, there is often little doubt that the economy is, or has been, in recession well before the announcement. For policy measures to have mitigating effects, they must be timely. Policymakers may not have the luxury of holding themselves to as strict a definition of recession as economic analysts.

The National Bureau of Economic Research (NBER) recently announced that the economy had reached a cyclical peak and that a recession had begun in December 2007. A recession is one of several discrete phases in the overall business cycle. The term may often be used loosely to describe an economy that is slowing down or characterized by weakness in at least one major sector like the housing market. When used by economists, "recession" means a significant decline in overall economic activity that lasts more than a few months. NBER business cycle dating committee is the generally recognized arbiter of the dates of the beginnings and ends of recessions. With all statistics it takes some time to compile the data, which means they are only available after the events they describe. Moreover, because it takes time to discern changes in trends given the usual month-to-month volatility in economic indicators, and because the data are subject to revision, it takes some time before the dating committee can agree that a recession began at a certain date. It can be a year or more after the fact that the dating committee announces the date of the beginning of a recession. Just as it took some time for the business cycle dating committee to determine when the recession began, it is likely to be some time after the fact that they determine when the recession has come to an end.

In 1976, President Gerald R. Ford signed the Toxic Substances Control Act (15 U.S.C. 2601 et seq .; TSCA), giving the U.S. Environmental Protection Agency (EPA) authority to regulate production and use of industrial chemicals not otherwise regulated in U.S. commerce. Thirty-five years of experience with TSCA implementation and enforcement have demonstrated the strengths and weaknesses of the law and led many to propose legislative changes to TSCA's core provisions in Title I. Based on hearing testimony, stakeholders generally agree that TSCA needs to be updated, although there is disagreement about the extent and nature of any proposed revisions. Democrats introduced legislation to amend TSCA Title I in the 111 th Congress ( S. 3209 and H.R. 5820 ), but Congress did not vote on either bill. Those previous bills proposed generally similar changes to TSCA that were summarized in CRS Report R41335, Proposed Amendments to the Toxic Substances Control Act (TSCA): Senate and House Bills Compared with Current Law . On April 14, 2011, Senator Frank Lautenberg introduced similar, but not identical, legislation ( S. 847 ) in the 112 th Congress. To date, no other legislation has been introduced that would amend core provisions of TSCA Title I. Therefore, this report compares key provisions of S. 847 , as introduced, with provisions of TSCA Title I (15 U.S.C. 2601 et seq. ) that would be affected if S. 847 becomes law. These provisions are summarized in Tables 1 through 5. New provisions that would be added to the end of TSCA Title I by S. 847 —for example, those related to reduced use of animals for toxicity testing—are summarized in Table 6 . S. 847 would not affect Titles II through VI of TSCA, nor would it change the basic organization of TSCA Title I. For example, provisions related to testing would still be in Section 4, requirements for notifying EPA when a new chemical or new use is proposed would still be in Section 5, and regulatory authorities would remain in Section 6. Also unaffected would be changes to TSCA Title I that were enacted during the 110 th Congress, such as a provision that bans exports of elemental mercury. However, S. 847 would amend or delete most of the original Title I provisions and would make substantial additions to current law. Some key changes are summarized below. S. 847 , as introduced, directs the EPA Administrator to establish varied or tiered minimum data set requirements for different chemical substances or categories of substances. Manufacturers would be given a specified period of time to produce and submit data meeting the minimum data requirements for chemicals that are already in commerce and for any new chemicals that they propose to manufacture. Data sets would have to be submitted within five years of the date of enactment of S. 847 . Current law does not routinely require submission of data for chemicals, but EPA has the authority to require data submission if it promulgates a rule based on a finding that a chemical "may present an unreasonable risk of injury to health or the environment" and the agency demonstrates a data need. S. 847 directs the EPA Administrator to prioritize all chemicals already in commerce for evaluation and risk management by establishing a list that "contains the names of the chemical substances that … warrant placement within 1 of 3 priority classes … and identifies the priority class to which each listed chemical substance or category of chemical substance has been assigned by the Administrator." Priority class 1 chemicals would be defined as those "... that the Administrator determines require immediate risk management." The Administrator would be required to place between 20 and 30 chemicals in this category, and the data set for a high-priority chemical would have to be submitted within 18 months of its placement on the priority class 1 list. Priority class 2 chemicals would be defined as those "that the Administrator determines require safety standard determinations … based on any more-than-theoretical concern, that there is uncertainty as to whether a chemical substance would satisfy the safety standard." Priority class 3 chemicals would be defined as those "that the Administrator determines require no immediate action." Chemicals are not prioritized under current law. The Senate bill would establish a health-based safety standard for chemical use that protects vulnerable populations: manufacturers would be required to produce scientific data demonstrating "there is a reasonable certainty that no harm will result to human health or the environment from aggregate exposure to the chemical substance." S. 847 would prohibit manufacture, processing, and distribution of any chemical substance for any use that had not been included in the safety determination issued for that chemical. Moreover, an exemption from a prohibition would be allowed for a particular use only if: it were "in the paramount interest of national security"; lack of the chemical use "would cause significant disruption in the national economy"; the use were essential or critical and there were no safer feasible alternative; or the chemical use, relative to alternatives, provided a benefit to health, the environment, or public safety. In contrast, current law allows manufacture of and commerce in a chemical unless EPA promulgates a rule including a finding that a chemical presents or will present an "unreasonable risk" to human health or the environment. If EPA demonstrates that a risk associated with a chemical is unreasonable (relative to the benefits provided by the chemical and the estimated risks and benefits of any alternatives), the Agency is required to regulate, but only to the extent necessary to reduce that risk to a reasonable level and using "the least burdensome" restriction. S. 847 would expedite regulatory action, relative to the process under current law, by authorizing EPA in some cases to issue administrative orders instead of rules (which must be promulgated under current law), exempting certain EPA decisions from judicial review, and removing certain TSCA requirements that are in addition to requirements specified in the Administrative Procedure Act (5 U.S.C. 553) for notice and comment rulemaking. The scope of EPA oversight also would be expanded by S. 847 . As introduced, the bill includes language that allows EPA to define various distinct forms of substances that are the same in terms of molecular identity but differ in structure and function, such as manufactured nanoscale forms of carbon and silver. The introduced bill also broadens the scope of environmental risks that EPA may manage to include risks found in the indoor environment; currently, TSCA applies only to chemicals in the ambient environment. S. 847 also would appear to more clearly authorize EPA control of risks posed by articles containing a substance. The proposed amendments to TSCA would increase public access to information about EPA's decisions, as well as to some information about chemicals that currently is treated as confidential business information. S. 847 would authorize EPA activities not currently authorized under TSCA to allow implementation of three international agreements pertaining to persistent organic pollutants and other hazardous chemicals. For example, the proposal would authorize EPA to regulate chemicals manufactured solely for export. The authority provided by the bill would be specific to three international agreements, rather than more generally authorizing regulatory activity to implement any ratified international agreement concerning chemicals. The bill would prohibit production and use of chemicals when it was inconsistent with U.S. obligations under any of the three international agreements after they had entered into force for the United States. For more information about these agreements, see CRS Report RS22379, Persistent Organic Pollutants (POPs): Fact Sheet on Three International Agreements . The effect of TSCA on state and local chemical laws would be modified by S. 847 , as introduced. Current law, TSCA Section 18, generally does not preempt state laws. However, if EPA requires testing of a chemical under section 4, no state may require testing of the same substance for similar purposes. Similarly, if EPA prescribes a rule or order under section 5 or 6, no state or political subdivision may have a requirement for the same substance to protect against the same risk unless the state or local requirement is identical to the federal requirement, is adopted under authority of another federal law, or generally prohibits the use of the substance in the state or political subdivision. TSCA authorizes states and political subdivisions to petition EPA, and authorizes EPA to grant petitions, by rule, to exempt a law in effect in a state or political subdivision under certain circumstances. A petition may be granted if compliance with the requirement would not cause activities involving the substance to be in violation of the EPA requirement, and the state or local requirement provides a significantly higher degree of protection from the risk than the EPA requirement does, but does not "unduly burden interstate commerce." S. 847 would simplify this section of TSCA. An amended TSCA would not preempt laws relating to a chemical substance, mixture, or article unless compliance with both federal and the state or local law were impossible. Several new provisions are included in S. 847 . One provision, for example, would require definition and listing of localities with populations that are "disproportionately exposed" to toxic chemicals. EPA would be directed to develop an action plan to reduce exposure in such "hot spots." EPA would be required to establish a program to create market incentives for the development of safer alternatives to existing chemical substances that reduce or avoid the use and generation of hazardous substances. The program would be required to expedite review of a new chemical substance if an alternatives analysis indicated it was a safer alternative, and to recognize a substance or product determined by EPA to be a safer alternative. Another provision would direct the EPA Administrator to coordinate with the Secretary of Health and Human Services to conduct a biomonitoring study to determine whether a chemical that research had indicated may be present in human biological substances and that may have adverse effects on human development in fact was present in pregnant women and infants. If the chemical were found to be present, manufacturers and processors would have to disclose to EPA, commercial customers, consumers, and the general public all known uses of the chemical and all articles in which the chemical was expected to be present. Children's environmental health also is addressed by the bill. It would establish a children's environmental health research program at EPA and an advisory committee to provide independent advice relating to implementation of TSCA and protection of children's health. S. 847 , as introduced, also establishes at least four research centers to encourage the development of safer alternatives to existing hazardous chemical substances. "Green chemistry and engineering" also would be promoted through grants. Finally, S. 847 would direct EPA to minimize use of animals in toxicity testing. An advisory committee would be established to publish a list of testing methods that reduce use of animals. This provision aims to expedite development of so-called "alternative testing methods," which have been under development for many years, but remain a minor component of toxicity testing programs. Tables 1 through 6 summarize these and other selected provisions of S. 847 .

Thirty-five years of experience implementing and enforcing the Toxic Substances Control Act (TSCA) have demonstrated the strengths and weaknesses of the law and led many to propose legislative changes to TSCA's core provisions. Stakeholders appear to agree that TSCA needs to be updated, although there is disagreement about the extent and nature of any proposed revisions. S. 847 in the 112th Congress legislation would amend core provisions of TSCA Title I. This report compares key provisions of S. 847, as introduced, with current law (15 U.S.C. 2601 et seq.). Generally, S. 847 would increase the amount of information about chemical toxicity and usage that chemical manufacturers and processors would be required to submit to the U.S. Environmental Protection Agency (EPA), and would facilitate EPA regulation of toxic chemicals. The bill directs EPA to establish, by rule, varied or tiered minimum data set requirements for different chemical substances or categories of substances. Data would be required from chemical manufacturers and processors for all chemicals within five years of the date of enactment of S. 847, earlier for high-priority chemicals. All chemicals already in commerce are to be placed on a list and prioritized by EPA into three groups based on the need for risk management. A chemical must be included in the highest priority class if it "is, or is degraded and metabolized into, a persistent, bioaccumulative, and toxic substance with the potential for widespread exposure to humans or other organisms." EPA is required to determine whether chemicals in the top two priority classes, as well as all new chemicals, meet a stringent new safety standard, given the imposition of any needed restrictions on manufacture, processing, distribution, use, or disposal. The bill would prohibit any activities with respect to an evaluated chemical substance that the EPA had not specifically allowed in the safety standard determination. In contrast, current law authorizes data collection from manufacturers only if exposure is expected to be substantial or if EPA determines that a chemical may pose an unreasonable risk. TSCA as currently written allows all chemicals to enter and remain in commerce unless EPA can show that a chemical poses "an unreasonable risk of injury to health or the environment." EPA then must regulate to control unreasonable risk, but only to the extent necessary using the "least burdensome" means of available control. This TSCA standard has been interpreted to require cost-benefit balancing. S. 847 also would add new sections to TSCA. Of particular significance is a section authorizing actions that would allow U.S. implementation of three international agreements, which the United States has signed but not yet ratified. Other new sections would provide authority for EPA to support research in so-called "green" engineering and chemistry, promote alternatives to toxicity testing on animals, encourage research on children's environmental health, and require biomonitoring of pregnant women and infants. A "hot spots" provision would require EPA to identify locations where residents are disproportionately exposed to pollution and to develop strategies for reducing their risks. Key provisions of S. 847 are compared with current law in Tables 1 through 6.

The 112 th Congress is currently discussing how to fund the federal government's discretionary programs for the remainder of FY2011, which began on October 1, 2010. Congress approved a series of seven short-term continuing resolutions (CRs) to fund government activities. The current CR provides funding until April 15, 2011. If further funding were not provided, much of the federal government would be shut down. This report compares the various funding levels that have been considered during the 112 th Congress with H.R. 1473 , a compromise reached just before the expiration on April 8 of the sixth CR ( P.L. 112-8 ). H.R. 1473 provides discretionary budget authority to run the federal government for the remainder of FY2011, and includes both discretionary and mandatory spending reductions. Budget authority (BA) provides government agencies with the legal ability to make obligations on behalf of the federal government, subject to restrictions in appropriations legislation. Outlays occur once the U.S. Treasury Department disburses funds to discharge those obligations. The last part of this report summarizes long-term trends in federal spending and presents projections of FY2011 and FY2012 federal spending in terms of outlays. Congress approved a series of seven short-term continuing resolutions to fund government activities since October 1, 2010, when the fiscal year began. The current CR ( P.L. 112-8 ; H.R. 1363 ) provides funding until April 15, 2011. The bill reflecting the last minute compromise reached on April 8, 2011, H.R. 1473 , the Department of Defense and Full-Year Continuing Appropriations Act, 2011, is expected to be considered this week. Table 1 shows both short-term and longer-term continuing resolutions considered during the 112 th Congress. Congressional discussions of FY2011 measures have opened a vigorous interchange of views on the federal budget, with a strong focus on restraining federal spending. Some contend that FY2011 funding decisions should take a first step in reshaping the size and responsibilities of the federal government. Others note that the economy has not yet fully recovered from the 2009 recession, and criticize the proposed reductions for their likely impact on programs and services provided by the government, and potentially on a still fragile economy. In particular, unemployment rates remain high in most parts of the country, the housing sector remains weak, and the number of banking and financial institutions on watch lists is at historically elevated levels. Much of the discussion has focused on comparing proposed funding levels with the FY2010 enacted level, the President's FY2011 budget request, and H.R. 1 , the funding level approved by the House on February 19, 2011, which was intended to return spending levels for most agencies other than the Defense Department and other security-related agencies to FY2008 levels. For several years, the Administration has shown funding levels for "security" and "non-security" agencies separately. In its definition, security agencies include the Defense Department, the Veterans Administration (VA), the State Department/USAID, and the Department of Homeland Security (DHS). All other agencies are non-security. There has been little debate about the Administration's proposed funding levels for the Afghan and Iraq wars, which is treated separately. More recently, the House Budget Committee and the House Appropriations Committee have adopted a definition of "security" which includes DOD, VA, and DHS but excludes the State Department/USAID. Some House presentations of spending data also exclude war funding (described as Overseas Contingency Operations) from security totals. Table 2 below shows funding levels for H.R. 1473 and other funding proposals by the House subcommittee allocations, with subtotals for "security" and "non-security" using the House definition to give a sense of how funding for different purposes compares in the various funding proposals. (See Appendix for a summary of other FY2011 funding measures.) As Table 2 shows, for non-emergency funding, the continuing resolution enacted at the end of the 111 th Congress ( H.R. 3082 ; P.L. 111-322 ) set funding levels at close to FY2010 levels—a total of $1.087 trillion compared to $1.090 trillion until final levels could be agreed upon. H.R. 1 , as passed by the House on February 19, 2011, but which failed in the Senate on March 9, 2011, proposed a total of $1.026 trillion, below the FY2010 enacted level and substantially below the President's FY2011 budget request. H.R. 1473 , being considered this week, proposes a level of $1.050 trillion, an overall total below the FY2010 enacted level but above the level proposed in H.R. 1 . Comparisons between various spending measures, as noted above, have been central to the spirited discussions of FY2011 funding measures. Table 3 presents dollar differences between bills. Overall, H.R. 1473 is $66.5 billion below FY2010 enacted levels including a decrease of $42.0 billion for non-security agencies and a $1.3 billion increase for security agencies. Decreases relative to FY2010 levels are concentrated in Commerce, Justice, Science (CJS; $11 billion); Labor, HHS, and Education ($7.1 billion); and Transportation, Housing and Urban Development, and Related Agencies (T-HUD)($12.4 billion). Much of the decrease in CJS funding relative to FY2010 reflects the winding down of costs of the 2010 decennial census of population and housing. Much of the decrease in T-HUD funding relative to FY2010 was in cuts to transportation funding; the largest cuts came from zeroing out funding for the high speed rail grant program for FY2011 (as well as rescinding $400 million from prior year funding and from rescissions in prior year highway contract authority). (These comparisons do not reflect the 0.2% across-the-board reduction in Section 119 of Division B of H.R. 1473 .) Table 4 shows those differences in percentage-change terms. In percentage terms, the largest spending (BA) decreases relative to FY2010 enacted levels would affect program funding controlled by the following subcommittees: Agriculture/Rural Development (-14%); Commerce, Justice, Science (-17%); Financial Services (-9%); Interior and the Environment (-8%); and Transportation and Housing (-18%). The President's FY2011 budget request sets another benchmark for FY2011 funding proposals. Compared to the FY2011 request, H.R. 1473 would be $78.5 billion lower, or 6% overall. Decreases range from 8% (Labor-HHS-Education) to 19% (Transportation-HUD) in all of the non-security subcommittee jurisdictions. H.R. 1 , the FY2011 funding measure passed by the House, provides another benchmark. H.R. 1473 funding is $28.8 billion or 2% higher than H.R. 1 . Levels in H.R. 1473 are higher for Agriculture (10%), Labor/HHS (10%), as well as Energy & Water (6%), Financial Services (8%), and Interior-Environment (7%). A comparison of totals for "Security" and "Non-Security" shows that essentially all reductions are being taken in non-security areas. While the funds within the Defense Appropriations Subcommittee's jurisdiction would receive funding below the President's FY2011 request in all of the proposals, both H.R. 1473 and H.R. 1 propose funding above FY2010 enacted levels—almost $5 billion in the case of H.R. 1473 and about $7 billion in the case of H.R. 1 . These totals omit some Department of Defense funding because military construction is considered by the Military Construction/VA Subcommittee. That funding was slated to decrease in FY2011 with completion of funding for base closures. If that funding is taken into account, overall funding for the Department of Defense in H.R. 1473 would be $2 billion below FY2010 enacted levels. Discretionary spending is provided and controlled through appropriations acts, which fund many of the activities commonly associated with such federal government functions as running executive branch agencies, congressional offices and agencies, and international operations of the government. Essentially all spending on federal wages and salaries is discretionary. Discretionary spending, in general, funds costs of administering federal programs such as Medicare and Social Security, whose benefits are funded by mandatory spending. Mandatory spending, by and large, has grown more rapidly than discretionary spending over the past several decades. Figure 1 shows trends in spending, as measured by budget authority, since FY1976. Budget authority (BA), which gives federal agencies the legal ability to obligate federal funds, has been compared to funds in a checking account. Outlays occur once the U.S. Treasury disburses funds to federal contractors, employees, grantees, or other payees. Congressional analysts often consider spending in terms of budget authority, which Congress controls, rather than outlays, which can depend on decisions made in the executive branch. Deficits, however, are computed as the difference between revenues and outlays. Both discretionary and mandatory spending spiked in FY2009 due to the effects of the financial crisis of 2007-2009 and the subsequent recession. President Obama has proposed a five-year freeze in discretionary spending in his FY2012 budget submission, which is reflected in the projected decline in discretionary spending as a proportion of the economy after FY2011. Net interest payments are expected to rise after FY2011 because interest rates typically increase during economic recovery. CBO current-law baseline projections are computed using assumptions set forth in budget enforcement legislation. The CBO baseline projections are not intended to serve as a prediction of what budget outcomes are most plausible or likely. Rather, the CBO baseline projections are designed to serve as a budgeting tool, which is used to determine how legislative changes would increase or decrease the federal deficit. CBO baseline projections are based on current law, not current policy. If under current law a provision is slated to expire, the CBO baseline is computed on the assumption that the provision will expire—even when past Congresses have repeatedly extended similar provisions. For example, if a tax cut is slated to expire under current law, the baseline revenue projections would include an increase in revenues after the scheduled expiration of that tax cut—even if similar tax cuts had been extended in the past. CBO baseline projections presume that discretionary spending remains constant in inflation-adjusted (real) terms. As Figure 1 shows, discretionary spending in past decades has generally kept pace with growth of the economy as a whole, and thus has increased in terms of inflation-adjusted dollars. For these reasons, the CBO current-law baseline projections typically yield estimates of higher growth in revenue and slower growth of discretionary spending relative to scenarios that independent forecasters consider likely. CBO typically includes alternative projections that use assumptions that many economists consider more plausible as predictions of future budgetary outcomes. Appropriation legislation sometimes includes changes in mandatory programs (CHIMPs). CBO often includes summaries of cost savings or increases due to CHIMPs in its cost estimates. H.R. 1473 includes $17.5 billion in reductions in mandatory programs. A new CBO estimate suggests that these reductions in mandatory programs would have relatively little effect on outlays. The treatment of CHIMPs in CBO scoring differs from changes in discretionary spending. Suppose a proposal to increase discretionary spending by $1 is offset by a $1 reduction in mandatory spending in order to keep scoring of discretionary spending below a cap. If the proposal were enacted, the next update of the CBO current-law baseline would be rebased in order to reflect the legislative changes necessary to achieve the mandatory spending reduction. To keep the increased discretionary spending below the cap would then require a new decrease in mandatory spending. By contrast, if the discretionary spending increase were offset by a reduction in another discretionary program, additional offsets would not be necessary. Thus, changes in mandatory spending serve as one-time offsets to discretionary spending increases. While discussions of appropriations legislation typically consider spending in terms of budget authority, data on estimated outlays are important because they are used to compute total budget deficits. Furthermore, the federal government's current fiscal policy stance (i.e., its effect on current macroeconomic trends) depends on outlays. Table 5 presents projections and proposals for FY2011, along with enacted levels for FY2010. Table 6 presents projections and proposals for FY2012, along with actual levels for FY2010.

The 112th Congress is considering H.R. 1473, the Department of Defense and Full-Year Continuing Appropriations Act, 2011, which would fund the federal government's discretionary programs for the remainder of FY2011, which began on October 1, 2010. H.R. 1473 represents a last-minute compromise reached on April 8, the eve of the expiration of the sixth short-term continuing resolution (CR) enacted to date. The current CR (H.R. 1373/P.L. 112-8) provides funding until April 15, 2011. If further funding is not provided, much of the federal government would be shut down. The difficulty in reaching agreement on funding levels for the current fiscal year reflects a larger debate about how to restrain federal spending in the face of large deficits this year and in years to come. Much of the debate has focused on how various proposed funding levels compare to the FY2010 enacted level and President Obama's FY2011 budget request. H.R. 1473 proposes a total federal spending level of $1.21 trillion, or $66.5 billion below the FY2010 enacted level and $78.5 billion below the President's request. All of the proposed funding levels include $159 billion in emergency spending for the Afghan and Iraq wars as proposed by the President. While funding levels for the Defense Department and other security-related agencies (defined here as Defense, Military Construction/Veterans' Administration, and the Department of Homeland Security) have been reduced below the President's request in H.R. 1473, those levels are slightly above FY2010 enacted levels. Most of the debate about reducing spending has focused on discretionary spending for all other non-security areas ranging from Agriculture and Commerce to Transportation and Housing. For all non-security agencies, H.R. 1473 proposes a funding level of $421.7 billion—$42.0 billion or 4% below the FY2010 enacted level and $56.1 billion or 7% below the President's request. H.R. 1473 proposes a funding level of $23.8 billion or 2% above H.R. 1, which was passed by the House on February 19, 2011, and intended to return non-security spending to FY2008 levels. These comparisons are not precise because the $42 billion decrease relative to FY2010 enacted includes $17 billion in decreases to mandatory programs. A new CBO estimate suggests that H.R. 1473 reduces cumulative outlays by about $20 billion to $25 billion, largely because many of the changes to mandatory programs would have little effect on outlays. This report will be updated as necessary.

Presidential establishment of national monuments under the Antiquities Act of 1906 (16 U.S.C. §§431-433) has protected valuable sites, but also has been contentious. President Clinton used his authority 22 times to proclaim 19 new monuments and to enlarge 3 others (see Appendix ). With one exception, the monuments were designated during President Clinton's last year in office, on the assertion that Congress had not acted quickly enough to protect federal land. The establishment of national monuments by President Clinton raised concerns, including the authority of the President to create large monuments; impact on development within monuments; access to monuments for recreation; and lack of a requirement for environmental studies and public input in the monument designation process. Lawsuits challenged several of the monuments on various grounds, described below. The Bush Administration examined monument actions of President Clinton and the Interior Department is developing management plans for DOI-managed monuments. Recent Congresses have considered, but not enacted, bills to restrict the President's authority to create monuments and to establish a process for input into monument decisions. Monument supporters assert that changes to the Antiquities Act are neither warranted nor desirable, courts have supported presidential actions, and segments of the public support such protections. The Antiquities Act of 1906 authorizes the President to proclaim national monuments on federal lands that contain "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest." The act does not specify particular procedures for creating monuments. It was a response to concerns over theft and destruction of archaeological sites, and was designed to provide an expeditious means to protect federal lands and resources. Congress later limited the President's authority in Wyoming (16 U.S.C. §431a) and Alaska (16 U.S.C. §3213). Presidents have designated about 120 national monuments, totaling more than 70 million acres, although most of this acreage is no longer in monument status. Congress has abolished some monuments outright, and converted many more into other designations. For instance, Grand Canyon initially was proclaimed a national monument, but was converted into a national park. Congress itself has created monuments on federal lands, and has modified others. President Clinton's 19 new and 3 enlarged monuments comprise about 5.9 million federal acres. Only President Franklin Delano Roosevelt used his authority more often—28 times—and only President Jimmy Carter created more monument acreage—56 million acres in Alaska. Various issues regarding presidentially-created monuments have generated both controversy and lawsuits. Issues have included the size of the areas and types of resources protected, the inclusion of non-federal lands within monument boundaries, restrictions on land uses that may result, the manner in which the monuments were created, the selection of the managing agency, and other legal issues. Courts have upheld both particular monuments and the President's authority to create them. For instance, a court dismissed challenges to Clinton monuments which were based on improper delegation of authority by Congress; size; lack of specificity; non-qualifying objects; increased likelihood of harm to resources; and alleged violations of the National Forest Management Act of 1976 (NFMA, 16 U.S.C. §1601 et seq .), Administrative Procedure Act (APA, 5 U.S.C. §551 et seq .), and National Environmental Policy Act (NEPA, 42 U.S.C. §4321 et seq .). In another case, a court found that plaintiffs did not allege facts sufficient to support the court's inquiry into whether the President might have acted beyond the authority given him in the Antiquities Act. Critics assert that large monuments violate the Antiquities Act, in that the President's authority was intended to be narrow and limited. The monuments designated by President Clinton range in size from 2 acres to 1,870,800 acres. Defenders argue that the Antiquities Act gives the President discretion to determine the acreage necessary to ensure protection of the designated resources, while reserving "the smallest area compatible with the proper care and management of the objects to be protected" (16 U.S.C. §431). Critics also contend that President Clinton used the Antiquities Act for impermissibly broad purposes, such as general conservation and scenic protection. Supporters counter that the act's wording—"other objects of historic or scientific interest"—grants broad discretion to the President. Further, some claim that the Antiquities Act is designed to protect only objects that are immediately endangered or threatened, but others note that the Antiquities Act lacks such a specific requirement. To date, the courts have upheld the authority of the President on these issues. Non-federal lands are contained within the boundaries of some national monuments. Some state and private landowners have been concerned that development of such non-federal land is, or could be, more difficult because it might be judged incompatible with monument purposes or constrained by management of surrounding federal lands. Monument supporters note that concerned state and local landowners can pursue land exchanges with the federal government. State and local officials and other citizens have been concerned that monument designation can limit or prohibit development on federal lands. They argue that local communities are hurt by the loss of jobs and tax revenues that result from prohibiting or restricting future mineral exploration, timber development, or other activities. The potential effect of monument designation on energy development has been particularly contentious, given the current emphasis on energy production. Subject to valid existing rights, most of the recent proclamations bar new mineral leases, mining claims, prospecting or exploration activities, and oil, gas, and geothermal leases, by withdrawing the lands within the monuments from entry, location, selection, sale, leasing, or other disposition under the public land laws, mining laws, and mineral and geothermal leasing laws. Further, the FY2006 Interior, Environment, and Related Agencies Appropriations Act ( P.L. 109-54 ) continued a ban on using funds for energy leasing activities within the boundaries of national monuments as they were on January 20, 2001, except where allowed by the presidential proclamations that created the monuments. Mineral activities that would be allowed may have to adhere to a higher standard of environmental regulation to ensure compatibility with the monument designation and purposes. Others claim that monuments have positive economic impacts, including increased tourism, recreation, and relocation of businesses in those areas. Some maintain that development is insufficiently limited because recent monument proclamations typically have preserved valid existing rights for particular uses, such as mineral development, and continued certain activities, such as grazing. Some recreation groups and other citizens have opposed restrictions on recreation, such as hunting and off-road vehicle use. Proclamations typically have restricted some such activities to protect monument resources, and additional restrictions are being considered for management plans in development. Critics of the Antiquities Act argue that its use is inconsistent with the intent of the Federal Land Policy and Management Act of 1976 (FLPMA, 43 U.S.C. §1701 et seq .) to restore land withdrawal policy to Congress. A withdrawal restricts the use or disposition of public lands, e.g., for mineral leasing. In enacting FLPMA, Congress repealed much of the President's withdrawal authority and limited the ability of the Secretary of the Interior to make land withdrawals. It required congressional review of secretarial withdrawals exceeding 5,000 acres, and contains notice and hearing procedures for withdrawals. Supporters note that in enacting FLPMA, Congress did not repeal or amend the Antiquities Act and thus desired to retain presidential withdrawal authority. Critics of the Antiquities Act also assert that there has been insufficient public input and environmental studies on presidentially-created monuments, and favor amending the Antiquities Act to require public and scientific input similar to that required under NEPA, FLPMA, and other laws. Others counter that such changes would impair the ability of the President to act quickly and could result in resource impairment or additional expense. They assert that Presidents typically consult in practice , and that NEPA applies only to proposed actions that might harm the environment and not to protective measures. Whereas previously the National Park Service (NPS) had managed most monuments, President Clinton selected the Bureau of Land Management (BLM) and other agencies to manage many of the new monuments. Some critics have expressed concern that the BLM lacks sufficient expertise or dedication to land conservation to manage monuments. President Clinton chose BLM where its own lands were involved, to increase the agency's emphasis on land protection, and possibly both to protect the lands and manage them for multiple uses. Mineral development, timber harvesting, and hunting are the principal uses that would be legally compatible with BLM management but not with management by the NPS. Grazing also typically is allowed on BLM lands, but often precluded on NPS lands. The "Property Clause" of the Constitution (Article IV, sec. 3, cl. 2) gives Congress the authority to dispose of and make needed rules and regulations regarding property belonging to the United States. Some have asserted that the Antiquities Act is an unconstitutionally broad delegation of Congress' power, because the President's authority to create monuments is essentially limitless since all federal land has some historic or scientific value. A court dismissed a suit raising this issue, and this holding was affirmed on appeal. (See footnote 2 ). The recent monument designations renewed discussion of whether a President can modify or eliminate a presidentially-created national monument. While it appears that a President can modify a monument, it has not been established that the President, like Congress, has the authority to revoke a presidential monument designation. (For more information, see CRS Report RS20647, Authority of a President to Modify or Eliminate a National Monument , by [author name scrubbed] (pdf).) The Bush Administration examined the monument actions of President Clinton, including whether to exclude private, state, or other non-federal lands from the boundaries of newly-created monuments. There has been no comprehensive Administration effort to redesignate the monuments with altered boundaries. While the monument designation does not apply to these non-federal lands, most of President Clinton's monument proclamations stated that they will become part of the monument if the federal government acquires title to the lands from the current owners. Also, the Interior Department continues to develop management plans for new monuments within its jurisdiction. Further, President Bush reestablished one monument—the Governors Island National Monument in New York—on February 7, 2003. Legislation to amend the Antiquities Act of 1906 has not been introduced thus far in the 109 th Congress, but was considered in recent Congresses. For instance, H.R. 2386 of the 108 th Congress sought to amend the Antiquities Act to make presidential designations of monuments exceeding 50,000 acres ineffective unless approved by Congress within two years. The measure also would have established a process for public input into presidential monument designations and required monument management plans to be developed in accordance with the National Environmental Policy Act of 1969. Other legislation in recent Congresses has sought to alter particular monuments, for instance, to exclude private land from within their boundaries.

Presidential creation of national monuments under the Antiquities Act of 1906 often has been contentious. Controversy was renewed over President Clinton's creation of 19 monuments and expansion of 3 others. Issues have related to the size of the areas and types of resources protected, the inclusion of non-federal lands within monument boundaries, restrictions on land uses, and the manner in which the monuments were created. The Bush Administration reviewed President Clinton's monument actions and continues to develop management plans for some of the monuments. Congress has considered measures to limit the President's authority to create monuments and to alter particular monuments. Monument supporters assert that these changes are not warranted and that the courts and segments of the public have supported monument designations. This report will be updated to reflect changes.

Campaign Finance Reform: Constitutional Issues Raised by Disclosure Requirements RS20849 -- Campaign Finance Reform: Constitutional Issues Raised by Disclosure Requirements Updated March 20, 2001 In its landmark decision, Buckley v. Valeo, (2) the Supreme Court upheld the reporting and disclosure requirements of the Federal Election Campaign Act (FECA)applicable to contributions and expenditures by candidates and political parties. In Buckley, the Courtdetermined that disclosure requirements can serve threegovernmental interests that were sufficient to outweigh possible free speech infringements: (1) providing theelectorate with information about the sources ofcampaign money and how it is spent, (2) deterring the reality and appearance of corruption by exposing largecontributions and candidate expenditures, and (3)providing the government with the data necessary to detect violations of law. (3) However, with regard to independent expenditures, the Court found that reportingrequirements can only apply to those independent expenditures that expressly advocate the election or defeat of aclearly identified candidate. (4) In a noteworthy portion of the decision, the Court expressly deferred to legislative judgment in upholding the reporting and disclosure requirements. In Buckley, the plaintiffs argued that FECA provisions, which require political committees to maintain records with the nameand address of contributors donating over $10and to report the name, address, occupation, and employer of contributors who donate, in the aggregate, over $100,were unconstitutional. While the Court agreedthat these thresholds were "indeed low," it nevertheless found that "we cannot require Congress to establish that ithas chosen the highest reasonable threshold." (5) Indeed, the Court concluded, such determinations are "best left in the context of this complex legislation tocongressional discretion." (6) Court deference to legislative determinations may be limited, however, when a court finds that the legislature has established a series of differing disclosurethresholds without sufficiently demonstrating its reasoning for such disparities. For example, in Vote Choice,Inc. v. DiStefano, (7) the U.S. Court of Appeals forthe First Circuit struck down a Rhode Island law requiring political action committees (PACs) to disclose theidentity of every contributor, even contributorsdonating as little as $1, a practice sometimes referred to as "first dollar disclosure," while only requiring candidatesto disclose contributors donating more than$100. The First Circuit did not express concern with first dollar disclosure per se, but with the disparitybetween disclosure requirements applicable to PACsversus the requirements applicable to candidates. According to the Vote Choice court, the government'sinterest in disclosure is generally constant, that is, theinterest is the same regardless of whether the disclosure requirement applies to individuals or to an association ofindividuals. The subject Rhode Island law,however, was not only inconsistent, the court found, but imposed "a particularly virulent strain of unevenness intoits statutory scheme," without serving "anycognizable government interest." (8) Disclosure requirements can also raise constitutional questions concerning the right of contributors to organizations subject to disclosure requirements to enjoyfreedom of association. (9) According to the Supreme Court in its 1958decision, NAACP v. Alabama , (10) it is well established thatfreedom to engage in associationfor the advancement of beliefs and ideas is an inseparable aspect of the liberty rights guaranteed by the Due ProcessClause of the 14th Amendment (11) and thatthere is an important relationship between freedom to associate and privacy in one's associations. (12) Accordingly, the NAACP Court held that compelleddisclosure of an association's membership lists is unconstitutional, if it can be shown that disclosure is likely toconstitute an effective restraint on members'freedom of association rights. The Court found that disclosure of the NAACP's members had exposed thosemembers to economic reprisal, loss of employment,threat of physical coercion, and other manifestations of public hostility. Therefore, the Court held, compelleddisclosure of members would detrimentally affectthe association's ability to exercise its rights to advocate its beliefs and further, it might induce members to quit theassociation and dissuade others fromjoining. (13) Drawing from its reasoning in NAACP, in Buckley v. Valeo , the Supreme Court upheld the current FECA disclosure requirements as applied to minor as well asmajor parties. In Buckley, the plaintiffs argued that the First Amendment rights of minor parties weresignificantly burdened by contributor disclosurerequirements since they were more susceptible to harassment and that the government had little interest ininformation regarding minor parties having only a smallchance of winning elections. The Court determined, however, that unlike the evidence presented in NAACP , "any serious infringement on First Amendment rightsbrought about by compelled disclosure of contributors is highly speculative." (14) That is, according to the Court, absent a case being made that the threat toconstitutionally protected rights is so great and the governmental interest furthered by compelled disclosure is soinsubstantial that the law cannot beconstitutionally applied, disclosure laws will pass constitutional muster. (15) Nevertheless, the Buckley Court did recognize that, in the future, a specific minor partymight be able to demonstrate with a "reasonable probability" that disclosure requirements would subject its partycontributors to "threats, harassment, orreprisals," and accordingly, such a party could qualify for an exemption. (16) The Supreme Court applied this principle again in Brown v. Socialist Workers '74 Campaign Committee (Ohio) , (17) that disclosure rules generally will be upheld asapplied to minor political parties, unless the minor political party can demonstrate, as the party in this case did, thatsuch disclosure will subject the identifiedparties to a "reasonable probability" of "threats, harassment, or reprisals from either Government officials or privateparties." (18) In view of these Supreme Courtholdings, if a case could be made that a disclosure requirement would seriously infringe on the First Amendmentrights of contributors to organizations subject tothe requirements, then as applied to those cases, the regulations might be overturned. In Buckley v. Valeo, the Supreme Court upheld FECA disclosure requirements for independent expenditures. (19) Under FECA, when an organization or individual(other than a political committee) makes an independent expenditure, (20) aggregating over $250 in a year, expressly advocating the election or defeat of a clearlyidentified candidate, it is subject to disclosure requirements. (21) On the other hand, the current prevailing view of the courts is that disclosure requirements for non-candidate expenditures, which do not expressly advocate theelection or defeat of a clearly identified candidate, are unconstitutional. That is, according to most courts,expenditures for communications that merely relate topolitical issues, without meeting the "express advocacy" standard, are constitutionally protected issue advocacycommunications, which cannot be subject todisclosure requirements or any other regulation. (22) Even if a disclosure requirement is found to result in an unconstitutional regulation of First Amendmentprotected issue advocacy, some have argued thatconditioning receipt of tax-exempt status under the Internal Revenue Code (IRC) on compliance with a disclosurerequirement might provide a basis for regulatingbeyond the express advocacy standard to permit disclosure regulation of First Amendment protected issue advocacy. It has been a principle of federalconstitutional law, however, that the government may not condition the receipt of a public benefit upon arequirement to relinquish one's protected FirstAmendment rights. (23) In other words, the government may not accomplishindirectly what it would not be permitted to do directly. For example, in Speiser v.Randall , the Supreme Court held that a state could not condition a veteran's tax exemption upon the recipient'sexecution of a loyalty oath, which the Court foundto be in violation of recipient's First Amendment rights. (24) On the other hand, Regan v. Taxation With Representation of Washington (25) is sometimes cited in support of the government's ability to limit the exercise of aFirst Amendment right as a condition of receiving the public benefit of tax-exempt status. (26) In Regan , the Supreme Court upheld the restrictions on lobbying byIRC Section 501(c)(3) (27) organizations, to which contributions are taxdeductible, because they operate as a government subsidy directly supporting the activitiesin which the charity engages. (28) That is, if a charity engages in lobbyingactivities, then the government subsidy would be paying for those lobbying activities. Asnoted by the Court, "Congress has merely refused to pay for lobbying out of public moneys." (29) A disclosure requirement of issue advocacy expenditures by tax-exempt groups, however, does not involve a situation where the government is subsidizing theexercise of a First Amendment right. Instead, such a requirement might be held to infringe on a First Amendmentright, ( i.e. the right not to disclose or speakconcerning constitutionally protected issue advocacy communications), by requiring disclosure as a condition ofreceiving the benefit of tax-exempt status. Although the matter is not free from doubt, it seems likely that a court could find this type of disclosure requirementto be less in the nature of a permissibleprovision that merely denies federal funds for a particular First Amendment activity and more in the nature of animpermissible provision that denies federalbenefits to those who engage in protected activities.

Current federal election law contains reporting and disclosure requirements related tocampaign financing. (1) TheSupreme Court has generally upheld such provisions, although imposing disclosure requirements on spending forcommunications that do not meet the strictstandard of "express advocacy" may be held unconstitutional. Campaign finance reform legislation often contains provisions that would impose additional reporting anddisclosure requirements under the Federal ElectionCampaign Act (FECA). For example, S. 27 (McCain/Feingold), would require disclosure of disbursementsof expenditures over $10,000 for"electioneering communications," which are defined to include broadcast ads that "refer" to federal officecandidates, with identification of donors of $500 ormore. S. 22 (Hagel/Landrieu) would increase and expedite current disclosure requirements under FECA. H.R. 380 (Shays/Meehan)would lower the current FECA threshold for contribution reporting from $200 to $50 and impose reportingrequirements for soft money disbursements by personsother than political parties. This report will discuss some of the constitutional issues relating to these and other suchdisclosure requirements.

T here are approximately 766 million acres of forestlands in the United States, most of which are privately owned (445 million acres, or 58%) by individuals, families, Native American tribes, corporations, nongovernmental organizations, and other groups (see Figure 1 ). The federal government has numerous programs to support forest management on those private forests and also public—state and local—forests. These programs support a variety of forest management and protection goals, including activities related to planning for and responding to wildfires, as well as supporting the development of new uses and markets for wood products. These programs are primarily administered by the Forest Service (FS) in the U.S. Department of Agriculture (USDA), and often with the assistance of state partner agencies. This report describes current forestry assistance programs mostly funded and administered through the State and Private Forestry (SPF) branch of the FS. Following a brief background and overview, this report presents information on the purposes of the programs, types of activities funded, eligibility requirements, authorized program duration and funding level, and requested and enacted program appropriations. Figure 1. Forest Landownership in the Conterminous United StatesSource: CRS. Data from Jaketon H. Hewes, Brett J. Butler, and Greg C. Liknes, Forest Ownership in the Conterminous United States circa 2014 - geospatial data set, Forest Service Research Data Archive, 2017, https://doi.og/10.2737/RDS-2017-0007. Providing federal assistance for nonfederal forest landowners has been a component of USDA's programs for more than a century. Initial forestry assistance efforts began with the creation of the USDA Division of Forestry in 1881 (to complement forestry research, which began in 1876). Forestry assistance and research programs grew slowly, and in 1901 the division was upgraded to the USDA Bureau of Forestry. In 1905, the bureau merged with the Interior Department's Division of Forestry (which administered the forest reserves, later renamed national forests) and became the USDA Forest Service (FS). The FS has three primary mission areas: managing the National Forest System, conducting forestry research, and providing forestry assistance. The Senate and House Agriculture Committees have jurisdiction over forestry in general, forestry assistance, and forestry research programs. Congress authorized specific forestry assistance programs in the Clarke-McNary Act of 1924. This law guided those programs for more than half a century, until it was revised in the Cooperative Forestry Assistance Act of 1978 (CFAA). The House and Senate Agriculture Committees often examine these programs in the periodic omnibus legislation to reauthorize agriculture and food policy programs, commonly known as farm bills. The 2008 farm bill established national funding priorities (conserve working forests, protect and restore forests, and enhance public benefits from private forests); enacted a standardized process for states to assess forest resource conditions and strategize about funding needs; and established, modified, and repealed specific assistance programs, among other provisions. The 2014 farm bill repealed several programs, mostly programs whose authorizations had expired or programs that had never received appropriations. The 2014 farm bill also reauthorized and modified the requirement for statewide assessments and the Office of International Forestry. Many of the agricultural programs—including two forestry programs—authorized by the 2014 farm bill are scheduled to expire at the end of FY2018 unless Congress provides for an extension or reauthorizes them. Most forestry assistance programs are administered by the FS, but the programs are typically implemented by state partners (e.g., state forestry or natural resource agencies). In these cases, the FS provides technical and financial aid to the states, which then provides information and assistance to private landowners or specified eligible entities. However, the 2008 farm bill expanded the definition of authorized conservation practices for agricultural conservation programs generally to include forestry practices, and thus direct federal financial assistance to private forest landowners may be feasible through the conservation programs. See Table 1 for a brief summary of the FS programs addressed in this report; more information on each program is available in the " Forest Service Assistance Programs " section of this report. To be eligible to receive funds for most of the programs, each state must prepare a State Forest Action Plan, consisting of a statewide assessment of forest resource conditions, including the conditions and trends of forest resources in the state; threats to forest lands and resources, consistent with national priorities; any areas or regions of the state that are a priority; and any multistate areas that are a regional priority; and a long-term statewide forest resource strategy , including strategies for addressing the threats to forest resources identified in the assessment; and a description of the resources necessary for the state forester to address the statewide strategy. The State Forest Action Plans are to be reviewed every 5 years and revised every 10 years. All 50 states, the District of Columbia, and 8 territories are covered by a State Forest Action Plan. Each state must also publish an annual funding report and have a State Forest Stewardship Coordination (FSC) Committee. Chaired by the state forester and composed of federal, state, and local representatives (including representatives from conservation, industry, recreation, and other organizations), the FSC Committee makes recommendations on statewide priorities on specific programs as well as on the development and maintenance of the State Forest Action Plan. The forestry programs may provide technical assistance, financial assistance, or both. Technical assistance includes providing guidance documents, skills training, data, or otherwise sharing information, expertise, and advice broadly or on specific projects. Technical assistance may also include the development and transfer of technological innovations. Financial assistance is typically delivered through formula or competitive grants (with or without contributions from recipients) or cost-sharing (with varying levels of matching contributions from recipients). As an example, the Forest Health Protection program provides both types of assistance: financial assistance in the form of funding for FS to perform surveys and to control insects or diseases on state or private lands (with the consent and cooperation of the landowner) and technical assistance in the form of data, expertise, and guidance for addressing specific insect and disease infestations. Most—but not all—FS assistance programs are available nationally and have permanently authorized funding and without specified funding levels. No forestry assistance programs have mandatory spending; all require funding through the annual discretionary appropriations process, and are typically funded in the annual Interior, Environment, and Related Agencies appropriations acts. Most of the assistance programs are funded through the FS's State and Private Forestry (SPF) account, although some programs are funded or allocated from other accounts or programs. Some programs have been combined for funding purposes or for administrative reasons. Funding for forestry assistance programs has declined over the past 15 years, in both real and constant dollars (see Figure 2 ). The average annual appropriation over that time, from FY2004 through FY2018, was $362.7 million, with a peak of $420.5 million in FY2010 and a low of $328.9 million in FY2017. Funding increased in FY2018 to $355.1 million, but remains below the 15-year average. When adjusting for inflation, however, overall funding in FY2018 was 32% below FY2004 levels and 25% below FY2010 levels. In total, these forestry assistance programs made up 7% of the FS's total annual discretionary appropriation on average across those 15 years. The Administration requested $197.4 million in FY2019 and proposed to eliminate funding for seven of the programs and decreased funding for the others (see Table 2 for FY2014-FY2018 appropriations and the FY2019 budget request; more information on each program is available in the " Forest Service Assistance Programs " section of this report). Some FS programs have been repealed by previous farm bills, or have gone unfunded by Congress for several years. Table 3 lists these programs and the most recent congressional action. Some activities authorized by these unfunded or repealed programs may continue to be performed or provided by FS through other authorizations or funding sources. This report focuses on forestry assistance programs administered by FS. Other agencies, inside and outside of USDA, also administer programs that may have forest conservation or protection benefits. For example, the USDA Farm Services Agency (FSA) administers several programs, including the Emergency Forest Restoration program, which provides assistance to nonindustrial forest landowners to recover or restore forests following catastrophic events. The USDA Natural Resources Conservation Service (NRCS) administers the Healthy Forest Reserve program, which funds agreements, contracts, or easements to assist landowners with forest restoration or enhancement projects. The Department of the Interior administers a community assistance program to support collaborative community planning and projects to mitigate wildfire risk. The tabular presentation that follows provides basic information covering each of the FS forestry and fire assistance programs, including brief program description; program activities; eligibility requirements; the FS appropriations account budget line item that provides funding for the program; authorized funding levels and any funding restrictions; FY2018 funding level in the Consolidated Appropriations Act of 2018 ( P.L. 115-141 ); FY2019 funding level requested by the Administration; statutory authority, recent amendments, and U.S. Code reference; expiration date of program authority unless permanently authorized; and program's website link. Information for the following tables is drawn largely from agency budget documents and presentations, explanatory notes, and websites. Further information about these programs may be found on the FS SPF website at http://www.fs.fed.us/spf and on the "cooperative forestry" page.

The U.S. Department of Agriculture (USDA) has numerous programs to support the management of state and private forests. These programs are under the jurisdiction of the House and Senate Agriculture Committees and are often examined in the periodic legislation to reauthorize agricultural programs, commonly known as farm bills. For example, the 2014 farm bill repealed, reauthorized, or modified many of these programs. The House version of the 2018 farm bill, the Agriculture and Nutrition Act of 2018 (H.R. 2), contains a forestry title (Title VIII) that would reauthorize, modify, and establish new forestry assistance programs. Forestry-specific assistance programs (in contrast to agriculture conservation programs that include forestry activities) are primarily administered by the USDA Forest Service (FS), with permanent authorization of funding as needed. Some programs have been combined through the appropriations process or for administration purposes. These programs generally provide technical and educational assistance such as information, advice, and aid on specific projects. Other programs provide financial assistance, usually through grants (with or without matching contributions from recipients) or cost-sharing (typically through state agencies, with varying levels of contributions from recipients). Many programs provide both technical and financial assistance. Some of the assistance programs provide support for planning and implementing forestry and related land management practices (e.g., Forest Stewardship, Urban and Community Forestry). Other programs provide assistance for forest restoration projects that involve more than one jurisdiction and address regional or national priorities (e.g., Landscape Scale Restoration). Other programs provide support for protecting forestlands from wildfires, insects and diseases, and from converting forestland to nonforest uses (e.g., Community Forest and Open Space Conservation, Forest Legacy). The Forest Health program provides support for protecting both federal and nonfederal forests from continuing threats, although most of the funding goes to federal forests. Programs also exist to enhance state and rural wildfire management capabilities (e.g., State Fire Assistance and Volunteer Fire Assistance) and to promote the use of forest products (e.g., Wood Innovation). International Forestry is often included as a forestry assistance program, because it provides technical forestry help and because it is funded through the FS appropriations account for forestry assistance programs (State and Private Forestry). Most of the programs provide assistance to state partner agencies. The state agencies can use the aid on state forestlands or to assist local governments or private landowners. How the states use the resources is largely at the discretion of the states, within the authorization of each program and consistent with the national priorities for state assistance established by Congress in the 2008 farm bill. Overall funding for the Forest Service's forestry assistance programs in FY2018 was $355.1 million, an 8% increase over FY2017 funding of $328.9 million. The Trump Administration requested $197.4 million in funding for FY2019. Overall funding has declined over the past 15 years, however, in both real and constant dollars. Over that time, funding for forestry assistance programs has ranged between 5% and 9% of the total annual Forest Service discretionary appropriation.

During its development, the U.S. Navy's Unmanned Carrier Launched Airborne Surveillance and Strike (UCLASS) aircraft and its predecessors have been proposed to fill a number of roles and operate in a variety of air defense environments. The effort to choose among those roles and determine final requirements for the system has led to controversy and delay in executing the program. Members of Congress have proposed actions to resolve the requirements issue and allow the program to move ahead. Prepared in response to a specific Congressional request, this report details the history of UCLASS requirements development through the program's evolution to its current stage. It is based on available open-domain information, which may not agree in all particulars with Department of Defense (DOD) acquisition documents not available in the public domain. Table 1 summarizes changes in UCLASS and predecessor program requirements over time. In 1999, the Navy and the Defense Advanced Research Projects Agency (DARPA) began research into an unmanned combat air vehicle (UCAV). At the same time, the Air Force and DARPA jointly undertook a separate UCAV project. The Navy's UCAV (referred to variously as N-UCAV and UCAV-N) was designed to fit a relatively small niche. The Navy planned to continue using manned aircraft to suppress enemy air defenses (SEAD) and perform electronic attack. N-UCAV was thus intended "for reconnaissance missions, penetrating protected airspace to identify targets for the attack waves" consisting of manned aircraft. Although the program focused mostly on system studies, Northrop Grumman independently built a single X-47A air vehicle, which was tested under the N-UCAV program. First flight took place in February 2003. On December 31, 2002, the Office of the Secretary of Defense (OSD) issued a program decision memorandum adjusting future funding for both Navy and Air Force UCAV development and mandating the services merge their efforts into a joint program. The Defense Department recognized the potential for significant synergy by combining the programs, and in 2003 "directed that the programs be consolidated into a joint demonstration program supporting both Navy and Air Force needs." The resulting Joint Unmanned Combat Air Systems (J-UCAS) program was a DARPA-Air Force-Navy effort to demonstrate the technical feasibility, military utility, and operational value of a networked system of high-performance, weaponized unmanned air vehicles. Missions included SEAD, electronic attack, precision strike, penetrating surveillance/reconnaissance, and persistent global attack. "The operational focus of this system is on those combat situations and environments that involve deep, denied enemy territory and the requirement for a survivable, persisting combat presence ... operating and surviving in denied airspace." Three years later, the 2006 Quadrennial Defense Review called for the J-UCAS to be terminated. Instead, the Air Force was to begin developing a new bomber, while the Navy was mandated to develop an unmanned longer-range carrier-based aircraft capable of being air-refueled to provide greater standoff capability, to expand payload and launch options, and to increase naval reach and persistence. That follow-on effort became the Navy Unmanned Combat Air System (N-UCAS). Given the baseline of being able to operate from aircraft carriers, N-UCAS's other requirements looked much like J-UCAS, with the desired ability to provide "persistent, penetrating surveillance, and penetrating strike capability in high threat areas" "or suppress enemy air defenses." In 2006, as part of the N-UCAS program, the Navy initiated the Unmanned Combat Air System Demonstration (UCAS-D) program, intended to demonstrate the technical feasibility of operating unmanned air combat systems from an aircraft carrier. In 2013, the Navy successfully launched and landed a UCAS-D on an aircraft carrier. However, as UCAS-D was a subset of N-UCAS, it did not have a separate set of requirements. In total, the Navy invested more than $1.4 billion in UCAS-D. In 2011, as UCAS-D efforts were ongoing, the Navy received approval from DOD to begin planning for the UCLASS acquisition program. N-UCAS had been a development program to determine how to make an unmanned vehicle take on many of the aspects of a manned fighter. UCLASS, the Unmanned Carrier-Launched Airborne Surveillance and Strike program, was the Navy's way of turning what it had learned from N-UCAS into an operational platform "to address a capability gap in sea - based surveillance and to enhance the Navy's ability to operate in highly contested environments defended by measures such as integrated air defenses or anti - ship missiles." On June 9, 2011, the Joint Requirements Oversight Council (JROC) issued JROCM 087-11, a memorandum approving the UCLASS Initial Capabilities Document. That document stated UCLASS was to be "a persistent, survivable carrier-based Intelligence, Surveillance, and Reconnaissance and precision strike asset." In preparing for the FY2014 budget submission, the JROC revisited the UCLASS requirement. On December 19, 2012, the JROC published memoranda 086-12 and 196-12, which significantly altered "the requirements for UCLASS, heavily favoring permissive airspace intelligence, surveillance and reconnaissance (ISR) capabilities." The change in requirements appeared to be budget-driven. "The reduction in strike capability of the Navy's next generation carrier-based unmanned aerial vehicle was born of fiscal realities, said Dyke Weatherington, the Pentagon's director of unmanned warfare and intelligence, surveillance, and reconnaissance (ISR)." The Navy stated: In support of affordability and adaptability directives, JROCMs 086-12 and 196-12 redefined the scope of JROCM 087-11 and affirmed the urgency for a platform that supports missions ranging from permissive counter-terrorism operations, to missions in low-end contested environments, to providing enabling capabilities for high-end denied operations, as well as supporting organic Naval missions. The Office of the Secretary of Defense stated: In a December 2012 memorandum, the JROC emphasized affordability as the number one priority for the program. The CDD (Capability Development Document) established an affordability KPP (Key Performance Parameter) in which the recurring fly-away cost of the air vehicles to conduct one 600 nautical mile orbit shall not exceed $150 million. Available funding to complete system development is also limited, pressuring industry to provide mature systems and emphasize cost during development. On April 17, 2014, the Navy issued a draft request for proposals (RFP) for the UCLASS system. The RFP reportedly held to the requirements that, in the Government Accountability Office (GAO)'s words, "emphasized affordability, timely fielding, and endurance, while deemphasizing the need to operate in highly contested environments." The UCLASS draft RFP is classified. However, "according to (Chief of Naval Research RADM Mathias) Winter, the broad overarching goals of the UCLASS program are to provide two intelligence, surveillance and reconnaissance orbits at 'tactically significant ranges' 24 hours a day, seven days a week over uncontested airspace." The UCLASS would also have a light strike capability to eliminate targets of opportunity. A press report stated: "The plan here is to provide an early operational capability that will be verified and validated for a light strike permissive environment," (RADM Mathias) Winter said. "What we will ensure is that the design of the system does not preclude what we call capability growth to be able to operate in contested environments." UCLASS is still expected to grow into the missions required before the 2012 JROC memo. According to the Secretary of the Navy, "(t)he end state is an autonomous aircraft capable of precision strike in a contested environment, and it is expected to grow and expand its missions so that it is capable of extended range intelligence, surveillance and reconnaissance, electronic warfare, tanking, and maritime domain awareness." The timeline for procurement of UCLASS is unclear, and the GAO has noted that in part due to changes in requirements, UCLASS has experienced ongoing delays: Since our last review in September 2013, the system's intended mission and required capabilities have come into question, delaying the Navy's UCLASS schedule. DOD has decided to conduct a review of its airborne surveillance systems and the future of the carrier air wing, and has as a result adjusted the program's schedule. The Navy's fiscal year 2016 budget documents reflect these changes, with award of the air system contract now expected to occur in fiscal year 2017, a delay of around 3 years. In addition the Navy now expects to achieve early operational capability—a UCLASS system on at least one aircraft carrier—no earlier than fiscal year 2022, a delay of around 2 years... The schedule in the Navy's budget documents show that a Milestone A review—the decision to begin technology maturation and risk reduction efforts—is expected to occur in fiscal year 2017, a delay of around 3 years since our last review. As the UCLASS program continues to stretch out across multiple budget years, possibly including further JROC reviews, Quadrennial Defense Reviews, and other changes in DOD priorities, it is possible that requirements will evolve further.

During its development, the U.S. Navy's Unmanned Carrier Launched Airborne Surveillance and Strike (UCLASS) aircraft and its predecessors have been proposed to fill a number of roles and operate in a variety of air defense environments. Over time, those requirements have evolved to encompass a less demanding set of capabilities than first envisioned. This report details the history of UCLASS requirements development through the program's evolution to its current stage.

The federal courts of appeals, often called "circuit courts," remain the last avenue of appeal for all but the handful of cases heard by the Supreme Court of the United States. Eleven regional circuits cover the 50 states and U.S. territories. Each circuit court includes at least three states, and is currently authorized to have between 6 and 29 judgeships. A total of 179 authorized judgeships are available to the courts of appeals, although not all positions are currently filled. There are also courts of appeals for the District of Columbia Circuit and the Federal Circuit, but those courts do not have the same connection to state geography as the regional circuit courts of appeals. The Constitution of the United States empowers the President to make nominations for judicial vacancies, with "advice and consent" from the Senate. "State representation"—what one scholar describes as particular judicial seats on the circuit courts being affiliated with particular states—is customary for many seats, but it is not a formal requirement. A 1997 law requires that every state within a circuit be represented among appeals court judges by a resident of that state. In addition, except for the D.C. and Federal Circuits, appeals nominees must "reside" within the circuit at the time of appointment and "thereafter while in active service." Otherwise, the President is not required by statute to nominate appeals judges from particular states. Selection of appellate nominees is generally the product of consultation between the President and Senators representing states within the circuit in question. Some high-profile nominations to circuit court judgeships have been controversial, in part because they represented changes in state representation. Disputes concerning at least three circuits have occurred since the mid-1990s. Additional discussion appears below. First, in 1995, a dispute emerged over the nomination of James L. Dennis, a Louisianan nominated to a Fifth Circuit seat previously occupied by Mississippian Charles Clark. Dennis was eventually confirmed by the Senate. Second, some Senators publicly objected to the nominations of Claude Allen to a vacancy on the Fourth Circuit due to state representation grounds. Allen, from Virginia, was first nominated to the court in 2003 after the death of Judge Francis Murnaghan of Maryland. Allen's nomination was eventually returned to the President at the end of the 108 th Congress without Senate approval. The nomination was not resubmitted in the 109 th Congress; no nomination to the seat occurred during the 110 th Congress. On April 2, 2009, President Obama nominated Judge Andre M. Davis of the District Court of Maryland to fill this seat. Judge Davis was confirmed on November 9, 2009. Additionally, according to media accounts, the 2006 vacancy created by the resignation of Fourth Circuit judge Michael Luttig, of Virginia, prompted Senators from Virginia and North Carolina to advocate nominees from their respective states. In May 2008, G. Steven Agee, of Virginia, was confirmed to fill this position, failing to result in a change in state representation. The nomination of Norman Randy Smith to the Ninth Circuit also proved to be controversial. In December 2005, President George W. Bush nominated Smith, of Idaho, to a Ninth Circuit seat. California Senator Dianne Feinstein publicly objected to the nomination, stating that Smith's confirmation would result in a "transfer of a judgeship from California to Idaho." Senator Barbara Boxer, also from California, and other Senators also objected to the nomination. By contrast, Idaho Senators Larry Craig and Michael Crapo, and others, contended that Smith should be confirmed to the seat because its previous occupant, Judge Stephen S. Trott, maintained chambers in Idaho, and because judges from various states had previously held the seat. At the beginning of the 110 th Congress, President Bush renominated Smith to fill Judge Trott's vacancy, but later withdrew that nomination and renominated Smith to replace Judge Thomas Nelson, who had taken senior status. Nelson was originally nominated from Idaho. The Senate confirmed Smith on February 15, 2007, to the seat vacated by Nelson. In the 111 th Congress, the confirmation of Albert Diaz to the U.S. Court of Appeals for the Fourth Circuit resulted in a change in state representation, moving a seat from South Carolina to North Carolina. Diaz, formerly a state court judge in North Carolina, was nominated to replace William W. Wilkins, who served as a district court judge in the District of South Carolina before his elevation to the Fourth Circuit in 1986. In the present Congress, no nomination pending, if confirmed, would result in changes to state representation in a circuit. This report relies primarily on the Multi-User Database on the Attributes of United States Appeals Court Judges, 1801-1994 , compiled by Auburn University political scientists Gary Zuk, Deborah J. Barrow, and Gerard S. Gryski. Professor Gryski provided CRS with partially updated data, which CRS supplemented with information from the Federal Judicial History Office at the Federal Judicial Center (FJC), the FJC's Federal Judges Biographical Database, the Legislative Information System (LIS) nominations database, the Senate Executive Journal , and other sources, to make relevant portions of the database current. This report limits the inquiry to 1891-2009. According to Professor Gryski, information in the Multi-User Database on the state from which judges were nominated came from the Senate Executive Journal , Judiciary Committee questionnaires, and the Executive Calendar. Using the Senate Executive Journal and the LIS nominations database, a CRS reference assistant manually checked in the Multi-User Database all cases of apparent changes in state representation (e.g., a judge nominated from Florida replacing a judge from Georgia). CRS also conducted random checks of changes in state representation and other cases listed in the Multi-User Database , and found only minimal clerical errors. In the few cases of conflict between the Multi-User Database and CRS research, the authors relied on information listed in the President's nominating statement in the Senate Executive Journal or the LIS nominations database as the decisive record. Based on this methodology, the Multi-User Database appears to be highly reliable. For this report, CRS limited the database to 439 cases in which changes in state representation were possible, meaning that the first appointee to each seat was omitted since those appointments necessarily could not have represented changes. The data indicate that a seat is usually filled by a judge nominated from the same state as the predecessor in that seat. Where changes to state representation on the regional circuit courts of appeals have occurred, some patterns can be discerned. First, slightly more than three-quarters of confirmed nominations did not change state representation. Second, a noteworthy decline in the number of changes in state representation has occurred, particularly in the past 40 years. Third, some circuits have experienced greater changes in state representation than others. One explanation for the latter two patterns might be a practice of rotating seats among smaller states, particularly before a federal statute required that each state be represented on its circuit court and before Congress created enough judgeships within each circuit to allow each state to be represented at the same time. The Court of Appeals for the First Circuit, for example, covers the states of Maine, Massachusetts, New Hampshire, and Rhode Island. Until 1978, the court had only three authorized judges, so not all of the states could be represented on the court simultaneously. In general, however, the public record contains very limited information about why changes in state representation occurred. Table 1 summarizes changes in state representation across the regional circuit courts since 1891. The cells in the table list the number of changes in state representation each President made in each circuit (e.g., "1 of 2," meaning one change in state representation out of two total appointments to that circuit). Of the 455 opportunities for changes in state representation since 1891, 104 confirmed nominations (23%) resulted in such changes. Viewed differently, slightly more than three-quarters of all appellate vacancies have been filled by judges nominated from the same states as their predecessors. The 104 switches count the total number of changes in state representation, so if a state "loses" a seat but "regains" one at a later date, it would be counted as two switches in Table 1 . Accordingly, the 23% figure does not reflect net "gains" or "losses" by states on their respective circuit courts of appeals. Although the subtotals—for each President and each circuit—suggest variation in changes in state representation, one should exercise caution when generalizing from isolated data points. Because vacancies in a given circuit have occurred infrequently, any change in state representation could have had a substantial impact on the values in each cell of Table 1 . Summary percentages provide information only about how common changes in state representation have been in a particular circuit or presidency, not the political context surrounding those changes, such as the impact of negotiations between the President and the Senate. Some circuit court seats experienced changes early in their histories, but have since stabilized. Other seats experienced frequent changes throughout their histories. Compared with more recent administrations, Table 1 shows that changes in state representation were relatively common through the Kennedy Administration. Specifically, 40% of appointments through the Kennedy Administration marked changes in state representation, as compared with 13% from the Lyndon Johnson Administration to the present. In fact, half or more of all circuit court appointments for Presidents Cleveland, Taft, Harding, Coolidge, and Franklin Roosevelt resulted in state representation changes in circuit courts of appeals. By contrast, since the Johnson Administration, circuit court appointments have resulted in relatively modest changes in state representation. President Nixon's appointments accounted for the largest percentage change in state representation since the Kennedy Administration, although only 22% of his appointees resulted in such a change. Most recent appointments have resulted in substantially fewer changes. President George W. Bush (5%) had the lowest percentage of changes in state representation since Benjamin Harrison. President Clinton had the fourth-lowest percentage (11%). President Obama currently has the second-lowest percentage (6%), although this may change through his presidency. Some Presidents may have been able to compensate a state that "lost" a seat by appointing a judge from that state to a new seat when an additional judgeship was created. Table 1 also shows that changes in state representation have varied by circuit. The Eleventh Circuit, created from the old Fifth Circuit in 1981, has experienced no changes in state representation. State representation in the Second Circuit has also been very stable over time. On that circuit, only four of 54 appointments to the court (7%) have resulted in changes in state representation. By contrast, approximately 30%-40% of appointments have signaled changes in state representation on the First, Fourth, Eighth, and Ninth Circuits.

When a seat becomes vacant on a federal court of appeals (the "circuit courts"), the President has the opportunity to nominate a new judge for the Senate's consideration. Geography is often a factor in the decision, particularly whether the new judge will be nominated from the same state as the predecessor. One scholar refers to the custom of maintaining state continuity in seats within a court (e.g., a "Missouri seat" or an "Ohio seat") as "state representation." Federal statutes currently require that judges "reside" in the circuit at the time of appointment and while in active service, and that each state within the circuit be represented among the court's judges, but do not require that particular seats be reserved for nominees from particular states. As of this writing, President Obama has nominated 23 individuals to circuit court judgeships (excluding nominations made to the Federal Circuit and the U.S. Court of Appeals for the District of Columbia) during the 111th and 112th Congresses. Of the 16 confirmed, only one — that of Albert Diaz to the U.S. Court of Appeals for the Fourth Circuit — has resulted in a change in state representation. Of the seven whose nominations have not yet received final action, none would result in changes in state representation. This report provides an overview and analysis of changes in state representation of circuit court judges confirmed since 1891, when Congress created the modern regional appeals courts. The data reveal that some seats are consistently filled by judges from the same state. Other seats are filled by judges from various states in that circuit. Overall, changes in state representation have occurred in 23% of confirmed nominations since 1891. Changes in state representation were more common prior to the 1960s than in recent decades. Over 40% of appointments made during the Kennedy Administration or earlier have resulted in changes to state representation in a circuit; 13% of circuit court appointments after the Kennedy Administration have made such a change. The frequency of those changes has also varied by circuit. This report will be updated periodically to reflect changes in state representation or other notable developments.

Established in 1971 at the request of the SEC, the Nasdaq stock market is an all-electronic trading facility, which, unlike traditional exchanges like the New York Stock Exchange (NYSE) and the American Stock Exchange (AMEX), has no trading floors and facilitates the trading of over-the-counter (OTC) stocks through a network of market makers connected by telephone and computer. Nasdaq stock market was originally a wholly-owned for-profit subsidiary of the nonprofit NASD, which also served as its direct regulator or self-regulatory organization (SRO). In the mid-1990s, NASD's integrity as a self regulator was called into question when Nasdaq market makers were accused of manipulating stock prices. After a federal investigation, the NASD Regulation (NASDR) was established in 1996 as an independent subsidiary of the NASD. The main purpose was to separate the regulation of the broker/dealer profession from the operation of the Nasdaq. The NASDR became the primary regulator of broker-dealers and of the Nasdaq. All broker-dealers who are registered with the SEC, except those doing business exclusively on a securities exchange, are required to join the NASD. The NASDR's regulatory budget is derived solely from fees and fines imposed on NASD member firms. When it began, Nasdaq was regarded as a technological innovator because it did not rely on a physical trading floor. But over the last decade, both Nasdaq and traditional exchanges have faced growing competition from two principal sources: First, global stock markets that compete with U.S. markets for multinational corporate listings have grown dramatically. Second, continuous technological change has led to automated, computer-matching, trading platforms called electronic communication networks (ECNs). Indeed, Nasdaq has developed its own ECN, the SuperMontage and has acquired another one, Brut. To help themselves remain competitive, the world's major stock markets are reexamining their governance and capital structures with an eye toward changes that would enable them to react more deftly to the rapidly changing securities marketplace. Conversion from privately-held (mutual) status to shareholder-owned status known as demutualization, has become an increasingly attractive strategic response to the changing market dynamics. Many international and domestic stock exchanges have demutualized over the last decade or so, including the London, Tokyo, Philadelphia, and the New York Stock Exchange (in early 2006 after merging with Archipelago, the electronic communication trading network). Key reasons for demutulization have included that (1) it enables exchanges to more immediately raise capital and provide better regular access to capital markets; (2) it makes exchanges better able to align their interests with those of their key participants; and (3) it provides exchanges with greater flexibility and speed in adapting to changing market conditions. In the summer of 1999, the Nasdaq announced its intent to demutualize. This change raised a number of policy concerns that largely involved demutualized stock markets' ability to effectively discharge their SRO duties. Among the key questions raised by the prospect of demutulization were (1) Is there a cause for concern when a for-profit, shareholder-owned SRO regulates entities like broker-dealers who in turn have ownership stakes in competitive rivals such as electronic communication networks? and (2) Would the altered economics of being a for-profit, shareholder-owned exchange affect an exchange's ability to effectively regulate itself? After announcing its interest in pursuing demutualization, the NYSE cited other pressing concerns and put the process on hold. In April 2000, however, the NASD membership approved spinning off the for-profit Nasdaq from the non-profit NASD and converting it into a shareholder-owned market. The process was initially envisioned to have three broad stages: (1) issuing privately placed stock; (2) converting to technical exchange status; and (3) issuing public stock. The private placement took place in two sub-stages. In the initial sub-stage, the private placement, which was completed in June 2000, the NASD sold shares and issued warrants on shares of Nasdaq that it owned, and Nasdaq also issued and sold additional shares. The NASD's ownership interest in Nasdaq was reduced from 100% to 60%. The second sub-phase of the private placement was completed on January 18, 2001, with NASD's ownership interest then falling to 40% or about 77 million Nasdaq shares. The NASD, however retained 51% of the actual voting interest in Nasdaq. On February 21, 2002, Nasdaq acquired 13.5 million shares held by the NASD. On March 8, 2001, Nasdaq acquired 20.3 million shares from the NASD, leaving 43.2 million shares still owned by the NASD in the form of underlying warrants that had been issued during Nasdaq's private placements. Concurrently, a new series of preferred voting stock was issued to the NASD, allowing it to continue to have majority voting interest in Nasdaq. The second stage, conversion to exchange status, was a requirement for the third stage—sale of Nasdaq shares to the public. Although from a practical standpoint it has little significance, Nasdaq currently is exempt from the definition of an "exchange" under Rule 3a1-1 of the Securities and Exchange Act of 1934 because it is operated by the NASD. Before the NASD could relinquish control of it, Nasdaq was required to register as a national securities exchange. With approval of Nasdaq's exchange application, the preferred shares that provide the NASD with its majority vote interest over Nasdaq will expire and it will no longer have effective control over Nasdaq. The exchange's ultimate goal has been to conduct an initial public offering (IPO). On March 15, 2001, Nasdaq submitted an initial application for exchange status to the SEC, an application that the agency published for comment on June 14, 2001. It later made several amendments to the application in late 2001 and early 2002. After the initial application, the foremost regulatory concern for the SEC and a number of securities market participants was that, as written, the application would have continued to allow Nasdaq to operate without a trade execution protocol known as intra-market price and time priority, which is required of exchanges. This protocol is described below. Nasdaq processes limit orders, orders to buy or sell a stock when it hits a specified price. The NYSE centrally posts limit orders, which permits better-priced orders to receive priority execution there or on the various other interlinked market centers that trade NYSE-listed stocks. This is known as price and time priority and all exchanges abide by it. (Both the Nasdaq and the NYSE are markets in which brokers are required to exercise their duty of best execution when they route their customer's orders. The concept is inexplicit but is often interpreted to means that an order should be sent to the market center providing the best prevailing price.) But a significant fraction of Nasdaq market makers match buyer and seller orders from their own order books. Known as internalization, this can result in well priced limit orders outside of a market maker's book being ignored. Nasdaq officials have argued that their market permits competing dealers to add liquidity to the markets by interacting with their own order flow but SEC officials have concerns about the formal absence of price priority. This was a major sticking point in the agency's delay in approving the exchange application, concerns that Nasdaq attempted to address through subsequent amendments to its exchange application. On January 13, 2006, the SEC approved Nasdaq's application to become a registered national securities exchange. As a registered exchange, Nasdaq will become a self-regulatory organization (SRO) with ultimate responsibilty for its own and its members compliance with the federal securities laws. Several years ago, Nasdaq entered into a Regulatory Services Agreement with the NASD to perform certain key regulatory functions for it, an arrangement that should continue. Nasdaq is now officially a registered an exchange, but the SEC will not permit Nasdaq to begin operations as an exchange and to fully relinquish its independence from ongoing control by the NASD until various conditions, including the following key ones, are satisfied: Nasdaq must join the various national market system plans and the Intermarket Surveillance Group; The NASD must determine that its control of Nasdaq through its Preferred Class D share is no longer necessary because NASD can fulfill through other means its obligations with respect to non-Nasdaq exchange-listed securities under the Exchange Act; The SEC must declare certain regulatory plans to be filed by Nasdaq to be effective; and Nasdaq must file, and the Commission must approve, an agreement pursuant to Section 17d-2 of the Securities Exchange Act of 1934 that allocates to NASD regulatory responsibility with respect to certain activities of common members. Nasdaq's exchange application limits the exchange to transactions in the Nasdaq Market Center, previously known as SuperMontage and Brut, which will adhere to rules on intramarket priorities. However, orders that are internalized by NASD broker dealers that may not adhere to intra-market priority rules would be reported through the new Trade Reporting Facility (TRF), which must go through a separate regulatory review process and which will be administered by the NASD. Nasdaq will receive revenues from TRF trades (a contentious point for a number of its rivals).

Traditionally, the Nasdaq stock market was a for-profit, but wholly-owned subsidiary of the nonprofit National Association of Securities Dealers, Inc. (NASD), the largest self-regulatory organization (SRO) for the securities industry. In 2000, in a strategic response to an increasingly competitive securities trading market, the NASD membership approved spinning off the for-profit NASD-owned Nasdaq and converting it into a for-profit shareholder-owned market that later planned to issue publicly traded stock. For Nasdaq, this process has involved three basic stages: (1) issuing privately placed stock; (2) converting to technical exchange status; and (3) issuing publicly-held stock. Stage one, the private placement stage has been completed. In March 2001, Nasdaq submitted an application for exchange status to the Securities and Exchange Commission (SEC), an application that has been amended several times to address certain criticisms. Obtaining exchange status is necessary for Nasdaq to proceed to stage three, the issuance of publicly held stock. Realization of that stage became much closer on January 13, 2006, when after more than a half decade, the SEC approved Nasdaq's application to become a registered national securities exchange.

The United States Supreme Court recently held that the police may enter and search a home without the usually required warrant if they reasonably believe steps are being taken within the home to destroy the evidence they seek, Kentucky v. King . In doing so, the Court rejected limitations which some of the state and lower federal courts had imposed on the exigent circumstance exception to the Fourth Amendment's warrant requirement. The lone dissenter worried that her brethren may have "arm[ed] the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases." The Fourth Amendment provides that, "The right of the people to be secure in their ... houses ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause...." The Court has explained that "the Fourth Amendment has [thus] drawn a firm line at the entrance to the house ... '[a]bsent exigent circumstances, that threshold may not reasonably be crossed without a warrant.'" "Exigent circumstances" refers to those situations, among others, "in which police action literally must be 'now or never' to preserve the evidence of the crime," and consequently those in which "it is reasonable to permit action without prior judicial evaluation." For some courts, inexcusable exigencies occurred when the police created them in order to avoid seeking a warrant. There was no consensus, however, on the test to be used to determine whether they had done so. King was convicted in the aftermath of a Lexington, KY, "buy and bust." An informant made a street purchase of crack cocaine. A monitoring undercover officer radioed a description of the dealer to waiting uniformed officers who were to make the arrest. Before they could apprehend him, however, the dealer walked around a corner into an apartment complex breezeway. Two apartments opened onto the breezeway. The uniformed officers heard a door shut, but did not see which apartment the dealer had entered. Close to the apartment door on the left, however, they detected the strong smell of burnt marijuana. This suggested to them that the odor had drifted into the breezeway when the dealer opened and then closed the apartment on the left. They pounded on the door and shouted, "police." Hearing movement within the apartment and concluding that evidence was being destroyed, they kicked in the door. Inside they found King and two others, one of whom was smoking marijuana. A protective sweep of the apartment disclosed marijuana, cocaine, and drug paraphernalia in plain view. The three were arrested, as was the drug dealer found later in the apartment on the right. King ultimately pleaded guilty to possession of marijuana and trafficking in a controlled substance, contingent upon his right to appeal the trial court's denial of his motion to suppress the evidence secured after the officers' warrantless entry and search. The Kentucky Court of Appeals affirmed, and the Kentucky Supreme Court reversed. On the question of whether exigent circumstances justified the warrantless search of the apartment, the Kentucky Supreme Court adopted a two-part test: First, courts must determine whether the officers deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement. If so, then the police cannot rely on the resulting exigency. Second, where police have not acted in bad faith, courts must determine whether, regardless of good faith, it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances relied upon to justify a warrantless entry. If so, then the exigent circumstances cannot justify the warrantless entry. The officers in King failed the second test. "[I]t was reasonably foreseeable that knocking on the apartment door and announcing 'police,' after having smelled marijuana emanating from the apartment, would create the exigent circumstance relied upon, i.e. destruction of the evidence." That is, "[i]t was reasonably foreseeable that, upon hearing police announce their presence, the persons inside the apartment would proceed to destroy evidence of their crime." On the other hand, "[b]efore police announced their presence, there would have been no reason to destroy evidence of either the marijuana which the officers had smelled, or evidence of the original drug transaction." The United States Supreme Court granted certiorari to consider the question of "when does lawful police action impermissibly 'create' exigent circumstances which preclude warrantless entry; and which of the five tests currently being used by the United States Courts of Appeals is proper to determine when impermissibly created exigent circumstances exist?" The Court, in an opinion written by Justice Alito and joined by seven other members of the Court, noted the Court's regular acknowledgement that exigent circumstances, such as the threatened destruction of evidence, will excuse compliance with the warrant requirement. Thus, the Court reasoned, where "the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed." It then proceeded to explain why it found unpersuasive the various lower court justifications for a restriction of the exigent circumstance exception: bad faith, reasonable foreseeability, sufficient time to secure a warrant, deviation from standard police procedures, the threat of imminent police entry, and Court precedent. The Court rejected the argument that the exigent circumstance exception should be unavailable when the officers created the exigency in bad faith in order to avoid the warrant requirement. It observed that, "we have never held, outside limited contexts ... 'that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment.'" The reasonable foreseeability test favored by the Kentucky Supreme Court would "introduce an unacceptable degree of unpredictability." The "deviation from the preferred police practice" standard would produce yet another unclear test, the Court thought. It gave no credence to the suggestion that the exception should be unavailable if officers had sufficient probable cause and time to secure a warrant. In the mind of the Court, there are many acceptable reasons why officers might "knock and talk" or engage in other investigative techniques rather than seeking a search warrant as soon as some minimal level of probable cause exists. "Faulting the police for failing to apply for a search warrant at the earliest possible time after obtaining probable cause imposes a duty that is nowhere to be found in the Constitution." King argued that "law enforcement officers impermissibly create an exigency when they engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable. In [his] view, relevant factors include the officers' tone of voice in announcing their presence and the forcefulness of their knocks." The Court dismissed this with the observation that "the ability of law enforcement officers to respond to an exigency cannot turn on such subtleties." Finally, the Court denied its decision was controlled by Johnson v. United States . The Court in Johnson found a violation of the Fourth Amendment when police entered a hotel room after hearing shuffling within the room. Like King , Johnson involved a warrantless arrest and search occurring after officers smelled burnt drugs, knocked, and heard movement within the premises. Unlike King , however, the officers did not claim that exigent circumstances—movement suggesting evidence was being destroyed—justified the warrantless entry and search. The Kentucky Supreme Court had incorrectly held that the Fourth Amendment imposed a "foreseeability" limitation on warrantless searches conducted under exigent circumstances. The United States Supreme Court therefore reversed and remanded. Justice Ginsburg dissented. She "would not allow an expedient knock to override the warrant requirement." Rather, she would "accord that core requirement of the Fourth Amendment full respect." From her perspective, there was "every reason to conclude that securing a warrant was entirely feasible ... and no reason to contract the Fourth Amendment's dominion." The Court did not address whether sufficient exigent circumstances really existed in the case before it. Certiorari had been granted on the question of the permissible limits, if any, on police-created exigencies. The existence of a police-created exigency was assumed by both the Kentucky Supreme Court and the United States Supreme Court. The concern that gave rise to the "police-created exigency" doctrine in the lower courts may lead to a more demanding threshold of exigency in the future.

Authorities may enter and search a home without a warrant if they have probable cause and reason to believe that evidence is being destroyed within the home. So declared the United States Supreme Court in an 8-1 decision, Kentucky v. King, 131 S.Ct. 1849 (2011)(No. 09-1272). The Kentucky Supreme Court had overturned King's conviction for marijuana possession and drug dealing, because the evidence upon which it was based had been secured following a warrantless search which failed to conform with that court's restrictions under its "police-created exigencies" doctrine. The Fourth Amendment usually permits authorities to search a home only if they have both probable cause and a warrant. The warrant requirement may be excused in the presence of exigent circumstances, for instance, when it appears the occupants are attempting to flee or to destroy evidence. Leery lest authorities create exigent circumstances to avoid the warrant requirement, some state and lower federal courts had adopted one form or another of a police-created exigencies doctrine. The Court rejected each of these and endorsed searches conducted under the exigent circumstance exception, unless authorities had created the exigency by threatening to, or engaging in, activities which themselves violated the Fourth Amendment. In order to reach the question of limitations on police-created exigencies, the Court assumed the existence of exigent circumstances in King. The concerns from which the police-created exigencies doctrine emerged may now give rise to more stringent standards for what qualifies as an exigency.

RS21714 -- Generals and Flag Officers: Senior Military Officer Confirmations January 20, 2004 The role of the Senate in confirming senior military officer promotions and appointments stems directly from the U.S. Constitution. Article II, Section 2 of the U.S. Constitution states that the President "shall nominate, and by and with the Adviceand Consent of theSenate, shall appoint Ambassadors, other Public Ministers and Counsels, Judges of the Supreme Court, and all OtherOfficers of theUnited States, whose appointments are not herein otherwise provided for, and which shall be established by law." Generals and FlagOfficers (Admirals), fall into the category of "all Other Officers of the United States" and require Senateconfirmation. Othermilitary officers also require Senate confirmation, but this report, will focus on the process for the military's highestranking leaders-- one-star through four-star officers. (2) Since the early 1990s, the Senate has become increasingly vigilant in examining senior military officer misconduct and ensuring thatthe nominees they confirm meet the highest standard of accountability. During the mid-1990s, numerous hearingsand debatesensued about the suitability for promotion of many senior military officers. A heightening of Senate scrutiny canbe traced to notableconfirmation cases which included the following: In 1992, the Senate Armed Services Committee (SASC) vote to not awardThomas J. Hickey the retirement rank of Air Force Lieutenant General due to his failure to implement key directivesto solidify theintegrity of the Air Force promotion selection process; (3) in 1994, the debate over the retirement grade of Air Force LieutenantGeneral Buster C. Glosson, who was accused of improperly attempting to prejudice a promotion board; (4) and in 1994, thecontroversy over the retirement rank of Navy Admiral Frank B. Kelso II, because of his alleged responsibility forthe TailhookConvention scandal (5) in 1991 and a perceived lackof effort to integrate women into the Navy. (6) Today, Senate scrutiny of the leadership accountability of senior military officers remains vigorous. During the March 2003hearings regarding the sexual assault scandal at the U.S. Air Force Academy, Senator John W. Warner noted thatthe situation"demand(s) a deliberate critical examination and appropriate measure of accountability when a command fails insome key aspect ofits mission, particularly when personnel charged to a commander's care have been harmed". (7) This comment and other similarstatements made by Senators may be a signal that a new standard of accountability may continue to take shape inthe Senate in thecoming years. The key to this new standard may be the striking of a balance between congressional oversight, theSenate role to"advise and consent," and DOD transparency in disclosing senior military officer adverse information during theconfirmationprocess. During the confirmation process, it is DOD policy to inform the President and the SASC of adverse information concerning thenominated senior military officers. Personnel actions involving General and Flag Officers that require Senateconfirmation includenominations, appointments, reappointments, extensions, assignments, reassignments, promotions, and retirements. DOD Instruction1320.4 describes the procedures used to process these personnel actions. To comprehend these procedures, it mayhelp to understandtwo terms defined by the instruction: Adverse Information : Any substantiated adverse finding or conclusion from anofficially documented investigation or inquiry. Alleged Adverse Information : Any allegation of conflict of interest, failure to adhereto required standards of conduct, abuse of authority, misconduct or information serving as the basis for anincomplete or unresolvedofficial investigation or inquiry into a possible conflict of interest or failure to adhere to standards of conduct ormisconduct. It is also helpful to understand the difference between promotions and appointments. In general, military officers are selected forpromotion to one- or two-star rank by a centralized ad hoc selection board of general/flag officers. Candidates forthree- andfour-star appointments are not considered by a centralized board, but instead nominated by a Service Secretarythrough the Secretaryof Defense. For reappointments to another three- or four-star position, the Senate is required to reconfirm thepersonnel action, evenif no promotion is involved. According to Title 10, Section 1370 of the United States Code, GFO retirements mustalso beindividually confirmed by the Senate. DOD Instruction 1320.4 identifies how adverse information is considered by board members during one- and two-star centralizedpromotion boards. Section 615, Title 10, U.S. Code, Armed Forces, closely governs the procedures used by themilitary to consideradverse information during the promotion process by giving specific guidance on the type of information that maybe furnished toboard members. Specifically, information about a particular officer may be furnished to a selection board only ifthe informationexists in official military records (personnel folders, investigative records, etc.). Additionally, it must be determinedby a ServiceSecretary to be "substantiated, relevant information" that could "reasonably and materially affect the deliberations"of the selectionboard. The law also mandates that before adverse information about an officer is furnished to a board, theinformation must be madeavailable to the officer and that the officer must be given a reasonable opportunity to submit comments to the board. The DOD instruction also directs that for all GFO promotions and appointments, the Service Secretary review all official DODinvestigation records to confirm that each candidate meets prescribed standards of conduct. This internal reviewis usually led by theGeneral Counsel of the respective military department. Records reviewed by each service include files from theInspector General,military criminal investigation units, and Equal Employment Opportunity (EEO) organizations. For promotionsto one-star, aService Secretary directs a review of all adverse information covering the last 10 years of an officer's career toidentify negativetrends. For two-, three- and four-star personnel actions, the review includes any new adverseinformation since the individual's lastSenate confirmation. Once the review is completed, the Service Secretary considers the adverse information, if any,and decides ifhe or she will support the nomination. If so, the Secretary will forward a nomination package identifying theproposed promotion orappointment to the Secretary of Defense through the Assistant Secretary of Defense/Force Management Policy(ASD/FMP). According to DODI 1320.4, if the Secretary of Defense supports a senior military officer nomination submitted by a ServiceSecretary and if no adverse information exists on the nominee, the Secretary of Defense will endorse the nominationpackage andforward it to the President with the following certification: All systems of records, to include EEO files and the Public Disclosure Report (forone-star nominations only), maintained in the DOD that pertain to this officer have been examined. The filescontain no adverseinformation about this officer since his last Senate confirmation. Further, to the best of my knowledge, there is noplanned orongoing investigation or inquiry into matters that constitute alleged adverse information on the part of thisofficer. If the Secretary of Defense supports the nomination, but adverse information exists, the Secretary identifies the information in aseparate summary included with the nomination package submitted to the President. The summary outlines theadverse information,identifies the investigative agency, discloses findings, describes corrective actions taken, and explains why DODleaders continue tosupport the nomination. Forty-eight hours after the President signs a nomination list, the White House Clerk will forward the list to the Senate Clerk. DODPublic Affairs will announce a Presidential nomination as soon as possible after Presidential signature and militarydepartmentcoordination. After a nomination reaches the Senate, ASD(FMP) is the primary DOD conduit to discuss adverseinformation oralleged adverse information with SASC members or staff. But, this does not prohibit the military services fromcommunicatingdirectly with the SASC, or other Senators or staff, about a nomination. If a nomination package signed by thePresident containsadverse information, ASD(FMP) will send a letter to the Chairman of the SASC, advising him of the information. Normally, DODwill not report alleged adverse information or other unsubstantiated allegations to theSenate. However, in extraordinary casesinvolving an allegation, which is receiving significant media attention or when the SASC brings an allegation tothe attention ofDOD, a summary of the unsubstantiated allegation is provided. ASD(FMP) also monitors the names on a nomination list to determine if new adverse information exists. ASD(FMP) initiatesmonthly checks with each service and DOD IG on all nominations that have been received by the Senate, but havenot yet beenconfirmed. If, after a nomination reaches the Senate, and adverse information or alleged adverse information isidentified by DOD,the cognizant military department will notify ASD(FMP) within 5 business days. ASD(FMP) will advise the SASCof theinformation and will request that the nomination be held in abeyance until the matter is resolved. When theinvestigation or inquiryis completed on an officer whose nomination is on hold at the SASC, and the allegation is substantiated, therespective ServiceSecretary and the Secretary of Defense will decide if they still support the nomination. If support continues, thenthe nominationpackage will be resubmitted for re-approval by the President. If the President also continues to support thenomination, thenASD(FMP) will advise the SASC to proceed with the confirmation process. If, on the other hand, based on the newadverseinformation, the DOD administration does not support the nomination, the Secretary of Defense will submit a newnominationpackage through ASD(FMP), requesting that the President withdraw the nomination from the SASC. In instanceswhere theallegation is unsubstantiated, the ASD(FMP) will advise the SASC of the outcome of the investigation or inquiryand request that thenomination process proceed. (8) DOD's primary investigative mechanism is the Inspector General (IG). Allegations of administrative misconduct are investigatedseparately from allegations of criminal misconduct. Investigations of criminal misconduct areconducted by law enforcementagencies within each service Inspector General office. Criminal misconduct includes, but is not limited to,procurement fraud,computer crimes, bribery and kickbacks, financial crimes, government purchase card crimes, medical fraud,environmental crimes,and theft. There are four Defense Criminal Investigative Organizations (DCIOs) within DOD: The DefenseCriminal InvestigativeService (DCIS); US Army Criminal Investigation Command (USACIDC); The Naval Criminal Investigative Service(NCIS); and theAir Force Office of Special Investigations (AFOSI). (9) Conversely, administrative misconduct is investigated by an inquiry directorate within the respective service. Examples ofadministrative misconduct include sexual harassment, improper relationships, abuse of authority, favoritism, and misuse ofgovernment property. According to the DOD IG Semiannual Report to Congress, April-September 2003, onSeptember 30, 2003,there were 275 ongoing DOD senior officer investigations (included civilian leaders). During that six-month period,DOD reportedthat it closed 221 senior official cases, of which 32 (14%) identified misconduct to include: Misuse of governmentproperty andresources -- 35%, abuse of authority and favoritism -- 35%, improper personnel action -- 16%, sexual harassmentand improperrelationship -- 7%, and other misconduct -- 7%. Some analysts believe senior military officer confirmations will likely continue to receive increased scrutiny by some Members ofCongress. Recent hearings and statements suggest a concern in the Senate about the accountability of senior militaryofficers whofailed to promote a proper leadership climate in the organizations they commanded. An example is the scrutiny bySenators of thecontroversial circumstances surrounding the nomination of Major General Robert Clark to a three-star Armyposition. In 1991, hecame under criticism because a soldier thought to be a homosexual was killed at Fort Campbell, Kentucky, duringClark's command. Although an Army investigation cleared Clark of tolerating anti-gay attitudes on the post, critics alleged that whilehe was in chargeof Fort Campbell, he permitted an atmosphere of harassment. In a press release referencing this case, SenatorEdward M. Kennedystated: "We need to hold senior commanders accountable if they allow a climate of bigotry, intimidation and fearto exist on ournation's military bases". (10) Other recent misconduct cases including the 2003 Air Force Academy sexual assault investigations, alsohint that the Senate may be poised to increase the scrutiny of senior military officer accountability duringconfirmation. Thetransparency of DOD investigations may continue to be key in this process. DOD asserts that its investigative mechanism is objective, independent, and promotes confidence in its ability to "police its own." Inthe September 2003 Semiannual Report to Congress, Joseph E. Schmitz, Inspector General of the Department ofDefense, states: "The trust of the American public in their government requires confidence that the institutions of their governmentare acting in theirinterest...For 25 years, Inspectors General have sought to promote integrity, efficiency, and effectiveness in theprograms andoperations of government." This analysis has identified that the DOD disclosure process appears mostly transparentand welldefined. If improvements are required or desired, they are administrative in nature. For example, the DOD 10-year"look-back" may require refinement since the scope of the policy may actually be shorter than intended. As previously discussed,the disclosureof adverse information related to one-star nominations involves a review of files ten years back. A problem maystem from currentDOD records disposition schedules, in which some services purge IG investigation reports dealing withadministrative misconductafter two years (excludes criminal investigation files). (11) The investigation reports involving the administrative misconduct are heldfor ten years only if it involves a senior military officer. As result, a complete ten-year record of past investigationsmay not beavailable when compiling a disclosure for the Senate. (12) Another weakness may exist in the DOD practice of disclosing only new adverse information since the last Senate confirmation of asenior military officer. This practice may make it difficult for the Senate to identify misconduct trends or notecommand climateissues. Additionally, DOD generally does not disclose unsubstantiated allegations unless the Secretaryof Defense deems it relevantto the deliberations. This practice may prevent the Senate from getting a full disclosure of multiple unsubstantiatedallegations andhinder Members from identifying possible negative trends. If the disclosure of adverse trends in the organizationalclimate ofmilitary bases and posts becomes more critical during the Senate confirmation process, the DOD IG SemiannualReport to theCongress is one possible tool that may facilitate transparency into any developing trends. The report currentlyprovides meaningfulstatistical information concerning senior official inquiries, but may need to present a more rigorous analysis of anydeveloping trendsin command climate investigations. The addition of such an analysis to the report may allow Members to conductconfirmation andoversight functions more effectively.

This report describes the Department of Defense (DOD) process which discloses to theSenate adverse information about senior military officers awaiting confirmation of a General or Flag Officer (GFO)personnel action,such as a promotion or appointment. It also describes the DOD mechanism used to investigate administrative orcriminalmisconduct of Generals and Flag Officers (Admirals). Finally, the report analyzes trends in the way the Senatescrutinizes seniormilitary leaders during the confirmation process, especially if these leaders failed to promote a proper leadershipclimate in theorganizations they commanded. This report will be updated, as needed. (1)

A fugitive felon is any person who is fleeing to avoid prosecution for a felony crime or to avoid custody or confinement after conviction for a felony crime. Sections 202(x) and 1611(e)(4)(A) of the Social Security Act specify that fugitive felons are not eligible to receive benefits administered by the Social Security Administration (SSA). This prohibition includes Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act as well as Social Security Disability Insurance (SSDI) and Old-Age and Survivors Insurance (OASI, more commonly known as retirement and widows Social Security benefits) under Title II of the Social Security Act. Benefits already paid to fugitive felons are considered overpayments by the SSA and must be paid back to the government. Benefits can be restored if a person who was considered a fugitive felon is exonerated of all charges. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, P.L. 104-193 , provided for the prohibition of SSI benefit payments to fugitive felons and went into effect in August 1996. The Social Security Protection Act of 2004, P.L. 108-203 , extended the prohibition of benefit payments to fugitive felons to the SSDI and OASI programs. These prohibitions went into effect January 1, 2005. The SSA estimates that since the prohibition on SSI payments to fugitive felons went into effect in August 1996, the agency has suspended the benefits of nearly 78,000 fugitive felons, including nearly 24,000 in FY2003. These suspensions are estimated to have saved the SSI program more than $83 million in payments not made to fugitive felons and in overpayments to fugitive felons recovered by the SSA. The statutory definition of fugitive felon used for the purposes of denying SSI, SSDI, and OASI benefits can be found in Titles II and XVI of the Social Security Act. Section 1611(e)(4)(A) of the Social Security Act provides the definition of fugitive felon for the SSI program whereas Section 202(x)(1)(A) provides the same definition for the SSDI and OASI programs. The definition states that no person may receive benefits during any month in which he or she is fleeing to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which the person flees, for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the person flees, or, in jurisdictions that do not define crimes as felonies, is punishable by death or imprisonment for a term exceeding one year regardless of the actual sentence imposed. Implementing regulations provide more detailed information on how an individual becomes a fugitive felon for the purposes of denying SSI benefits. This more detailed definition gives fugitive status to a person at the time that a warrant is issued for his or her arrest. Specifically, the regulations state that a person becomes ineligible for SSI benefits because of his or her fugitive status on the first day of the earlier of (i) The month in which a warrant or order for the individual's arrest or apprehension, an order requiring the individual's appearance before a court or other appropriate tribunal (e.g., a parole board), or similar order is issued by a court or other duly authorized tribunal on the basis of an appropriate finding that the individual- (A) Is fleeing, or has fled, to avoid prosecution as described in paragraph (a)(1) of this Section; (B) Is fleeing, or has fled, to avoid custody or confinement after conviction as described in paragraph (a)(2) of this Section; (C) Is violating, or has violated, a condition of his or her probation or parole as described in paragraph (a)(3) of this Section; or (ii) The first month during which an individual fled to avoid such prosecution, fled to avoid such custody or confinement after conviction, or violated a condition of his or her probation or parole, if indicated in such warrant or order, or in a decision by a court or other appropriate tribunal. The SSA gives internal guidance to its employees via its Program Operations Manual System (POMS). POMS is not a regulation and does not have the force of law. However, it is used to guide the actions of SSA employees. Unlike the definition of fugitive felon found in the statute or in implementing regulations, the SSA's POMS guidance specifically states that a person is considered a fugitive solely on the basis of an outstanding warrant, without any consideration of whether the person is actually fleeing or attempting to avoid being captured. For the purposes of suspending SSI benefits, POMS states that "the warrant does not have to state that the individual is fleeing for the suspension to apply." For the purposes of suspending SSDI or OASI benefits, POMS states that "the person does not have to be actively hiding or evading the law in any way for these provisions to apply. The existence of the unsatisfied warrant is the only criterion necessary." The Social Security Protection Act of 2004, P.L. 108-203 , gives the SSA commissioner a limited ability to pay benefits to fugitive felons if, in her opinion, mitigating circumstances should be considered. However, mitigating circumstances can be used only to pay benefits to a fugitive felon if the felony offense that is the basis for the warrant is both nonviolent and not related to a violation of the drug laws. Cases involving violent crimes or felonies resulting from the use, sale, or manufacture of illegal drugs are not eligible for the mitigating circumstances exception; under no circumstances can a fugitive felon with an active outstanding warrant for these charges receive SSI, SSDI, or OASI benefits. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, P.L. 104-193 , contained a provision prohibiting the payment of SSI benefits to fugitive felons. In its report on the bill, the House Committee on the Budget stated that the SSI program was "intended for the aged, blind, and disabled" and that "fleeing convicts or probation or parole violators should not be supported through federal benefits." Although the payment of SSI benefits to fugitive felons was prohibited in 1996, this prohibition initially did not apply to SSDI or OASI benefits. The prohibition was extended to these programs effective January 1, 2005, with the passage of the Social Security Protection Act of 2004, P.L. 108-203 . In its report on the bill, the House Committee on Ways and Means explained that prohibiting fugitive felons from receiving SSDI and OASI benefits was intended to help "stop fraud, waste, and abuse" in these programs. In addition, the committee expressed concern that SSDI and OASI benefits were being used to aid fugitive felons in their flights from prosecution or punishment. In its report on the bill, the Senate Committee on Finance explained that the fugitive felon provision should only apply if a law enforcement agency is actively pursuing the person. The committee stated that this instruction, which is not explicitly mentioned in the law as enacted, was intended to prevent the SSA from becoming the "law enforcement agency of last resort" for people who may have committed crimes but whom local or state law enforcement is no longer interested in pursuing. The committee cited that it was aware of numerous cases in which law enforcement agencies chose not to pursue individuals identified as having open warrants through the enforcement of the existing SSI fugitive felon rules. On December 6, 2005, the Second Circuit Court of Appeals ruled that the SSA policy of suspending or denying SSI benefits to individuals whenever there is an outstanding felony arrest warrant is contrary to the agency's regulations and the underlying statutory provisions. As a result of this decision, the SSA issued an acquiescence ruling that will affect the way the fugitive felon provisions of the Social Security Act are applied to applicants and beneficiaries in three states. Fowlkes was living in Schenectady, New York, and receiving SSI benefits when the SSA learned of two outstanding Virginia arrest warrants, one for petty larceny and the other for a voter registration offense. Applying its policy with regard to fugitive felons in POMS, SSA suspended Fowlkes' benefits. Under the POMS guidance, Fowlkes' intent to flee, or his knowledge of the pending charges, was deemed irrelevant to his suspension of benefits. On appeal, Fowlkes argued that he was not a fugitive felon ineligible for SSI benefits under 42 U.S.C. § 1382(e)(4)(A), because the statutory language requires he have an intention to flee, which Fowlkes argued he lacked prior to March 2000 because he was unaware of the indictments against him in Virginia, and which Fowlkes argued he lacked after March 2000 when he became aware of the indictments because he was financially unable to return to the charging state. In addition, Fowlkes argued that the SSA regulations require a court order finding that Fowlkes was a fleeing felon before the SSA can suspend benefits, and that no such court order existed in his case. The circuit court held that the SSA's interpretation of the statute embodied in POMS was in direct conflict with the plain language of the statute and its implementing regulations. The court stated as follows: The statute does not permit the Commissioner to conclude simply from the fact that there is an outstanding warrant for a person's arrest that he is "fleeing to avoid prosecution." 42 U.S.C. § 1382(e)(4)(A). "Fleeing" in § 1382(e)(4)(A) is understood to mean the conscious evasion of arrest or prosecution. See Black ' s Law Dictionary 670 (8 th ed. 2004) (defining "flight" as "[t]he act or an instance of fleeing, esp. to evade arrest or prosecution"). Thus, there must be some evidence that the person knows his apprehension is sought. The statute's use of the words "to avoid prosecution" confirms that for "flight" to result in a suspension of benefits, it must be undertaken with a specific intent, i.e., to avoid prosecution. Thus, the court found the SSA's implementing regulation to be consistent with the statutory requirements because the regulation includes a requirement of a finding of intentional "flight." Indeed, the court posited that the regulation "may be stricter than the statute, insofar as it provides that the effective date of a benefits suspension is the date of issuance of a warrant or order issued by a court or other authorized tribunal on the basis of a finding that an individual fled or was fleeing from justice. Thus, the regulation does not permit the agency to make a finding of flight; rather, it demands a court or other appropriate tribunal to have issued a warrant or order based on a finding of flight." The court found that the POMS passages cited by the Commissioner were in direct conflict with the regulation in that they contemplate suspension of benefits without any finding of "flight" by a court or other tribunal. The court held that benefits may be suspended only as of the date of a warrant or order issued by a court or other authorized tribunal on the basis of a finding that a person was fleeing or had fled from justice. The circuit court remanded the Fowlkes case back to the district court for further proceedings consistent with the court's holding that the SSA is only permitted to suspend benefits because of a person's fugitive felon status as of the date that a warrant or court order finding that a person has fled or is fleeing from justice was issued. On April 6, 2006, the SSA issued an acquiescence ruling that explains how the agency will apply the Fowlkes v. Adamec ruling to agency decisions to suspend the benefits of persons deemed to be fugitive felons. Although the Fowlkes case dealt only with SSI benefits, this acquiescence ruling will apply to all administrative determinations or decisions by the SSA involving Title II and Title XVI applicants, Title II beneficiaries and Title XVI recipients who live in states within the jurisdiction of the Court of Appeals for the Second Circuit (i.e., Connecticut, New York, and Vermont). The acquiescence ruling went into effect on April 6, 2006, however, it can be applied retroactively to the date of the court's decision in Fowlkes , December 6, 2005, if a beneficiary or recipient can demonstrate that the application of the acquiescence ruling would have changed the outcome of his or her case. Within the states affected by the Fowlkes decision, the SSA will no longer rely solely on the existence of an outstanding warrant to determine the fugitive status of a beneficiary. Rather, before making a determination that an individual is fleeing to avoid prosecution, and thus is a fugitive felon, the SSA "must have evidence that the individual knows that there is an outstanding felony arrest warrant, and the outstanding arrest warrant must have been issued on the basis that the individual has fled or is fleeing from justice." However, in all other parts of the country, the SSA will continue its policy of suspending benefits based solely on the existence of a warrant, without any consideration of whether the person is actually fleeing or attempting to avoid being captured, as set forth in POMS guidance.

Fugitive felons are not eligible to receive benefits from the Supplemental Security Income (SSI), Social Security Disability Insurance (SSDI), or Old-Age and Survivors Insurance (OASI) programs administered by the Social Security Administration (SSA). For the purposes of these programs, fugitive felons are currently considered to be any persons with outstanding warrants for felony offenses. These prohibitions first went into effect in 1996 for the SSI program and in 2005 for the SSDI and OASI programs. This report includes an overview of the current laws, regulations, and internal SSA guidance related to fugitive felons; an explanation of the limited exception provided in cases of mitigating circumstances; and a brief legislative history of the provisions. In December 2005, the United States Court of Appeals for the Second Circuit issued a decision in Fowlkes v. Adamec, 432 F. 3d 90 (2nd 2005), that struck down part of the SSA's interpretation of its fugitive felon regulations, and held that the mere existence of an outstanding arrest warrant does not make a beneficiary a fugitive felon whose benefits may be suspended. This report includes a discussion of this decision as well as an overview of the SSA's acquiescence ruling that will apply this decision to SSI, SSDI, and OASI cases in Connecticut, New York, and Vermont. This report will be updated to reflect any policy changes.

With respect to its workload and workforce, EPA has struggled for years to identify its human resource needs and to deploy its staff throughout the agency in a manner that would do the most good. In 2010, we reported that rather than establishing a process for budgeting and allocating human resources that fully considered the agency’s workload, EPA requested funding and staffing through incremental adjustments based largely on historical precedent. We noted that the agency had not comprehensively analyzed its workload and workforce since the late 1980s to determine the optimal numbers and distribution of staff agencywide. Moreover, EPA’s human capital management systems had not kept pace with changing legislative requirements and priorities, changes in environmental conditions in different regions of the country, and the much more active role that states now play in carrying out the day-to-day activities of federal environmental programs. We recommended, among other things, that EPA link its workforce plan to its strategic plan and establish mechanisms to monitor and evaluate its workforce planning efforts. EPA generally agreed with these recommendations. Our recent work has also identified additional challenges related to workload and workforce management. For example, in July 2011, we reported that EPA had made considerable progress in meeting goals to contain and control contamination at high-risk hazardous waste sites. We also reported, however, that EPA had not rigorously analyzed its remaining workload or the resources it needed to meet its cleanup goals. We recommended that EPA assess its remaining cleanup workload, determine whether the program has adequate resources, and take steps to reallocate its resources or revise its goals. An assessment could also help EPA develop budget estimates and requests that align with program needs. EPA agreed with the recommendation. Also in July 2011, we identified challenges EPA faces in managing its laboratories and its related workforce. EPA operates a laboratory enterprise consisting of 37 laboratories housed in 170 buildings and facilities located in 30 cities across the nation. We reported that EPA had not fully addressed findings and recommendations of independent evaluations of its science activities dating back to 1992 and that its laboratory activities were largely uncoordinated. We also found that, consistent with our 2010 report on workforce planning, EPA did not use a comprehensive planning process for managing its laboratories’ workforce. Specifically, we reported that EPA did not have basic information on its laboratory workload and workforce, including demographic data on the number of federal and contract employees working in its laboratories. Without such information, we reported, EPA could not successfully undertake succession planning and management to help the organization adapt to meet emerging and future needs. Because of the challenges identified in this report, we made recommendations to address workforce and workload planning decisions. EPA generally agreed with our findings and recommendations. In September 2010, we reported on EPA’s library network and found that EPA had not completed a plan identifying an overall strategy for its libraries, implementation goals, or a timeline. EPA had developed a draft strategic plan, but it did not describe how funding decisions were made. We reported that setting out details for such decisions, to ensure that they are informed and transparent, was especially important because of the decentralized nature of the library network. We recommended, among other things, that EPA complete its strategic plan for the library network, including implementation goals and timelines. As part of this effort, we recommended that EPA outline details for how funding decisions were to be made to ensure they are informed and transparent. EPA concurred with our recommendations. Finally, our July 2011 report on EPA laboratories also identified challenges related to EPA’s management of its real property. Federal real property management is an area we have identified as part of our high- risk series because of long-standing problems with over reliance on leasing, excess and underused property, and protecting federal facilities. The need to better manage federal real property was underscored in a June 2010 presidential memorandum that directed agencies to accelerate efforts to identify and eliminate excess properties to help achieve a total of $3 billion in cost savings by 2012. In July 2010 EPA reported to the Office of Management and Budget (OMB) that it did not anticipate the disposal of any of its owned laboratories and major assets in the near future because these assets were fully used and considered critical for the mission of the customer and agency as a whole. However, we found that EPA did not have accurate and reliable information called for by OMB on (1) the need for facilities, (2) property use, (3) facility condition, and (4) facility operating efficiency, to inform such a determination. We made several recommendations for EPA to improve its physical infrastructure and real property planning, including improving the completeness and reliability of operating-cost and other data needed to manage its real property and report to external parties. EPA concurred with the recommendations. EPA relies on other federal and state agencies to help implement its programs. Given the federal deficit and the government’s long-term fiscal challenges, it is important that EPA improve coordination with its federal and state partners to reduce administrative burdens, redundant activities, and inefficient uses of federal resources. We have identified key practices for enhancing and sustaining collaboration among federal agencies, such as establishing the roles and responsibilities of collaborating agencies; leveraging their resources; and establishing a process for monitoring, evaluating, and reporting to the public on the results of collaborative efforts. In a September 2011 report on Chesapeake Bay restoration efforts, for example, we found that federal and state agencies were not working toward the same strategic goals. We also surveyed federal officials who said that some form of collaboration was necessary to achieve the goals of a strategy for protecting and restoring the Chesapeake Bay watershed. This collaboration could be between federal agencies, federal and state agencies, or federal agencies and other entities. We recommended, among other things, that EPA work with federal and state stakeholders to develop common goals and clarify plans for assessing progress. EPA generally agreed with the recommendations. In an August 2011 report on pharmaceuticals in drinking water, we found that an interagency work group of eight federal agencies (including EPA) tasked with developing a better understanding of the risks from pharmaceuticals in drinking water and identifying areas for future federal collaboration had disbanded in 2009 without producing a final report. We also reported that EPA coordinated informally with the Food and Drug Administration and the United States Geological Survey to collect data that could support regulatory decisions, but it did not have a formal mechanism for sustaining this collaboration in the future. We recommended that EPA establish a work group or formal mechanism to coordinate research on pharmaceuticals in drinking water. EPA agreed with the recommendation. In a 2009 report on rural water infrastructure, we reported that, from fiscal years 2000 through 2008, EPA and six federal agencies obligated $1.4 billion for drinking water and wastewater projects to assist communities in the U.S.-Mexico border region. We found that the agencies’ efforts to fund these projects were ineffective because the agencies, except the Indian Health Service, had not comprehensively assessed the region’s needs and did not have coordinated policies and processes for selecting and building projects. As a result, we suggested that Congress consider establishing an interagency task force to develop a plan for coordinating funding to address the region’s most pressing needs. Related to our findings on interagency coordination issues, our past and present work seeks to assist Congress and federal agencies in identifying actions needed to reduce duplication, overlap, and fragmentation; achieve cost savings; and enhance revenues. In March 2011, we issued our first annual report to Congress in response to a new statutory requirement that GAO identify federal programs, agencies, offices, and initiatives—either within departments or government-wide—which have duplicative goals or activities. The report identified 34 areas where agencies, offices, or initiatives had similar or overlapping objectives or provided similar services to the same populations or where government missions were fragmented across multiple agencies or programs. The report also identified 47 additional areas—beyond those directly related to duplication, overlap, or fragmentation—offering other opportunities for agencies or Congress to consider taking action that could either reduce the cost of government operations or enhance revenue to the Treasury. With respect to EPA, the report included our findings on rural water infrastructure, as well as the agency’s role in duplicative efforts to support domestic ethanol production. Related to the statutory requirement that GAO identify and report on federal programs, agencies, offices, and initiatives with duplicative goals or activities, we are monitoring developments in the areas already identified and will address any additional significant instances of duplication as well as opportunities for cost savings in future annual reports. We are developing a methodology to ensure that we conduct a systematic review across the federal government and report on the most significant instances of duplication, overlap, or fragmentation through the issuance of annual reports in 2012 and 2013, as well as the report we issued in March 2011. Our 2012 and 2013 reports will include the results of present and planned work related to EPA. In addition to our published work, we periodically assist appropriations and authorizing committees by reviewing agency budget justification documents. To this end, we review agencies’ budget requests, conduct selected analyses, and evaluate the support for and adequacy of agencies’ justifications for these requests. We often review the justification for programs of congressional interest, new programs and initiatives, and existing programs and practices. We typically provide the results of our analysis in data sheets or briefings to appropriating and authorizing committees. Over the years, our periodic review of EPA’s budget justification documents has led to two recurring observations. First, EPA has not consistently provided detailed justification for its activities when requesting new or expanded funding. In some cases, we have noted that such requests have not included (1) clear justification for the amount of funding requested or a detailed description of the type and scope of activities the funding would support, or (2) information on the management controls, such as a schedule for spending the requested funds, EPA would use to ensure the efficient and effective use of requested funding. Second, our reviews have often focused on the agency’s efforts to make use of unliquidated balances, or those funds that have been appropriated and properly obligated but not expended. In particular, this situation results from circumstances where no-year budget authority was obligated to a contract, grant, or interagency agreement that has expired with some level of funding remaining unexpended. Over the years, we have encouraged EPA to recover these unliquidated amounts through a process known as “deobligation.” When EPA deobligates funds from expired contracts, grants, or interagency agreements, it can “recertify” and re-use these funds, subject to certain restrictions, assuming the amounts have not expired and remain available for new obligations. Use of recertified funds can offset some need for new funding. Over the years, we have observed that EPA has made progress in its efforts to recover unliquidated funds from expired contracts, grants, and interagency agreements. For example, in 2010, EPA deobligated and recertified about $163 million, primarily in its Superfund, State and Tribal Assistance Grants, and Leaking Underground Storage Tanks accounts. While we have observed progress in recovering these funds, we have also observed that EPA’s budget justification documents do not describe the amount of deobligated and recertified funding available for new obligations. We have also observed that such information could be useful to Congress because the availability of recertified amounts could partially offset the need for new funding. Chairman Stearns, Ranking Member DeGette, and Members of the Subcommittee, this concludes my prepared statement. I would be pleased to answer any questions that you may have at this time. For further information about this testimony, please contact David Trimble at (202) 512-3841 or trimbled@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this statement. Contributors to this testimony include Michael Hix (Assistant Director), Ross Campbell, Ellen W. Chu, Tim Guinane, Kristin Hughes, Karen Keegan, Felicia Lopez, Jamie Meuwissen, and Cheryl Peterson. This is a work of the U.S. government and is not subject to copyright protection in the United States. The published product may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.

The Environmental Protection Agency (EPA) faces a number of management and budgetary challenges, which are particularly important as Congress seeks to decrease the cost of government while improving its performance. EPA operates in a highly complex and controversial regulatory arena, and its policies and programs affect virtually all segments of the economy, society, and government. From fiscal years 2000 through 2010, the agency's budget rose in nominal terms from $7.8 billion to $10.4 billion, but has remained relatively flat over this period in real terms. This testimony highlights some of the major management challenges and budgetary issues facing a range of EPA programs and activities today. This testimony focuses on (1) management of EPA's workload, workforce, and real property; (2) coordination with other agencies to more effectively leverage limited resources; and (3) observations on the agency's budget justifications. This testimony is based on prior GAO products and analysis.. Recent GAO work has identified challenges with EPA's efforts to manage its workload, workforce, and real property and made recommendations to address these challenges. In 2010, GAO reported that EPA had not comprehensively analyzed its workload and workforce since the late 1980s to determine the optimal numbers and distribution of staff agencywide. GAO recommended, among other things, that EPA link its workforce to its strategic plan and establish mechanisms to monitor and evaluate their workforce planning efforts. A 2011 review of EPA's efforts to control contamination at hazardous waste sites found that the program was making progress toward its goals but that EPA had not performed a rigorous analysis of its remaining workload to help inform budget estimates and requests in line with program needs. Regarding real property management--an area that GAO has identified as part of its high-risk series--GAO reported that EPA operated a laboratory enterprise consisting of 37 laboratories housed in 170 buildings and facilities in 30 cities. GAO found that EPA did not have accurate and reliable information on its laboratories to respond to a presidential memorandum directing agencies to accelerate efforts to identify and eliminate excess properties. The report recommended that EPA address management challenges, real property planning decisions, and workforce planning. GAO has reported on opportunities for EPA to better coordinate with other federal and state agencies to help implement its programs. Given the federal deficit and the government's long-term fiscal challenges, it is important that EPA improve its coordination with these agencies to make efficient use of federal resources. In a September 2011 report on the Chesapeake Bay, GAO found that federal and state agencies were not working toward the same strategic goals and recommended that EPA establish a working group or formal mechanism to develop common goals and clarify plans for assessing progress. In a 2009 report on rural water infrastructure, GAO reported that EPA and six other federal agencies had funded water and wastewater projects in the U.S.-Mexico border region. GAO suggested that Congress consider establishing an interagency task force to develop a plan for coordinating this funding. These findings were included in GAO's March 2011 report to Congress in response to a statutory requirement for GAO to identify federal programs with duplicative goals or activities. Periodic GAO reviews of EPA's budget justifications have led to two recurring observations. First, with respect to proposals for new or expanded funding that GAO has examined, EPA has not consistently provided clear justification for the amount of funding requested or information on the management controls that the agency would use to ensure the efficient and effective use of requested funding. Second, GAO's reviews have found that EPA's budget justification documents do not provide information on funds from appropriations in prior years that were not expended and are available for new obligations. Such information could be useful to Congress because these funds could partially offset the need for new funding. The work cited in this testimony made a number of recommendations intended to address management and related budget challenges, including improving the agency's workforce and workload planning, as well as its coordination with other federal agencies. EPA generally agreed with these recommendations.

SSA projects that its current data center will not be adequate to support the demands of its growing workload. In fiscal year 2008, SSA’s benefit programs provided a combined total of approximately $650 billion to nearly 55 million beneficiaries. According to the agency, the number of beneficiaries is estimated to increase substantially over the next decade. In addition, SSA’s systems contain large volumes of medical information, which is used in processing disability claims. About 15 million people are receiving federal disability payments, and SSA has been contending with backlogs in processing disability claims. According to SSA officials, the agency plans to use a large portion of the $1 billion in funding that it was allocated by the Recovery Act primarily to help build a large-scale data center and to develop new software to reduce the backlog of disability claims. The act provides $500 million from the stimulus package for data center expenses, of which $350 million is slated for the building infrastructure and part of the remaining funding for IT-related upgrades. This is not the entire projected cost: SSA has indicated that it needs a total of about $800 million to fund a new IT infrastructure, including the new data center—the physical building, power and cooling infrastructure, IT hardware, and systems applications. The Recovery Act’s goals, among other things, include creating or saving more than 3.5 million jobs over the next two years and encouraging renewable energy and energy conservation. According to the Office of Management and Budget (OMB), the act’s requirements include unprecedented levels of transparency, oversight, and accountability for various aspects of Recovery Act planning and implementation. These requirements are intended to ensure, among other things, that ● funds are awarded and distributed in a prompt, fair, and reasonable ● the recipients and uses of all funds are transparent to the public, and the public benefits of these funds are reported clearly, accurately, and in a timely manner; ● funds are used for authorized purposes and instances of fraud, waste, error, and abuse are mitigated; ● projects funded under the act avoid unnecessary delays and cost ● program goals are achieved, including specific program outcomes and improved results on broader economic indicators. An effort as central to SSA’s ability to carry out its mission as its planned new data center requires effective IT management. As our research and experience at federal agencies has shown, institutionalizing a set of interrelated IT management capabilities is key to an agency’s success in modernizing its IT systems. These capabilities include, but are not limited to ● strategic planning to describe an organization’s goals, the strategies it will use to achieve desired results, and performance measures; ● developing and using an agencywide enterprise architecture, or modernization blueprint, to guide and constrain IT investments; ● establishing and following a portfolio-based approach to investment implementing information security management that ensures the integrity and availability of information. The Congress has recognized in legislation the importance of these and other IT management controls, and OMB has issued guidance. We have observed that without these types of capabilities, organizations increase the risk that system modernization projects will (1) experience cost, schedule, and performance shortfalls and (2) lead to systems that are redundant and overlap. They also risk not achieving such aims as increased interoperability and effective information sharing. As a result, technology may not effectively and efficiently support agency mission performance and help realize strategic mission outcomes and goals. All these management capabilities have particular relevance to the data center initiative. ● IT strategic planning. A foundation for effective modernization, strategic planning is vital to create an agency’s IT vision or roadmap and help align its information resources with its business strategies and investment decisions. An IT strategic plan, which might include the mission of the agency, key business processes, IT challenges, and guiding principles, is important to enable an agency to consider the resources, including human, infrastructure, and funding, that are needed to manage, support, and pay for projects. For example, a strategic plan that identifies interdependencies within and across modernization projects helps ensure that these are understood and managed, so that projects—and thus system solutions—are effectively integrated. Given that the new data center is to form the backbone of SSA’s automated operations, it is important that the agency identify goals, resources, and dependencies in the context of its strategic vision. ● Enterprise architecture. An enterprise architecture consists of models that describe (in both business and technology terms) how an entity operates today and how it intends to operate in the future; it also includes a plan for transitioning to this future state. More specifically, it describes the enterprise in logical terms (such as interrelated business processes and business rules, information needs and flows, and work locations and users) as well as in technical terms (such as hardware, software, data, communications, and security attributes and performance standards). It provides these perspectives both for the enterprise’s current environment and for its target environment, as well as a transition plan for moving from one to the other. In short, it is a blueprint for organizational change. Using an enterprise architecture is important to help avoid developing operations and systems that are duplicative, not well integrated, unnecessarily costly to maintain and interface, and ineffective in supporting mission goals. Like an IT strategic plan (with which an enterprise architecture should be closely aligned), an enterprise architecture is an important tool to help SSA ensure that its data center initiative is successful. Using an enterprise architecture will help the agency ensure that the planning and implementation of the initiative take full account of the business and technology environment in which the data center and its systems are to operate. ● IT investment management. An agency should establish and follow a portfolio-based approach to investment management in which IT investments are selected, controlled, and monitored from an agencywide perspective. In this way, investment decisions are linked to an organization’s strategic objectives and business plans. Such an approach helps ensure that agencies allocate their resources effectively. In 2008, we evaluated SSA’s investment management approach and found that it was largely consistent with leading investment management practices. SSA had established most practices needed to manage its projects as investments; however it had not applied its process to all of its investments. For example, SSA had not applied its investment management process to a major portion of its IT budget. We recommended that for full accountability, SSA should manage its full IT development and acquisitions budget through its investment management board. We also made several recommendations for improving the evaluation of completed projects, including the use of quantitative measures of project success. Going forward, ensuring that best practices in investment management are applied to the data center initiative will help the agency effectively use funds appropriated under the Recovery Act. For example, projects funded under the act are to avoid unnecessary delays and cost overruns and are to achieve specific program outcomes and improved results on broader economic indicators. Robust investment management controls are important tools for achieving these goals. For example, developing accurate cost estimates—an important aspect of investment management— helps an agency evaluate resource requirements and increases the probability of program success. We have issued a cost estimating guide that provides best practices that agencies can use for developing and managing program cost estimates that are comprehensive, well-documented, accurate, and credible, and that provide management with a sound basis for establishing a baseline to formulate budgets and measure program performance. The guide also covers the use of earned value management (EVM), a technique for comparing the value of work accomplished in a given period with the value of the work expected. EVM metrics can alert program managers to potential problems sooner than tracking expenditures alone. Finally, the Recovery Act emphasizes the importance of energy efficiency and green building projects. Applying rigorous investment management controls to the planning and implementation of the data center design will help SSA determine the optimal approach to aligning its initiative with these goals. Because of the large power requirements and the heat generated by the equipment housed in data centers, efficient power and cooling are major concerns, particularly in light of evolving technology and increasing demand for information. To optimize their power and cooling requirements, agencies need to quantify cooling requirements and model these into data center designs. Such considerations affect the choice of locations for a new data center, facility requirements, and even floor space designs. Ways to improve energy efficiencies in data center facilities could include such cost-effective practices as reducing the need for artificial light by maximizing the use of natural light and insulating buildings more efficiently. For example, installing green (planted) roofs can insulate facilities and at the same time absorb carbon dioxide. ● Information security. For any organization that depends on information systems and computer networks to carry out its mission or business, information security is a critical consideration. It is especially important for government agencies like SSA, where maintaining the public’s trust is essential. Information security covers a wide range of controls, including general controls that apply across information systems (such as access controls and contingency planning) and business process application-specific controls to ensure the completeness, accuracy, validity, confidentiality, and availability of data. For the data center initiative, security planning and management will be important from the earliest stages of the project through the whole life cycle. In today’s environment, in which security threats are both domestic and international, operational and physical security is required to sustain the safety and reliability of the data center’s services on a day-to-day basis. An agency needs to have well-established security polices and practices in place and provide periodic assessments to ensure that the information and the facility are protected. Organizations must design and implement controls to detect and prevent unauthorized access to computer resources (e.g., data, programs, equipment, and facilities), thereby protecting them from unauthorized disclosure, modification, and loss. Specific access controls could include means to verify personnel identification and authorization. Further, because a data center is the backbone of an organization’s operations and service delivery, continuity of operations is a key concern. Data centers need to be designed with the ability to efficiently provide consistent processing of operations. Even slight disruptions in power can adversely affect service delivery. Data centers are vulnerable to a variety of service disruptions, including accidental file deletions, network failures, systems malfunctions, and disasters. In the design of a data center, continuity of operations needs to be addressed at every level—including applications, systems, and businesses. An agency needs to articulate, in a well defined plan, how it will process, retrieve, and protect electronically maintained information in the event of minor interruptions or a full- blown disaster. Disaster recovery plans should address all aspects of the recovery, including where to move personnel and how to maintain the business operations. Agency leaders need to prioritize business recovery procedures and to highlight the potential issues in such areas as application availability, data retention, speed of recovery, and network availability. ____________________________________________________________ In summary, given the projected increase in beneficiaries and the exceptional volume of medical data processed, these IT management capabilities will be imperative for SSA to follow as it pursues the complex data center initiative. Mr. Chairman, this completes my prepared statement. I would be pleased to respond to any questions you or other Members of the Subcommittee may have. If you should have any questions about this statement, please contact me at (202) 512-6304 or by e-mail at melvinv@gao.gov. Other individuals who made key contributions to this statement are Barbara Collier, Christie Motley, and Melissa Schermerhorn. This is a work of the U.S. government and is not subject to copyright protection in the United States. The published product may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.

The American Recovery and Reinvestment Act of 2009 (Recovery Act) provides resources to the Social Security Administration (SSA) to help replace its National Computer Center. This data center, which is 30 years old, houses the backbone of the agency's automated operations, which are critical to providing benefits to nearly 55 million people, issuing Social Security cards, and maintaining earnings records. The act makes $500 million available to SSA for the replacement of its National Computer Center and associated information technology (IT) costs. In this testimony, GAO was asked to comment on key IT management capabilities that will be important to the success of SSA's data center initiative. To do so, GAO relied on previously published products, including frameworks that it has developed for analyzing IT management areas. GAO has not performed a detailed examination of SSA's plans for this initiative, so it is not commenting on the agency's progress or making recommendations. For an effort as central to SSA's mission as its planned new data center, effective practices in key IT management areas are essential. For example: (1) Effective strategic planning helps an agency set priorities and decide how best to coordinate activities to achieve its goals. For example, a strategic plan identifying interdependencies among modernization project activities helps ensure that these are understood and managed, so that projects--and thus system solutions--are effectively integrated. Given that the new data center is to form the backbone of SSA's automated operations, it is important that the agency identify goals, resources, and dependencies in the context of its strategic vision. (2) An agency's enterprise architecture describes both its operations and the technology used to carry them out. A blueprint for organizational change, an architecture is defined in models that describe (in business and technology terms) an entity's current operation and planned future operation, as well as a plan for transitioning from one to the other. An enterprise architecture can help optimize SSA's data center initiative by ensuring that its planning and implementation take full account of the business and technology environment. (3) For IT investment management, an agency should follow a portfoliobased approach in which investments are selected, controlled, and monitored from an agencywide perspective. By helping to allocate resources effectively, robust investment management processes can help SSA meet the accountability requirements and align with the goals of the Recovery Act. For example, projects funded under the act are to avoid unnecessary delays and cost overruns and are to achieve specific program outcomes. Investment management is aimed at precisely such goals: for example, accurate cost estimating (an important aspect of investment management) provides a sound basis for establishing a baseline to formulate budgets and measure program performance. Further, the act emphasizes energy efficiency--also a major concern for data centers, which have high power and cooling requirements. Investment management tools are important for evaluating the most cost-effective approaches to energy efficiency. (4) Finally, information security should be considered throughout the planning, development, and implementation of the data center. Security is vital for any organization that depends on information systems and networks to carry out its mission--especially for government agencies like SSA, where maintaining the public's trust is essential. One part of information security management is contingency and continuity of operations planning--vital for a data center that is to be the backbone of SSA's operations and service delivery. Data centers are vulnerable to a variety of service disruptions, including accidental file deletions, network failures, systems malfunctions, and disasters. Accordingly, it is necessary to define plans governing how information will be processed, retrieved, and protected in the event of minor interruptions or a full-blown disaster. These capabilities will be important in helping to ensure that SSA's data center effort is successful and effectively uses Recovery Act funds.

Our review of the pilot test identified several challenges related to pilot planning, data collection, and reporting, which affected the completeness, accuracy, and reliability of the results. DHS did not correct planning shortfalls that we identified in our November 2009 report. We determined that these weaknesses presented a challenge in ensuring that the pilot would yield information needed to inform Congress and the card reader rule and recommended that DHS components implementing the pilot—TSA and USCG—develop an evaluation plan to guide the remainder of the pilot and identify how it would compensate for areas where the TWIC reader pilot would not provide the information needed. DHS agreed with the recommendations; however, while TSA developed a data analysis plan, TSA and USCG reported that they did not develop an evaluation plan with an evaluation methodology or performance standards, as we recommended. The data analysis plan was a positive step because it identified specific data elements to be captured from the pilot for comparison across pilot sites. If accurate data had been collected, adherence to the data analysis plan could have helped yield valid results. However, TSA and the independent test agent did not utilize the data analysis plan. According to officials from the independent test agent, they started to use the data analysis plan but stopped using the plan because they were experiencing difficulty in collecting the required data and TSA directed them to change the reporting approach. TSA officials stated that they directed the independent test agent to change its collection and reporting approach because of TSA’s inability to require or control data collection to the extent required to execute the plan. We identified eight areas where TWIC reader pilot data collection, supporting documentation, and recording weaknesses affected the completeness, accuracy, and reliability of the pilot data. 1. Installed TWIC readers and access control systems could not collect required data on TWIC reader use, and TSA and the independent test agent did not employ effective compensating data collection measures. The TWIC reader pilot test and evaluation master plan recognizes that in some cases, readers or related access control systems at pilot sites may not collect the required test data, potentially requiring additional resources, such as on-site personnel, to monitor and log TWIC card reader use issues. Moreover, such instances were to be addressed as part of the test planning. However, the independent test agent reported challenges in sufficiently documenting reader and system errors. For example, the independent test agent reported that the logs from the TWIC readers and related access control systems were not detailed enough to determine the reason for errors, such as biometric match failure, an expired TWIC card, or that the TWIC was identified as being on the list of revoked credentials. The independent test agent further reported that the inability to determine the reason for errors limited its ability to understand why readers were failing, and thus it was unable to determine whether errors encountered were due to TWIC cards, readers, or users, or some combination thereof. 2. Reported transaction data did not match underlying documentation. A total of 34 pilot site reports were issued by the independent test agent. According to TSA, the pilot site reports were used as the basis for DHS’s report to Congress. We separately requested copies of the 34 pilot site reports from both TSA and the independent test agent. In comparing the reports provided, we found that 31 of the 34 pilot site reports provided to us by TSA did not contain the same information as those provided by the independent test agent. Differences for 27 of the 31 pilot site reports pertained to how pilot site data were characterized, such as the baseline throughput time used to compare against throughput times observed during two phases of testing. However, at two pilot sites, Brownsville and Staten Island Ferry, transaction data reported by the independent test agent did not match the data included in TSA’s reports. Moreover, data in the pilot site reports did not always match data collected by the independent test agent during the pilot. 3. Pilot documentation did not contain complete TWIC reader and access control system characteristics. Pilot documentation did not always identify which TWIC readers or which interface (e.g., contact or contactless interface) the reader used to communicate with the TWIC card during data collection. For example, at one pilot site, two different readers were tested. However, the pilot site report did not identify which data were collected using which reader. 4. TSA and the independent test agent did not record clear baseline data for comparing operational performance at access points with TWIC readers. Baseline data, which were to be collected prior to piloting the use of TWIC with readers, were to be a measure of throughput time, that is, the time required to inspect a TWIC card and complete access-related processes prior to granting entry. However, it is unclear from the documentation whether acquired data were sufficient to reliably identify throughput times at truck, other vehicle, and pedestrian access points, which may vary. 5. TSA and the independent test agent did not collect complete data on malfunctioning TWIC cards. TSA officials observed malfunctioning TWIC cards during the pilot, largely because of broken antennas. If a TWIC with a broken antenna was presented for a contactless read, the reader would not identify that a TWIC had been presented, as the broken antenna would not communicate TWIC information to a contactless reader. In such instances, the reader would not log that an access attempt had been made and failed. 6. Pilot participants did not document instances of denied access. Incomplete data resulted from challenges documenting how to manage individuals with a denied TWIC across pilot sites. Specifically, TSA and the independent test agent did not require pilot participants to document when individuals were granted access based on a visual inspection of the TWIC, or deny the individual access as may be required under future regulation. This is contrary to the TWIC reader pilot test and evaluation master plan, which calls for documenting the number of entrants “rejected” with the TWIC card reader system operational as part of assessing the economic impact. Without such documentation, the pilot sites were not completely measuring the operational impact of using TWIC with readers. 7. TSA and the independent test agent did not collect consistent data on the operational impact of using TWIC cards with readers. TWIC reader pilot testing scenarios included having each individual present his or her TWIC for verification; however, it is unclear whether this actually occurred in practice. For example, at one pilot site, officials noted that during testing, approximately 1 in 10 individuals was required to have his or her TWIC checked while entering the facility because of concerns about causing a traffic backup. Despite noted deviations in test protocols, the reports for these pilot sites do not note that these deviations occurred. Noting deviations in each pilot site report would have provided important perspective by identifying the limitations of the data collected at the pilot site and providing context when comparing the pilot site data with data from other pilot sites. 8. Pilot site records did not contain complete information about installed TWIC readers’ and access control systems’ design. TSA and the independent test agent tested the TWIC readers at each pilot site to ensure they worked before individuals began presenting their TWIC cards to the readers during the pilot. However, the data gathered during the testing were incomplete. For example, 10 of 15 sites tested readers for which no record of system design characteristics were recorded. In addition, pilot reader information was identified for 4 pilot sites but did not identify the specific readers or associated software tested. According to TSA, a variety of challenges prevented TSA and the independent test agent from collecting pilot data in a complete and consistent fashion. Among the challenges noted by TSA, (1) pilot participation was voluntary, which allowed pilot sites to stop participation at any time or not adhere to established testing and data collection protocols; (2) the independent test agent did not correctly and completely collect and record pilot data; (3) systems in place during the pilot did not record all required data, including information on failed TWIC card reads and the reasons for the failure; and (4) prior to pilot testing, officials did not expect to confront problems with nonfunctioning TWIC cards. Additionally, TSA noted that it lacked the authority to compel pilot sites to collect data in a way that would have been in compliance with federal standards. In addition to these challenges, the independent test agent identified the lack of a database to track and analyze all pilot data in a consistent manner as an additional challenge to data collection and reporting. The independent test agent, however, noted that all data collection plans and resulting data representation were ultimately approved by TSA and USCG. As required by the SAFE Port Act and the Coast Guard Authorization Act of 2010, DHS’s report to Congress on the TWIC reader pilot presented several findings with respect to technical and operational aspects of implementing TWIC technologies in the maritime environment. However, DHS’s reported findings were not always supported by the pilot data, or were based on incomplete or unreliable data, thus limiting the report’s usefulness in informing Congress about the results of the TWIC reader pilot. For example, reported entry times into facilities were not based on data collected at pilot sites as intended. Further, the report concluded that TWIC cards and readers provide a critical layer of port security, but data were not collected to support this conclusion. Because of the number of concerns that we identified with the TWIC pilot, in our March 13, 2013, draft report to DHS, we recommended that DHS not use the pilot data to inform the upcoming TWIC card reader rule. However, after receiving the draft that we sent to DHS for comment, on March 22, 2013, USCG published the TWIC card reader NPRM, which included results from the TWIC card reader pilot. We subsequently removed the recommendation from our final report, given that USCG had moved forward with issuing the NPRM and had incorporated the pilot results into the proposed rulemaking. In its official comments on our report, DHS asserted that some of the perceived data anomalies we cited were not significant to the conclusions TSA reached during the pilot and that the pilot report was only one of multiple sources of information available to USCG in drafting the TWIC reader NPRM. We recognize that USCG had multiple sources of information available to it when drafting the proposed rule; however, the pilot was used as an important basis for informing the development of the NPRM, and the issues and concerns that we identified remain valid. Given that the results of the pilot are unreliable for informing the TWIC card reader rule on the technology and operational impacts of using TWIC cards with readers, we recommended that Congress consider repealing the requirement that the Secretary of Homeland Security promulgate final regulations that require the deployment of card readers that are consistent with the findings of the pilot program, and that Congress should consider requiring that the Secretary of Homeland Security complete an assessment that evaluates the effectiveness of using TWIC with readers for enhancing port security. This would be consistent with the recommendation that we made in our May 2011 report. These results could then be used to promulgate a final regulation as appropriate. Given DHS’s challenges in implementing TWIC over the past decade, at a minimum, the assessment should include a comprehensive comparison of alternative credentialing approaches, which might include a more decentralized approach, for achieving TWIC program goals. Chairman Miller, Ranking Member Jackson-Lee, and members of the subcommittee, this concludes my prepared statement. I would be happy to respond to any questions that you may have. For questions about this statement, please contact Steve Lord at (202) 512-4379 or lords@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this statement. Individuals making key contributions to this statement include Dave Bruno, Assistant Director; Joseph P. Cruz; and James Lawson. Key contributors for the previous work that this testimony is based on are listed within each individual product. This is a work of the U.S. government and is not subject to copyright protection in the United States. The published product may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.

This testimony discusses GAO's recent work examining the Department of Homeland Security's (DHS) Transportation Worker Identification Credential (TWIC) program. Ports, waterways, and vessels handle billions of dollars in cargo annually, and an attack on our nation's maritime transportation system could have serious consequences. Maritime workers, including longshoremen, mechanics, truck drivers, and merchant mariners, access secure areas of the nation's estimated 16,400 maritime-related transportation facilities and vessels, such as cargo container and cruise ship terminals, each day while performing their jobs. This statement today highlights the key findings of GAO's May 8, 2013, report on the TWIC program, which addressed the extent to which the results from the TWIC reader pilot were sufficiently complete, accurate, and reliable for informing Congress and the TWIC card reader rule.

Links to basic static maps (non-interactive, printable image files) of Iraq and the Middle East region are provided below. Map resources are arranged in alphabetical order, with the exception of the Perry-Castañeda Library website. The Perry-Castañeda Library website description has been placed first because of the exceptional breadth of Iraq maps and links to Iraq maps offered by the library's website. Perry-Castañeda Library Map Collection: Iraq Maps http://www.lib.utexas.edu/maps/iraq.html The University of Texas Website offers a variety of maps, including many maps from the CIA. It also provides some historical maps as well as links to Iraq maps on other websites. Center for Strategic and International Studies http://csis.org/files/publication/091001_iraq_war_update.pdf The Center for Strategic and International Studies report, Recent Trends in the Iraq War: Maps and Graphs , includes such maps as "Key Areas of Shi'ite Extremist Activity" (page 3), and "Ethno-Sectarian Violence, 2006-2009" (page 15). Central Intelligence Agency Maps https://www.cia.gov/library/publications/cia-maps-publications/Iraq.html The Central Intelligence Agency (CIA) creates maps of various parts of the world and makes some available for viewing by the general public on the Internet. Purchase information is provided at this site. Global Security http://www.globalsecurity.org/military/world/iraq/maps.htm Global Security is an online resource that provides background information and news on defense, space, intelligence, WMD, and homeland security issues. Maps found on this website cover administrative, demographic, political, and military topics (including many maps from Department of Defense briefings in 2003 of early Operation Iraqi Freedom military operations). United Nations (U.N.) Iraq: Web Portal for U.N. Agencies Working in Iraq http://www.uniraq.org/library/maps.asp These U.N. maps are arranged into two sections—Geographic and Thematic—and can be searched for specific attributes through the Map Catalogue. Measuring Security and Stability in Iraq http://www.defense.gov/pubs/ This Department of Defense source ceased publishing the quarterly reports, "Measuring Security and Stability in Iraq" after June 2010, but these reports can still provide historical data. Each of the "Measuring Security and Stability in Iraq" reports contain maps showing the public views of security in Iraq and the average daily hours of electrical power per province. New York Times http://www.nytimes.com/interactive/2007/09/06/world/middleeast/20070907_BUILDUP_MAIN_GRAPHIC.html# The New York Times has put together an interactive map of post-surge Baghdad neighborhoods, with information on the makeup and outlook of various neighborhoods. ReliefWeb http://www.reliefweb.int/rw/rwb.nsf/doc404?OpenForm&cc=irq&rc=3 The Relief website is a project of the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) and offers information and maps on areas of the world requiring humanitarian relief. Maps of Iraq located on this website, dated 2001 through 2010, include "Return to Iraq: 2009-2010" (a map of individuals returning to Iraq after displacement) and "Projects of Japan ODA [Official Development Assistance] Loans in Iraq (as of 31 Mar 2010)." Report to Congress on the Situation in Iraq , September 2007 http://foreignaffairs.house.gov/110/pet091007.pdf General Petraeus's September 2007 report to Congress includes a number of maps of Iraq, including "State of Al Qaeda Iraq" on page 20. Special Inspector General for Iraq Reconstruction (SIGIR) http://www.sigir.mil/publications/quarterlyreports/index.html SIGIR provides quarterly and semi-annual publically available reports directly to the U.S. Congress. The April 2010 report includes such maps as "Selected Iraqi Political Protests 2/2011 – 4/2011," "Status of ISPO/USACE Projects, as of 3/31/2011," and "Significant Security Incidents by Region: January 1, 2010 to March 31, 2010" (found below). United Nations http://www.un.org/Depts/Cartographic/map/profile/iraq.pdf This website provides the UN reference map of Iraq in a one-page PDF.

This report identifies online sources for maps of Iraq, including government, library, and organizational websites. These sources have been selected on the basis of their authoritativeness and the range, quality, and uniqueness of the maps they provide. Some sources provide up-to-the-minute maps; others have been selected for their collection of historical maps. Maps of Iraq, the Middle East, significant security incidents in Iraq, and refugees returning to Iraq have been provided. This report will be updated as needed.

The Supplemental Security Income (SSI) program, authorized by Title XVI of the Social Security Act, is a means-tested income assistance program financed from general tax revenues. Under SSI, disabled, blind, or aged individuals who have low incomes and limited resources are eligible for benefits regardless of their work histories. In December 2013, more than 8.3 million people received SSI benefits. In that month, these beneficiaries received an average cash benefit of $529.15 and the program paid out over $4.6 billion in federally administered SSI benefits. All but four states and the Commonwealth of the Northern Mariana Islands supplement the federal SSI benefit with additional payments, which may be made directly by the state or combined with the federal payment. For SSI recipients who live in another person's household and receive in-kind support and maintenance, the federal benefit rate is reduced by one-third (to about $481 per month for an individual in 2014). Individuals who reside in public institutions throughout any given month are generally not eligible for SSI. A cost of living adjustment (COLA) is applied annually in January using the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) to reflect changes in the cost of living. After a 1.7% COLA adjustment in 2013, a 1.5% COLA was applied for 2014. Most SSI recipients are also eligible for Medicaid and the Supplemental Nutrition Assistance Program (SNAP) benefits. In some cases, the income and resources of non-recipients are counted in determining SSI eligibility and payment amounts. Individuals and couples must have limited assets or resources to qualify for SSI benefits. Resources are defined by regulation as "cash or other liquid assets or any real or personal property that an individual (or spouse, if any) owns and could convert to cash to be used for his or her support and maintenance." The countable resource limit for SSI eligibility is $2,000 for individuals and $3,000 for couples. These limits are set by law, are not indexed for inflation, and have been at their current levels since 1989. Two types of income are considered for purposes of determining SSI eligibility and payment amounts: earned and unearned income. Earned income includes wages, net earnings from self-employment, and earnings from services performed. Most other income not derived from current work (e.g., Social Security benefits, other government and private pensions, veterans' benefits, workers' compensation, and in-kind support and maintenance) is considered "unearned." In-kind support and maintenance includes food, clothing, or shelter that is given to an individual. If an individual (or couple) meets all other SSI eligibility requirements (including the resource test described below), their monthly SSI payment equals the federal benefit rate minus their countable income. Generally, assets held in a trust that could be used for the benefit of an individual are considered a resource for SSI purposes unless there is no circumstance under which a payment from the trust could ever be made for the benefit of the individual or the individual's spouse. The Foster Care Independence Act of 1999 ( P.L. 106-169 ) changed the status of irrevocable trusts for SSI benefit calculations. Before its passage, assets placed in irrevocable trusts were not considered assets when determining benefit eligibility. P.L. 106-169 changed SSI eligibility requirements so that the value of income and resources from both irrevocable and revocable trusts are considered in determining eligibility and payment amounts. However, the Commissioner of Social Security may waive this provision if it would cause undue hardship for certain individuals. When applying for SSI, an individual must provide documentation that the Social Security Administration uses to determine income and resource eligibility, such as a Social Security card or record of a Social Security number; a birth certificate or other proof of age; a copy of a mortgage or lease and landlord's name; payroll slips, bank records, insurance policies, car registration, and other income information; medical information if applying for disability; and proof of immigration status (if not a U.S. citizen). Not all resources are counted for the purposes of determining SSI eligibility. Excluded resources include an individual's home, a car used for essential transportation (or, if not essential, up to $4,500 of its current value), property essential to income-producing activity, household goods and personal effects totaling $2,000 or less, and life insurance policies with a combined face value of $1,500 or less. A certain amount of monthly earned and unearned income is excluded from SSI eligibility and benefit determinations. Monthly unearned income exclusions include a general income exclusion of $20 per month that applies to non needs-based income. Monthly earned income exclusions include any unused portion of the $20 general income exclusion, the first $65 of earnings, one-half of earnings over $65, and impairment-related expenses for blind and disabled workers. Laws governing several federal benefit programs prohibit the SSA from counting benefits paid under these programs as resources and include food stamps, housing and energy assistance, state and local needs-based assistance, in-kind support and maintenance from nonprofit organizations, and student grants and scholarships used for educational expenses. In addition, the Social Security Act and federal regulations provide various types of resource exclusions that allow individuals or couples to own certain assets and not have them counted against their $2,000 or $3,000 resource limit. The following section of this report will detail the four types of accounts that a person or couple may deposit money and not have that money counted as a resource for the purposes of determining their SSI eligibility. Money set aside by an SSI recipient to pay for his or her burial expenses can be excluded from the SSI resource limits. Each person may set aside up to $1,500 for burial expenses, and these expenses must be separately identifiable from other assets and money held. A burial plot owned by an individual or a couple is not considered a resource and its value is not counted against the $2,000 or $3,000 resource limit. There are two cases in which the amount of the burial expense exclusion may be reduced. First, the total amount permitted to be excluded is reduced by the face value of all life insurance policies held by the individual or his or her spouse. The face value of a policy is the amount the insurer agrees to pay the beneficiary upon the death of the insured. Second, the excluded amount of burial expenses is reduced by the total amount of money held in an irrevocable trust (commonly called an irrevocable burial trust) available to meet the burial expenses of the individual or his or her spouse. A Plan for Achieving Self-Support (PASS) is an individual plan for employment designed by an SSI beneficiary. An SSI beneficiary designs his or her own PASS, usually with the assistance of a state Vocational Rehabilitation agency, disability service organization, or Ticket to Work Employment Network. The plan must be submitted in writing to the SSA and must be approved by a special network of SSA employees called the PASS Cadre. A PASS must include a specific goal for employment, such as a specific job type desired or a plan for setting up a small business. In addition, a PASS must include a timeline for achieving the employment goal. The PASS must also include a list of any goods, such as assistive devices or job-specific tools, or services, such as schooling, that will be needed by the beneficiary to achieve his or her goal and must include a timeline for the use of these goods or services and their cost. Resources included in an approved PASS are not counted against the SSI resource limits. There is no limit to the amount of resources that can be excluded as part of a PASS and these resources can include money set aside to pay for elements of the PASS such as training or items purchased as part of the PASS such as assistive technology devices. If a beneficiary does not fulfill the terms of the PASS, then these resources can be counted and he or she may lose SSI eligibility and be required to reimburse the SSA for benefits paid after eligibility was lost. Individual Development Accounts (IDAs) are matched savings accounts that allow families and persons with low incomes to set aside money for education, the purchase of a home, or the creation of a business. An individual may place money from his or her earnings into an IDA and have that amount of money matched by the state with funds from the state's Temporary Assistance for Needy Families (TANF) block grant. In addition, under the provisions of the Assets for Independence Act, P.L. 105-285 , nonprofit organizations, and state, local, or tribal governments may compete for grants to fund IDAs for low-income households. IDAs funded through this grant process are often referred to as Demonstration Project IDAs. Money saved in a TANF IDA or a Demonstration Project IDA, including the state contribution and any interest earned, is not counted as a resource for the purposes of determining SSI eligibility. There is no limit to the amount of money in an IDA that can be excluded from the SSI resource calculation. However, there are limits to the amounts states and other entities can contribute to IDAs. When a child SSI beneficiary is owed back SSI benefits of more than six months, his or her representative payee is required to place those benefits in a dedicated account at a financial institution. This dedicated account must be in the child's name and cannot be invested in stocks, bonds, or other types of securities. Any money placed in the account and any interest earned on the account is the property of the child. The representative payee may use the money from the dedicated account for the medical care or education and training needs of the child. In addition, money from this account can be used for personal needs assistance, special equipment, housing modifications, or therapy for the child based on his or her disability or for other items and services for the child approved in advance by the SSA. Money from a dedicated account cannot be used for the daily expenses, food, clothing, or shelter of the child. The representative payee is responsible for keeping records and receipts of all deposits and expenditures and is liable to the SSA for any misuse of money in a dedicated account. Money in a dedicated account for children is not counted as a resource for the purposes of determining the child's SSI eligibility or the SSI eligibility of the representative payee.

The Supplemental Security Income (SSI) program, authorized by Title XVI of the Social Security Act, is a means-tested income assistance program financed from general tax revenues. Under SSI, disabled, blind, or aged individuals who have low incomes and limited resources are eligible for benefits regardless of their work histories. In December 2013, more than 8.3 million individuals received SSI benefits, receiving monthly payments of $529.15 on average. The SSI program paid out over $4.6 billion in federally administered benefits that month. All but four states and the Commonwealth of the Northern Mariana Islands supplement the federal SSI benefit with additional payments, which may be made directly by the state or combined with the federal payment. As a means tested program, SSI places a limit on the assets or resources of its beneficiaries. However, there are four types of accounts that represent an important part of the overall SSI program and can be used by SSI beneficiaries to build assets or plan for the future, including (1) money placed into burial accounts, (2) money used as part of a Plan for Achieving Self-Support (PASS), (3) money placed in Individual Development Accounts (IDAs), and (4) money placed in dedicated accounts for children. For the purposes of determining SSI eligibility these accounts are not counted as resources and can be used by beneficiaries without affecting their eligibility. This report provides an overview of income and resource limits for SSI benefit determinations as well as the four types of accounts exempt from the SSI resource limitations.

The First Amendment of the U.S. Constitution prohibits the government from establishing a religion and guarantees citizens the right to freely exercise their religion. The U.S. Supreme Court has clarified the scope of these broad guarantees. This report provides an overview of the governing principles of the law of church and state. It explains the legal requirements for challenges under the Establishment Clause and Free Exercise Clause and the standards used to evaluate such challenges. The report includes current interpretations of these clauses and summarizes related statutes ( P.L. 103-141 , the Religious Freedom Restoration Act, or RFRA, and P.L. 106-274 , the Religious Land Use and Institutionalized Persons Act, or RLUIPA). Alleged violations under the religion clauses must meet two threshold requirements: government action and standing. In order to bring a claim to enforce rights provided by the religion clauses, an individual must show that government action has interfered with those rights. In other words, actions by private actors cannot violate the religion clauses. The individual must also have standing. Cases brought under the religion clauses are governed by general standing rules. Standing is the legal term used to indicate that the person has an individualized interest that has actually been harmed under the law or by its application. For instance, a person who has been barred by the government from attending religious services or required by law to attend religious services would have standing because the individual has been individually affected by the government's action. For some Establishment Clause cases, the Court has recognized special exceptions to the general rules for standing. Generally, taxpayers do not have standing to sue the government on the grounds that their tax money has been spent in a manner that they consider improper. The Court has recognized an exception to this rule, known as the Flast exception. Under the Flast exception, taxpayers may raise Establishment Clause challenges of actions taken by Congress under Article I's Taxing and Spending Clause. The Court has maintained its narrow interpretation of this exception, refusing to extend it to permit taxpayer lawsuits challenging executive actions or taxpayer lawsuits challenging actions taken under powers other than taxing and spending. The Establishment Clause provides for separation of church and state, but advocates differ as to the extent to which it requires such separation. Some argue that government and religion operate best if each conducts its business independently of the other. Others argue that the drafters of the Constitution did not intend strict separation, and strict separation has not been practiced throughout American history. The primary test used to evaluate claims under the Establishment Clause is known as the tripartite test, often referred to as the Lemon test. Under this test, a law (1) must have a secular purpose, (2) must have a primary effect that neither advances nor inhibits religion, and (3) must not lead to excessive entanglement with religion. Although the Lemon test is the one commonly employed by the Court, it has been criticized by some Justices who have applied the test in different ways. One application of the Lemon test focuses on whether the government has endorsed religion. The government is prohibited "from making adherence to a religion relevant in any way to a person's standing in the political community." This application of the Lemon test forbids "government endorsement or disapproval of religion," noting that "endorsement sends a message to nonadherents that they are outsiders ... and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message." Another application of the Lemon test focuses on neutrality as the governing principle in Establishment Clause challenges. Under this interpretation, the essential element in evaluating challenges under the Lemon test is whether or not the government act is neutral between religions and between religion and non-religion. In addition to the Lemon test, the Court has used two other tests to evaluate Establishment Clause claims. The coercion test forbids the government from acting in a way that may coerce support or participation in religious practices. This test is typically invoked in the school setting because of the impressionability of those affected by possible acts of establishment. Another test permits government acts that involve religion if the Court finds that the religious element has played a part in the history of the nation, or as the Court has phrased it, has become "part of the fabric of our society." When faced with issues regarding religious speech, the Court may also encounter free speech claims under the First Amendment. As a general rule, the government may not limit religious speech without a compelling reason or in a manner that is not viewpoint-neutral, but it may impose reasonable time, place, and manner restrictions. The Court has held that regulations that broadly prohibit religious speech (e.g., prohibiting First Amendment activities in airports, including a ban on distribution of religious literature, or requiring permits for all door-to-door canvassing, including religious proselytizing) cannot be held constitutional. The Court has also held that privately donated monuments displayed in a public park are a form of government speech and therefore are not limited by the First Amendment's Free Speech Clause, but are limited by other laws such as the Establishment Clause. The Court has held it unconstitutional to deny religious groups access to public facilities, including public schools, if the same facilities are made available at similar times to nonreligious groups. Such circumstances treat religious groups differently in a manner that suggests disapproval of religion, in violation of the Establishment Clause. The Court interpreted this requirement of equal access to include access to benefits offered by public institutions when it required a public university to provide student activity funds to student groups regardless of the religious content of the group's activities. The Court has applied a variety of tests in determining the constitutionality of religious displays on public property, and its analysis in such cases is very fact-specific. Generally, the Court will uphold displays that are set in a diversified religious context. For example, a display that included Christian, Jewish, and nonreligious holiday elements at a government building has been held constitutional, but a display of a Christian symbol by itself has been held unconstitutional. The Court generally also will uphold religious displays that are given historical secular context. For example, the Court has upheld a display of the Ten Commandments placed among dozens of other secular historical monuments on the grounds of a state capitol for several decades, but held a display that included the Ten Commandments among other religious items unconstitutional. The Court has addressed the issue of prayer in schools by holding school-sponsored religious activities unconstitutional. The First Amendment prohibits the legislature, teachers, and school districts from initiating prayer during the school day or at school-sponsored events. The Court has also struck down mandatory moments of silence if those moments are required for the purpose of voluntary prayer. It also has held mandatory displays of the Ten Commandments in schools and prohibitions on teaching evolution to be unconstitutional. The permissibility of government aid to religious organizations generally depends on the purpose for which the aid is distributed and the manner in which it is distributed. Generally, the government may not provide direct aid to religious organizations that use the aid for religious purposes, but the Court has allowed aid for non-religious purposes. The Supreme Court currently interprets the Establishment Clause to permit public school teachers to provide remedial and enrichment educational services to sectarian school children on the premises of the schools they attend. It has held the use of federal funds to provide instructional materials and equipment to public and private religious schools to be constitutional. The Court appears to have abandoned a distinction it had previously recognized that prohibited public aid to "pervasively sectarian" organizations, instead suggesting that the purpose of the aid and the types of programs that it was used to fund are the critical factor in its analysis, not the type of organization that received and administered the public funds. If government aid is distributed in an indirect manner, that is, if an individual uses funds received from a federal agency to pay for some sectarian service, the Court has held the aid to be constitutional when the distribution reflects the individual's choice. In other words, if the individual can be seen as intervening in the chain of distribution, the aid is considered to be the individual's, rather than the government's, thereby negating a threat of establishment. The Court has upheld aid programs in which the aid was distributed to the initial recipients on a religion-neutral basis and the initial recipients had a "genuine choice among options public and private, secular and religious." For much of the second half of the 20 th century, the Court had held that religious interests were to be considered of paramount importance in the constitutional scheme. Under this interpretation, any government act that infringed on religious practices of citizens had to serve a compelling state interest. In 1990, the Supreme Court significantly altered its interpretation of the Free Exercise Clause. It abandoned the compelling state interest test (a strict scrutiny standard) with respect to neutral statutes. The Court held that the Free Exercise Clause never "relieve[s] an individual of the obligation to comply with a valid and neutral law of general applicability." The constitutional strict scrutiny standard was not abandoned entirely, though. It still applies to cases that involve religious claims for exemption in programs allowing for individualized assessments and cases that involve deliberate governmental targeting of religion. A standard required by the Constitution is a baseline, which Congress may raise but can never lower. In response to the Court's reinterpretation of the standard necessary under the Free Exercise Clause, Congress brought back the compelling interest test by statute. Congress sought to broaden the legal protection afforded religious exercise with the Religious Freedom Restoration Act (RFRA) of 1993, which prohibited government action that has the effect of substantially burdening religious practice. RFRA provided that a statute or regulation of general applicability could lawfully burden a person's exercise of religion only if it were shown to further a compelling governmental interest and to be the least restrictive means of furthering that interest. This statutory requirement for any law, including those of general applicability not aimed at religious practice, would supplement the constitutional protection, which prohibits only government action that intentionally burdens the exercise of religion. RFRA, when originally passed, applied to federal, state, and local government actions. In 1997, the Court held that, because of federalism, Congress lacked the constitutional power to impose such a sweeping requirement on states and localities. Therefore, the strict scrutiny standard imposed by RFRA applies only to actions of the federal government. Congress responded to the inapplicability of RFRA to state and local government by enacting the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). To avoid the federalism problems presented by RFRA, Congress limited the scope of RLUIPA's application. RLUIPA applies only where the burden could be linked to situations involving Congress's spending power or commerce power, or to situations involving land use in which individualized assessments are involved. Thus, RLUIPA provides a statutory strict scrutiny test for state and local zoning and landmarking laws that impose a substantial burden on an individual's or institution's exercise of religion and on state and local actions that impair the religious practices of individuals in public institutions such as prisons, mental hospitals, and nursing homes.

The First Amendment of the U.S. Constitution prohibits the government from establishing a religion and guarantees citizens the right to freely exercise their religion. The U.S. Supreme Court has clarified the scope of these broad guarantees. This report provides an overview of the governing principles of the law of church and state. It explains the legal requirements for challenges under the Establishment Clause and Free Exercise Clause and the standards used to evaluate such challenges. The report includes current interpretations of these clauses and summarizes related statutes (P.L. 103-141, the Religious Freedom Restoration Act, or RFRA, and P.L. 106-274, the Religious Land Use and Institutionalized Persons Act, or RLUIPA).

The TANF block grant is a fixed amount of funding paid to each state based on a formula. States design and administer benefits and services funded by TANF and have wide latitude in their use of block grant funds. States are required to share a portion of the cost of TANF benefits and services by expending some of their own funds on TANF-related benefits and services through a "maintenance of effort" requirement. TANF is the major federal-state program providing cash assistance to needy families with children. While federal TANF grants help fund this cash assistance, states determine eligibility rules and benefit amounts which vary greatly among the states. There are no federal rules regarding eligibility and benefits for ongoing cash welfare, other than the requirement that it be paid to families with children that meet a financial test of economic need. Table 1 provides some basic information on cash welfare benefits in the states affected by Hurricane Katrina and some of their neighboring states. It shows both the maximum monthly benefit amount paid to a family of three as of January 2005 and the average number of families that received cash assistance in June 2006. The maximum monthly benefit is generally the amount paid to a family with no other income sources. TANF cash assistance benefits in this region are relatively low compared with those paid in other regions and states. For example, the comparable maximum cash welfare grant paid in New York City in January 2005 was $691 per month and the maximum cash welfare grant paid to a family of three in the urban areas of California was $723 per month. TANF imposes some requirements on states with respect to families receiving cash assistance. The purpose of the requirements is to ensure that receipt of cash welfare is temporary and to encourage movement off the rolls and into work. TANF requires that a specified percentage of its caseload be engaged in work or job preparation activities, limits federally-funded assistance to five years, and requires that cash assistance recipients cooperate with child support enforcement rules (establish paternity and assign child support to the state). TANF also gives authority to states to pay "emergency assistance" benefits. Emergency benefits are those that: are considered "nonrecurrent, short-term benefits;" are designed to deal with a specific crisis situation or episode of need; are not intended to meet recurrent or ongoing needs; and will not extend beyond four months. Families receiving such emergency benefits are not subject to the same requirements (i.e, work requirements and time limits) as are families that receive cash assistance. As with cash welfare, states determine eligibility for and the scope of emergency benefits provided to low-income families with children. In addition to ongoing cash welfare and emergency aid, TANF can fund a wide range of other social services for low-income families with children, such as child care, transportation aid, family preservation and support services, and similar types of services. As with ongoing cash welfare and emergency assistance, states determine eligibility and the scope of benefits provided to needy families with children. Welfare programs are not usually associated with responses to natural disasters. However, the scope of Hurricane Katrina's displacement of families, the strain placed on human service agencies responding to this displacement, plus the flexibility allowed states to design programs under TANF, made the block grant a potential source of help to the victims of this disaster. While TANF funding is flexible and provides states with options to help needy families, the legislation passed by Congress and signed by the President addressed some policy considerations. TANF block grants are fixed amounts determined by formula in federal law, and absent federal legislation benefits paid by a host state to evacuees would come from that host state's TANF allocation. P.L. 109-68 allowed states to draw from the TANF contingency fund to provide 100% federal funding for certain benefits paid to families that evacuated hurricane-damaged areas. Funding was capped at 20% per year of the host state's annual block grant. In FY2006, a total of $48.4 million was drawn from the TANF contingency fund to provide short-term benefits for evacuees. Table 2 shows TANF contingency fund grants for evacuees of hurricane-damaged areas. The fixed TANF block grants do not adjust for changes in the circumstances of a state. Though TANF did contemplate extra funding in the case of a recession, it has no mechanism to increase funding in the event of a natural disaster. P.L. 109-68 provided extra funding for FY2005 and FY2006 for the three hurricane-damaged states of Alabama, Louisiana, and Mississippi, an extra 20% of the damaged state's block grant. TANF recipients who receive ongoing cash assistance are subject to certain requirements, such as time limits and work requirements. For FY2005 and FY2006, P.L. 109-68 waived penalties on the states for failure to meet state work requirements as well as the penalty for having more than 20% of its caseload on the rolls for more than five years (the TANF time limit). It also gives the authority to states to provide short-term, nonrecurring benefits for evacuee families receiving benefits in other states and families in hurricane damaged states, to meet subsistence needs and not have that time count for purposes of work requirements or time limits.

The Temporary Assistance for Needy Families (TANF) block grant provides grants to states to help them fund a wide variety of benefits and services to low-income families with children. TANF is best known for funding cash welfare benefits for families with children, but the block grant may also fund other benefits and services such as emergency payments, child care, transportation assistance, and other social services. Welfare programs are not usually associated with responses to natural disasters. However, the scope of Hurricane Katrina's displacement of families, the strain placed on responding human service agencies, plus the flexibility allowed states to design programs under TANF, made the block grant a potential source of help to the victims of this disaster. P.L. 109-68 provided some additional TANF funds and waived certain program requirements for states affected by Katrina. Under that act, all states were provided capped funding to aid evacuees from hurricane-damaged states. This report will be not be updated.

The Foreign Intelligence Surveillance Act of 1978 (FISA), P.L. 95-511 , 50 U.S.C. § 1801 et seq., as amended, provides a statutory framework for the U.S. government to engage in electronic surveillance and physical searches to obtain foreign intelligence information. It also provides a statutory structure for the installation and use of pen registers and trap and trace devices for use in federal investigations to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities. Such an investigation of a U.S. person may not be conducted solely on the basis of activities protected by the First Amendment to the Constitution. In addition, FISA provides statutory authority for the Director of the Federal Bureau of Investigation (FBI) or his designee to seek a U.S. Foreign Intelligence Surveillance Court (FISC) order authorizing the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities. Again, such an investigation of a U.S. person may not conducted solely on the basis of First Amendment-protected activities. A production order for tangible things may be accompanied by a nondisclosure order. Under Section 501(d) of FISA, 50 U.S.C. § 1861(d), no person shall disclose to any other person that the FBI has sought or obtained tangible things pursuant to an order under this section, other than to those persons to whom disclosure is necessary to comply with such order, an attorney to obtain legal advice or assistance with respect to the production of things in response to the order, or other persons as permitted by the Director of the FBI or the designee of the Director. A person to whom a disclosure is made is also subject to the nondisclosure requirements. Any person making or intending to make a disclosure to a person to whom disclosure is necessary to comply with the order or to whom disclosure is permitted by the Director of the FBI or his designee must, at the request of the Director or his designee, identify the person to whom disclosure is to be or has been made. With limited exceptions, electronic surveillance and physical searches may be conducted under FISA pursuant to court orders issued by a judge of the FISC, and pen registers and trap and trace devices may be installed and used pursuant to the order of a FISC judge or a U.S. Magistrate Judge authorized to act in that judge's behalf. In all instances in which the production of any tangible thing is required under FISA, an order from a FISC judge or a U.S. Magistrate Judge authorized to act in the judge's behalf must be obtained. Appeals from the denial of applications for FISC orders approving electronic surveillance, physical search, or production of tangible things may be made by the U.S. government to the U.S. Foreign Intelligence Court of Review (Court of Review). If the denial of an application is upheld by the Court of Review, a petition for certiorari may be filed to the U.S. Supreme Court. This report discusses the creation and structure of the Foreign Intelligence Surveillance Court and the Foreign Intelligence Court of Review and their respective jurisdictions. Section 103 of the Foreign Intelligence Surveillance Act, as amended, 50 U.S.C. § 1803, establishes the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review. The FISC is composed of 11 U.S. district court judges publicly designated by the Chief Justice of the United States from seven circuits, at least three of whom must reside within 20 miles of the District of Columbia. The Chief Justice publicly designates one of the FISC judges to be presiding judge. Although there is a procedure for the publication of FISC opinions, such publication is extremely rare. Only one opinion has been published since the court's inception in 1978, In re All Matters Submitted to the Foreign Intelligence Surveillance Court , 218 F. Supp. 2d 611 (U.S. Foreign Intell. Surveil. Ct. 2002). Under Foreign Intelligence Surveillance Court Rule 5(c), [o]n request by a Judge, the Presiding Judge, after consulting with other Judges of the Court, may direct that an Opinion be published. Before publications, the Opinion must be reviewed by the Executive Branch and redacted, as necessary, to ensure that properly classified information is appropriately protected pursuant to Executive Order 12958 as amended by Executive Order 13292 (or its successor). Three of the FISC judges who reside within 20 miles of the District of Columbia, or, if all of those judges are unavailable, other FISC judges designated by the presiding judge of the FISC, comprise a petition review pool that has jurisdiction to review petitions filed pursuant to subsection 501(f)(1) of FISA, 50 U.S.C. § 1861(f)(1), to challenge a production order for tangible things in a foreign intelligence, international terrorism, or clandestine intelligence activities investigation under section 501 of FISA, or a nondisclosure order imposed in connection with such a production order. The Court of Review is composed of three judges publicly designated by the Chief Justice from the United States district courts or courts of appeals. The Chief Justice also publicly designates one of the three judges as the presiding judge of the court. Only one opinion has been published by the Court of Review, In re Sealed Case , 310 F.3d 717 (U.S. Foreign Intell. Surveil. Ct. Rev. 2002), which is the first opinion the court has issued. Each FISC and Court of Review judge serves for a maximum of seven years and is not eligible for redesignation. The FISC has jurisdiction to hear applications for and to grant court orders approving electronic surveillance or physical searches anywhere in the United States to obtain foreign intelligence information under FISA. No FISC judge may hear an application for electronic surveillance or a physical search under FISA that has been denied previously by another FISC judge. In general, such applications are either granted, granted as modified, or denied. If a FISC judge denies an application for an order authorizing electronic surveillance under FISA, such judge shall provide immediately for the record a written statement of each reason for his or her decision and, on motion of the United States, the record shall be transmitted, under seal, to the Court of Review. Proceedings in the FISC, conducted pursuant to procedures adopted under subsection 103(f)(1) of FISA, 50 U.S.C. § 1803(f)(1), and proceedings of the Court of Review, are to be conducted as expeditiously as possible. The record of such proceedings, including applications made and orders granted, must be maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of National Intelligence. Either a FISC judge or a U.S. Magistrate Judge publicly designated by the Chief Justice to act on behalf of such judge may hear applications for and grant orders approving installation and use of pen registers and trap and trace devices for an investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a U.S. person is not conducted solely on the basis of activities protected by the First Amendment to the Constitution. As in the case of pen registers and trap and trace devices, either a FISC judge or a U.S. Magistrate Judge publicly designated by the Chief Justice to act on behalf of such judge may hear applications for and grant orders approving production of any tangible thing for an investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a U.S. person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution. A person who receives a production order may challenge that order by filing a petition with the petition review pool created by section 103(e) of FISA, 50 U.S.C. § 1803(e). The recipient of a production order must wait at least a year before challenging the nondisclosure order imposed in connection with that production order by filing a petition with the petition review pool to modify or set aside the nondisclosure order. If the judge denies a petition to modify or set aside a nondisclosure order, the recipient of such order must wait at least another year before filing another such petition with respect to such nondisclosure order. Any production or nondisclosure order not explicitly modified or set aside remains in full effect. Judicial proceedings under this subsection are conducted under the Procedures for Review of Petitions filed pursuant to Section 501(f) of the Foreign Intelligence Surveillance Act of 1978, as Amended, and are to be concluded as expeditiously as possible. The record of proceedings, including petitions filed, orders granted, and statements of reasons for decision, are maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence. All petitions under this subsection are filed under seal. In any proceedings under this subsection, the court shall, upon request of the government, review ex parte and in camera any government submission, or portions thereof, that may include classified information. The procedure for challenging production or nondisclosure orders before the petition review pool of the FISC contrasts with that applicable to motions to suppress information obtained through or derived from electronic surveillance, physical search, or the installation and use of a pen register or trap and trace device under FISA, which a federal, state, or local government intends to use or disclose in a trial or other official proceeding. If a federal, state, or local government intends to use or disclose information obtained by or derived from a FISC order authorizing electronic surveillance, a physical search, or the use of a pen register or trap and trace device, any challenges to the use or disclosure of that information must be made in the U.S. district court in which the motion or request is made, or, if the motion or request is made before another federal, state, or local authority, in the United States district court in the same district as that authority. Such challenges may include motions to suppress made under FISA by an "aggrieved person" against whom such information is intended to be used or disclosed; and any motion or request made by an aggrieved person pursuant to any other statute or rule of the United States or any state before any court or other authority of the United States or any state to discover or obtain applications or orders or other materials relating to FISA electronic surveillance, physical search, or use of a pen register or trap and trace device or to discover, obtain, or suppress evidence or information obtained or derived from the use of such investigative techniques under FISA. Similar, but not identical, to the proceedings before the petition review panel regarding production orders or nondisclosure orders, the U.S. district court proceedings addressing motions to suppress information obtained by or derived from a FISA electronic surveillance, physical search, or pen register or trap and trace device, or seeking to discover or obtain related materials may be considered ex parte and in camera if the Attorney General files an affidavit under oath that disclosure or any adversary hearing would harm the national security of the United States. If the United States district court determines that the electronic surveillance, physical search, or installation and use of the pen register or trap and trace device in regard to the aggrieved person was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence that was unlawfully obtained or derived therefrom or otherwise grant the motion of the aggrieved person. If the court determines that the electronic surveillance, physical search, or installation and use of a pen register or trap and trace device was lawfully authorized or conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure. Orders granting such motions or requests, decisions that a FISA electronic surveillance, physical search, or installation and use of a pen register or trap and trace device was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating thereto shall be final orders and binding upon all courts of the United States and the several states except a United States Court of Appeals or the Supreme Court. The government may seek review of a denial of an application for a court order under FISA authorizing electronic surveillance, physical search, or production of any tangible thing before the Court of Review. If the denial is upheld by the Court of Review, the government may seek U.S. Supreme Court review of the decision by a petition for certiorari. In addition, the Court of Review has jurisdiction over petitions for review of a decision under section 501(f)(2) of FISA, 50 U.S.C. § 1861(f)(2), to affirm, modify, or set aside a production order or nondisclosure order filed by the government or any person receiving such an order. Upon the request of the government, any order setting aside a nondisclosure order shall be stayed pending such review. The Court of Review shall provide for the record a written statement of the reasons for its decision and, on petition by the government or any person receiving such order for writ of certiorari, the record shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision. The U.S. Supreme Court has jurisdiction, on a petition for certiorari, to review decisions of the Court of Review affirming a denial of an application for an order authorizing electronic surveillance, physical searches, production orders, or nondisclosure orders under FISA.

The national debate regarding the National Security Agency's Terrorist Surveillance Program (TSP) focused congressional attention on the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review created by the Foreign Intelligence Surveillance Act. Congressional interest in these courts has been heightened by the January 17, 2007, letter from Attorney General Gonzales to Chairman Leahy and Senator Specter advising them that a Foreign Intelligence Surveillance Court judge had "issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization," stating that all surveillance previously occurring under the TSP will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court, and noting that the President has determined not to reauthorize the TSP when the current authorization expires. This report examines the creation, membership, structure, and jurisdiction of these courts. It will be updated as subsequent events may require.

Levels of pay for congressional staff are a source of recurring questions among Members of Congress, congressional staff, and the public. Senators set the terms and conditions of employment for staff in their offices. This includes job titles and descriptions, rates of pay, subject to minimum and maximum levels, and resources available to them to carry out their official duties. There may be interest in congressional pay data from multiple perspectives, including assessment of the costs of congressional operations, guidance in setting pay levels for staff in Member offices, or comparison of congressional staff pay levels with those of other federal government pay systems. Publicly available information sources do not provide aggregated congressional staff pay data in a readily retrievable form. The most recent publicly available Senate staff compensation report was issued in 2006, and relied on anonymous, self-reported survey data. Data in this report are based on official Senate reports, which afford the opportunity to use consistently collected data from a consistent source. Pay information in this report is based on the Senate's Report of the Secretary of the Senate , published semiannually, in periods from April 1 to September 30, and October 1 to March 31, as collated by LegiStorm, a private entity that provides some congressional data by subscription. Additionally, this report provides annual data, which allows for observations about the nature of Senators' personal staff compensation over time. This report provides pay data for 16 staff position titles that are typically used in Senators' offices. The positions include the following: Administrative Director Casework Supervisor Caseworker Chief of Staff Communications Director Counsel Executive Assistant Field Representative Legislative Assistant Legislative Correspondent Legislative Director Press Secretary Scheduler "Specials Director," a combined category that includes the job titles Director of Projects, Director of Special Projects, Director of Federal Projects, Director of Grants, Projects Director, or Grants Director Staff Assistant State Director Senators' staff pay data for FY2001-FY2015 were derived from a random sampling of Senators' offices in which at least one staff member worked in a position in each year. For each fiscal year, FY2001-FY2015, a random sample of 25 Senators' offices was taken for each position. In order to be included, Senate staff had to hold a position with the same job title in the Senator's office for the entire fiscal year examined, and not receive pay from any other congressional employing authority. For some positions, it was not possible to identify 25 offices that employed staff for an entire year. In circumstances when data for 14 or fewer staff were identified for a position, this report provides no data. Every recorded payment ascribed in the LegiStorm data to those staff for the fiscal year is included. Data collected for this report may differ from an employee's stated annual salary due to the inclusion of overtime, bonuses, or other payments in addition to base salary paid in the course of a year. Generally, each position has no more than one observation per Senator's office each fiscal year. Pay data for staff working in House Member offices are available in CRS Report R44323, Staff Pay Levels for Selected Positions in House Member Offices, 2001-2014 . Data describing the pay of congressional staff working in House and Senate committee offices are available in CRS Report R44322, Staff Pay Levels for Selected Positions in House Committees, 2001-2014 , and CRS Report R44325, Staff Pay Levels for Selected Positions in Senate Committees, FY2001-FY2014 , respectively. There may be some advantages to relying on official salary expenditure data instead of survey findings, but data presented here are subject to some challenges that could affect findings or their interpretation. Some of the concerns include the following: Data are lacking for first-term Senators in the first session of a Congress. The periods of time covered by the Report of the Secretary of the Senate overlap the end of one Congress and convening of the next. This report provides no data for first-term Senators in the first nine months of their service. Pay data provide no insight into the education, work experience, position tenure, full- or part-time status of staff, or other potential explanations for levels of compensation. Staff could be based in Washington, DC, state offices, or both. Potential differences might exist in the job duties of positions with the same title. Aggregation of pay by job title rests on the assumption that staff with the same title carry out the same or similar tasks. Given the wide discretion congressional employing authorities have in setting the terms and conditions of employment, there may be differences in the duties of similarly titled staff that could have effects on their levels of pay. Acknowledging the imprecision inherent in congressional job titles, an older edition of the Senate Handbook states, "Throughout the Senate, individuals with the same job title perform vastly different duties." Tables in this section provide background information on Senate pay practices, comparative data for each position, and detailed data and visualizations for each position. Table 1 provides the maximum payable rates for staff in Senators' offices since 2001 in both nominal (current) and constant 2016 dollars. Constant dollar calculations throughout the report are based on the Consumer Price Index for All Urban Consumers (CPI-U) for various years, expressed in constant, 2016 dollars. Table 2 provides available cumulative percentage changes in pay in constant 2016 dollars for each of the 16 positions, Members of Congress, and salaries paid under the General Schedule in Washington, DC, and surrounding areas. Table 3 - Table 18 provide tabular pay data for Senators' staff positions. The numbers of staff whose data were counted are identified as observations in the data tables. Graphic displays are also included, providing representations of pay from three perspectives, including the following: a line graph showing change in pay, depending on data availability, in nominal (current) and constant 2016 dollars; a comparison at 5-, 10-, and 15-year intervals from FY2015, depending on data availability, of the cumulative percentage change in pay of that position to changes in pay, in constant 2016 dollars, of Members of Congress and federal civilian workers paid under the General Schedule in Washington, DC, and surrounding areas; and distributions of FY2015 pay, in 2016 dollars, in $10,000 increments. Between FY2011 and FY2015, the change in median pay, in constant 2016 dollars, ranged from a 9.86% increase for press secretaries to a -26.05% decrease for specials directors. Of the 16 positions, half saw pay increases, while the other half saw pay decreases during the five-year period. This may be compared to changes in the pay of Members of Congress, -5.1%, and General Schedule, DC, -3.19%, over approximately the same period (calendar years 2011-2015). Between FY2006 and FY2015, the change in median pay, in constant 2016 dollars, ranged from a 15.69% increase for field representatives to a -18.96% decrease for executive assistants. Of the 16 staff positions, 4 saw pay increases while 12 saw declines. This may be compared to changes in the pay of Members of Congress, -10.41%, and General Schedule, DC, -0.13%, over approximately the same period (calendar years 2006-2015). Between FY2001 and FY2015, the change in median pay, in constant 2016 dollars, ranged from a 27.09% increase for state directors to a -19.64% decrease for press secretaries. Of 15 staff positions for which data were available between FY2001 and FY2015, 7 positions saw pay increases while 8 saw declines. This may be compared to changes in the pay of Members of Congress, -10.4%, and General Schedule, DC, 7.36%, over approximately the same period (calendar years 2001-2015).

The level of pay for congressional staff is a source of recurring questions among Members of Congress, congressional staff, and the public. There may be interest in congressional pay data from multiple perspectives, including assessment of the costs of congressional operations; guidance in setting pay levels for staff in Member offices; or comparison of congressional staff pay levels with those of other federal government pay systems. This report provides pay data for 16 staff position titles that are typically used in Senators' offices. The positions include the following: Administrative Director, Casework Supervisor, Caseworker, Chief of Staff, Communications Director, Counsel, Executive Assistant, Field Representative, Legislative Assistant, Legislative Correspondent, Legislative Director, Press Secretary, Scheduler, "Specials Director" (a combined category that includes the job titles Director of Projects, Director of Special Projects, Director of Federal Projects, Director of Grants, Projects Director, or Grants Director), Staff Assistant, and State Director. Tables provide tabular pay data for each of the selected staff positions in a Senator's office. Graphic displays are also included, providing representations of pay from three perspectives, including the following: a line graph showing change in pay; a comparison at 5-, 10-, and 15-year intervals from FY2015, depending on data availability, of the cumulative percentage change in pay for that position to changes in pay of Members of Congress and federal civilian workers paid under the General Schedule in Washington, DC, and surrounding areas; and distributions of FY2015 pay in $10,000 increments. In the past five years (FY2011 and FY2015), the change in median pay, in constant 2016 dollars, ranged from a 9.86% increase for press secretaries to a -26.05% decrease for specials directors. Eight of the 16 positions experienced increases in pay, while the remaining eight positions saw declines in pay. This may be compared to changes to the pay of Members of Congress, -5.10%, and General Schedule, DC, -3.19%, over approximately the same period (calendar years 2011-2015). Pay data for staff working in House Member offices are available in CRS Report R44323, Staff Pay Levels for Selected Positions in House Member Offices, 2001-2014. Data describing the pay of congressional staff working in House and Senate committee offices are available in CRS Report R44322, Staff Pay Levels for Selected Positions in House Committees, 2001-2014, and CRS Report R44325, Staff Pay Levels for Selected Positions in Senate Committees, FY2001-FY2014, respectively. Information about the duration of staff employment is available in CRS Report R44683, Staff Tenure in Selected Positions in House Committees, 2006-2016, CRS Report R44685, Staff Tenure in Selected Positions in Senate Committees, 2006-2016, CRS Report R44682, Staff Tenure in Selected Positions in House Member Offices, 2006-2016, and CRS Report R44684, Staff Tenure in Selected Positions in Senators' Offices, 2006-2016.

This report provides an analytic overview of the professional experiences and qualifications of those individuals who are currently serving as active U.S. circuit court judges. Ongoing congressional interest in the professional experiences of judicial nominees reflects, in part, the evaluative role of Congress in examining the qualifications of those who are nominated by the President to life-tenure positions. Senators, when giving floor speeches supporting circuit court nominations, routinely highlight certain professional experiences or qualifications often considered important to serving as a federal judge. Examples of such statements include the following: A Senator noting that a nominee to the Fourth Circuit Court of Appeals had 22 years of prior judicial experience "at the State courts and the Federal courts." The Senator stated that the nominee "has not only served as a distinguished judge, but also he came to the courts as an experienced prosecutor. He was with the Civil Rights Division at the Department of Justice and with the U.S. Attorney's Office in Maryland." A Senator noting that a nominee to the First Circuit had joined a prestigious law firm in the Senator's home state, "where over the subsequent 32 years [he] specialized in complex civil litigation at both the trial and appellate levels." The Senator also stated that the nominee had served as chairman of the state's Professional Ethics Commission and as president of the state's bar association, and that "his 30-plus years of real-world litigation experience would bring a valuable perspective to the court." A Senator emphasizing that a nominee to the Seventh Circuit Court of Appeals would "bring almost 12 years of judicial experience" to the bench as a result of her service on the Wisconsin Supreme Court and as a trial judge on the Milwaukee County Circuit Court. The Senator also noted that prior to the nominee's service as a state judge, the nominee had "practiced commercial litigation for 7 years at one of Wisconsin's most prestigious law firms." The professional experiences of judicial nominees are also of interest to interest groups, particularly professional organizations such as the American Bar Association (ABA). Judicial nominees are evaluated by the ABA's Standing Committee on the Federal Judiciary. The committee's evaluation criteria focus "strictly on professional qualifications: integrity, professional competence and judicial temperament." The committee "believes that a prospective nominee to the federal bench ordinarily should have at least twelve years' experience in the practice of law" and that "substantial courtroom and trial experience as a lawyer or trial judge is important." The committee also notes, however, that "distinguished accomplishments in the field of law or experience that is similar to in-court trial work ... may compensate for a prospective nominee's lack of substantial courtroom experience." For prospective circuit court nominees, the committee states that "because an appellate judge deals primarily with the review of briefs and the records of lower courts, the committee places somewhat less emphasis on the importance of trial experience as a qualification for the appellate courts." Additionally, the professional or career experiences of judges prior to the start of their judicial service has also been of interest to scholars examining whether particular professional experiences might influence or explain variation in aspects of judicial decision making (e.g., whether a judge votes in a consistent ideological direction, the sources relied upon by a judge in reaching his or her decisions, whether a judge decides to publish his or her opinions, etc.). For example, one study found that prior judicial experience for U.S. circuit court judges did not influence variation in judicial decision making in terms of the extent a judge voted in a consistent ideological fashion (such prior experience might have been hypothesized to be a source of consistency in judicial voting). Another study found that district court judges whose primary work before becoming a judge involved non-private practice work experience (e.g., working as a government attorney or law professor) were less likely to rely on regulations and other Internal Revenue Service pronouncements in interpreting the federal tax code than judges whose work prior to becoming a judge was predominately as an attorney in private practice. Other scholars suggest that the lack of career diversity among federal judges might be problematic, in terms of the lack of diversity diminishing the institutional performance of the courts. Specifically, they argue that, given appropriate procedural conditions, "the greater diversity of participation by people of different [professional] backgrounds and experiences, the greater the range of ideas and information contributed to the institutional process." Consequently, in the context of judicial decision making, "judges with varied career experiences bring distinct perspectives to the bench—perspectives that ultimately lead them to make distinct judicial choices—[and] merging jurists with diverse career paths on a particular court ought ... [to] lead to more effective decision making" by that court. In light of ongoing interest in the professional qualifications of those nominated to circuit court judgeships, this report seeks to inform Congress by providing statistics related to the professional qualifications or experiences of those currently serving on the bench as U.S. circuit court judges. Specifically, this report provides statistics and analysis related to (1) the percentage of active circuit court judges with judicial experience, as well as the type of judicial experience; (2) the percentage of active circuit court judges with private practice experience, as well as the length of time of such experience; and (3) the percentage of active circuit court judges by professional experience immediately prior to their appointment to a circuit court judgeship. Note that the statistics provided in this report are based upon the professional experiences of individuals serving, as of February 1, 2014, as active U.S. circuit court judges. Consequently, the statistics do not include circuit court judges who, prior to February 1, 2014, had assumed senior status, retired, or resigned. The total number of circuit court judges included in the analysis is 163. Consequently, this is the denominator used to calculate most of the statistics included in the report. The analysis is based on information provided by the Biographical Directory of Federal Judges . This report will be updated annually by CRS at the beginning of each calendar year. Figure 1 provides statistics related to the two most common types of professional experiences of U.S. circuit court judges who are currently serving on the bench—prior judicial experience and experience working as an attorney in private practice. The percentages reported for the two types of experiences are not mutually exclusive, meaning that there is some overlap between the two categories. For example, 47.9% of all active circuit court judges have both prior judicial experience as well as experience as an attorney in private practice (while 9.0% have neither prior judicial nor private practice experience). Altogether, 54.6% of U.S. circuit court judges who are currently serving had prior experience as another type of judge before their appointment to a circuit court (and 45.4% had no such experience). Of the judges with prior judicial experience, 22.7% served solely as another type of federal judge (e.g., a U.S. district court judge), while 20.9% served solely as a state judge and another 11.0% had both prior federal and state judicial experience. Of the 74 circuit judges with no prior judicial experience, 81.8% had worked as attorneys in private practice, including 39.2% who worked in private practice for 15 or more years (and another 14.9% who worked in private practice for 10 to 14 years). Although over half of active circuit court judges have prior judicial experience (54.6%), a greater percentage have at least some prior experience as attorneys in private practice (84.7%). Similarly, while 45.6% of active circuit judges do not have prior judicial experience, a much smaller percentage, 15.3%, have no prior experience in private practice. Figure 1 also shows that of active circuit court judges with private practice experience, a plurality (26.4%) had 15 or more years of experience as attorneys in private practice. Another 21.5% had less than 5 years of experience, while 17.2% had 5 to 9 years of experience and 19.6% had 10 to 14 years of experience. Altogether, 46.0% of active circuit court judges had 10 or more years of experience as attorneys in private practice (while 54.0% had less than 10 years of experience or no private practice experience). Figure 2 reports the percentage of active U.S. circuit court judges who had a particular type of position or occupation immediately prior to their appointment as a circuit court judge. So, for example, a plurality of active circuit court judges, 27.0%, were U.S. district court judges immediately prior to being appointed as circuit court judges. Altogether, half (50.3%) of all active circuit court judges were serving as another type of judge (either a U.S. district court judge, another type of federal judge, or a state judge). The percentage of circuit court judges serving as another type of judge immediately prior to appointment might be lower than what has been the case, historically, for circuit court judges (at least during the first half of the 20 th century). For example, of circuit court judges appointed during the seven presidencies from Theodore Roosevelt to Franklin Roosevelt, 63.7% were serving as another type of judge at the time of appointment or promotion to the U.S. courts of appeals. Additionally, 55.6% and 57.5% of Eisenhower and Johnson circuit court appointees, respectively, were serving as judges prior to their appointment to a circuit court. In general, service as a U.S. district court judge was the most common type of judicial experience of those serving as judges immediately prior to their appointment as a circuit court judge. As noted by one scholar, the "federal district court bench is a training camp for the federal courts of appeals bench. A president faced with a vacancy on a court of appeals looks, though not exclusively, to sitting district court judges." Of circuit court judges currently serving on the bench, approximately one-quarter (25.8%) were working as attorneys in private practice prior to being appointed as a circuit court judge, with 22.1% having worked in private practice for 10 years or more. Additionally, of those working in private practice for 10 years or more, 80.6% had been working as an attorney in private practice for at least 15 years. As the percentages reported in Figure 2 indicate, a relatively large majority of active circuit court judges (72.4%) were, prior to being appointed as circuit judges, serving as either another type of judge or engaged in private practice for 10 or more years (and often for 15 or more years). Other types of positions held by active U.S. circuit court judges prior to being appointed include working as an attorney at the Department of Justice (DOJ) or a U.S. Attorneys' Office (7.4%) or working as a law professor (6.7%). Another 9.8% of active circuit court judges held other types of positions immediately prior to being appointed. Of appointees of Democratic Presidents who are currently on the bench, the most common type of position immediately prior to appointment as a circuit court judge was service as another type of judge (54.8% of all active appointees), with a plurality (31.0%) having prior service as a U.S. district court judge. Other types of positions or occupations held by active circuit court appointees of Democratic Presidents immediately prior to appointment were attorneys in private practice (26.2%), attorneys at the Department of Justice or a U.S. Attorney's Office (8.3%), and law professors (6.0%). Of appointees of Republican Presidents currently on the bench, the most common type of position immediately prior to appointment as a circuit court judge was service as another type of judge (45.6%), with a plurality (22.8%) having served as a U.S. district court judge. Other types of positions or occupations held by active circuit court appointees of Republican Presidents immediately prior to appointment were attorneys in private practice (25.3%), attorneys at the Department of Justice or a U.S. Attorney's Office (6.3%), and law professors (7.6%). Another 15.2% of Republican appointees had another type of position or occupation immediately prior to their appointment. This report provides a statistical overview of the professional qualifications and experiences of active U.S. circuit court judges. Ongoing congressional interest in the professional background of those nominated to the federal bench reflects, in part, the role of Congress in evaluating the qualifications of those who are nominated by the President to life-tenure positions. As discussed above, a majority of current circuit court judges have prior judicial experience. A greater majority of active circuit judges also have experience working as attorneys in private practice, often for relatively lengthy periods of time. There are, however, judges without either type of experience who have other types of professional experiences such as working as an attorney for the federal government or as a law professor.

This report provides an analysis of the professional qualifications and experiences of U.S. circuit court judges who are currently serving on the federal bench. Interest in the professional qualifications of those nominated to the federal judiciary has been demonstrated by Congress and others. Congressional interest in the professional experiences of those nominated by a President to the federal courts reflects, in part, the evaluative role of Congress in examining the qualifications of those who are nominated to life-tenure positions. Other organizations, such as the American Bar Association (ABA), also have an ongoing interest in the professional qualifications of those appointed to the federal judiciary. Additionally, scholars have demonstrated an interest in this topic by examining whether a relationship exists between the professional or career experiences of judges and judicial decision making. The analysis in this report focuses on the professional experiences of 163 active U.S. circuit court judges who were serving as of February 1, 2014. Active judges are those who have not taken senior status, retired, or resigned. Consequently, the statistics provided do not necessarily reflect all circuit court judges who are sitting on the bench (which include judges who have assumed senior status). Some of this report's findings include the following: A majority, 54.6%, of active circuit court judges had prior judicial experience at some point before being appointed as circuit court judges (and 45.4% had no such experience). Of the judges with prior judicial experience, 22.7% served solely as another type of federal judge (e.g., a U.S. district court judge), while 20.9% served solely as a state judge and another 11.0% had both prior federal and state judicial experience. A majority, 84.7%, of active circuit court judges had at least some prior experience as an attorney in private practice at some point prior to their appointment as a circuit judge. Of active circuit court judges with private practice experience, a plurality (26.4%) had 15 or more years of experience as an attorney in private practice. While 45.4% of active circuit judges do not have prior judicial experience, a much smaller percentage, 15.3%, have no prior experience in private practice. Circuit court judges without either prior judicial experience or experience as an attorney in private practice had other professional experiences such as working as an attorney for the federal government or as a law professor. Immediately prior to their appointment to the appellate bench, most circuit court judges were either serving as another type of judge or had been engaged in private practice for at least 10 years. Approximately half, 50.3%, of all active circuit judges were serving as another type of judge immediately prior to their appointment (i.e., serving as a district court judge, another type of federal judge such as a bankruptcy judge, or a state judge). Approximately one quarter, 25.8%, of active circuit court judges were working as attorneys in private practice immediately prior to being appointed as a circuit judge (with 22.1% having worked in private practice for 10 years or more).

Medicaid is a means-tested entitlement program that, in FY2012, financed the delivery of primary and acute medical services, as well as long-term services and supports, to nearly 57 million people and cost states and the federal government a total of $431 billion. Each state designs and administers its own version of Medicaid under broad federal rules. As a result, there is significant variation across states in terms of who is eligible for coverage, what services are available, and which subgroups of beneficiaries are subject to out-of-pocket costs. Cost-sharing requirements may include participation-related cost-sharing, such as monthly premiums or annual enrollment fees, as well as point-of-service cost-sharing such as co-payments—flat dollar amounts paid directly to providers for services rendered. Similar types of out-of-pocket cost-sharing can apply to individuals enrolled in private health insurance, although the amounts to which such beneficiaries may be subject can be higher than the amounts allowed in Medicaid. The Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA 1982, P.L. 97-248 , Subtitle B) added to the federal Medicaid statute the authority for states to impose enrollment fees, premiums, or similar charges as well as point-of-service cost-sharing. The Deficit Reduction Act of 2005 (DRA, P.L. 109-171 ) made additional, major changes to cost-sharing requirements that could be applied to Medicaid beneficiaries, including allowing states to permit providers to deny services when a co-payment requirement is not met. In July 2013, the Centers for Medicare and Medicaid Services (CMS) issued new regulations for Medicaid premiums and cost-sharing. Today, participation-related cost-sharing (e.g., premiums) in Medicaid tends to be limited to certain subpopulations, and states use point-of-service cost-sharing more broadly. States can require certain beneficiaries to share in the cost of Medicaid services, but there are limits on (1) the amounts states can impose, (2) the beneficiary groups that can be required to pay, and (3) the services for which cost-sharing can be charged. In general, premiums and enrollment fees are often prohibited. However, premiums may be imposed on enrollees with income above 150% of the federal poverty level (FPL). A survey by the Kaiser Family Foundation found that in state fiscal year (SFY) 2013, 39 states had at least one group able to participate in Medicaid by paying a premium, with a total of 59 different premium programs. States can also impose point-of-service cost-sharing, such as co-payments, coinsurance, deductibles, and other similar charges, on most Medicaid-covered inpatient and outpatient benefits. However, they cannot impose cost-sharing for emergency services or family planning services and supplies. Some subgroups of beneficiaries are exempt from cost-sharing (e.g., children under 18 years of age and pregnant women). The cost-sharing amounts that can be charged vary with income. In SFY2013, 46 states (including the District of Columbia) reported having co-payment requirements. Higher beneficiary cost-sharing is allowed in certain circumstances, and federal regulations modified some of these provisions. Medicaid premiums and service-related cost-sharing incurred by all individuals in a Medicaid household cannot exceed an aggregate limit of 5% of family income applied on either a monthly or quarterly basis, as specified by the state Medicaid agency. States can use either Medicaid state plan amendments (SPAs) or Section 1115 waiver authority in the Social Security Act to establish both premiums and point-of-service cost-sharing. This report includes examples of both types of beneficiary out-of-pocket spending in Medicaid. Other federal regulations (issued October 1, 2013) address out-of-pocket costs for Medicaid beneficiaries enrolled in Medicaid managed care plans. State contracts with Medicaid managed care plans must follow the same federal regulations applicable under the state Medicaid plan, and they also must comply with specific regulatory requirements. To obtain health insurance, certain Medicaid enrollees may be subject to monthly premiums, the most common form of participation-related cost-sharing. Such charges are prohibited under Medicaid for many eligibility subgroups. Enrollment fees, premiums or similar charges must adhere to the following rules: a minimum charge of at least $1.00 per month is imposed on (a) one- or two-person families with monthly gross income of $150 or less, (b) three- or four-person families with monthly gross income of $300 or less, and (c) five- or more person families with monthly gross income of $350 or less. Any charge related to gross family income that is above these minimums may not exceed the standards shown in Table 1 : Different federal regulations apply to certain Medicaid subgroups for families with income exceeding 150% FPL (see Table 2 ). Except for premiums applicable to Medicaid beneficiaries classified as medically needy, the state Medicaid agency may choose to terminate individuals' Medicaid coverage on the basis of failure to pay for 60 days or more. Table 2 provides information about optional premiums that states can choose to apply to specific Medicaid subgroups with income that exceeds 150% FPL. For several of these subgroups, states are allowed to set premiums on a sliding scale based on family income. Other caveats apply to specific subgroups, also identified in this table. As of SFY2013, a total of 39 states indicated that at least one group participated in Medicaid by paying premiums, and 11 states and the District of Columbia did not require premiums under Medicaid. Beneficiary out-of-pocket payments to providers at the time of service can take three forms. A deductible is a specified dollar amount paid for certain services rendered during a specific time period (e.g., per month or quarter) before health insurance (e.g., Medicaid) begins to pay for care. Coinsurance is a specified percentage of the cost or charge for a specific service delivered. A co - payment is a specified dollar amount for each item or service delivered. Deductibles and coinsurance are infrequently used in Medicaid, but co-payments are applied to some services and groups. Federal rules place limits on which services cost-sharing can be applied to (including which specific services are exempt, discussed below) and what amounts can be charged. Cost-sharing can be charged for allowed services regardless of income, but the maximum amount can be substantially higher for individuals with incomes greater than 100% FPL. Table 3 provides a comparison of the maximum charges allowed for service-related cost-sharing applicable to outpatient services and inpatient stays for three family income subgroups. Table 4 provides a comparison of maximum allowable charges for service-related cost-sharing for prescription drugs (preferred and non-preferred) as well as nonemergency use of an emergency department, also based on family income. Some services are exempt from co-payments, including, for example, emergency use of emergency departments. Apart from point-of-service cost-sharing for drugs and nonemergency services provided in an emergency department (described in Table 4 ), federal regulations specify that the maximum allowable cost-sharing dollar amounts will increase annually, beginning October 1, 2015, for certain Medicaid enrollees. Specifically, for individuals with income at or below 100% FPL, the maximum allowable cost-sharing amounts must increase each year by the percentage increase in the medical care component of the consumer price index for all urban consumers (CPI-U) for the period of September to September of the preceding calendar year, rounded to the next higher 5-cent increment. Federal Medicaid regulations allow states to target cost-sharing to specific subgroups. For example, the state Medicaid agency may apply cost-sharing to specific groups with family income above 100% FPL. The state Medicaid agency also may target cost-sharing to specified groups of individuals regardless of income for non-preferred drugs and for nonemergency services provided in a hospital emergency department. In states without fee-for-service payment rates, individuals at any income level may not be subject to cost-sharing that exceeds the maximum amounts established for individuals with income at or below 100% FPL for both inpatient and outpatient services and at or below 150% FPL for outpatient services, inpatient stays, prescribed drugs, and nonemergency use of the emergency department (i.e., the co-payment rates by type of service and family income as shown in Table 3 and Table 4 ). In no case can the maximum cost-sharing established by the state be equal to or exceed the amount the state Medicaid agency pays for both inpatient and outpatient services. Certain Medicaid subgroups and specific Medicaid services are exempt from the application of deductibles, coinsurance, co-payments, or similar charges. Such subgroups include individuals classified as either categorically needy or medically needy who are children under the age of 18 (or up to the age of 21 at state option); certain pregnant women for services related to the pregnancy or to any other medical conditions that may complicate the pregnancy; and certain institutionalized individuals who are required to spend all but a minimal amount of their income required for personal needs. Federal statute and regulations prohibit states from requiring out-of-pocket costs for the following exempted services: emergency services (e.g., both inpatient and outpatient services furnished by a qualified provider) that are needed to evaluate or stabilize an emergency medical condition; family planning services and supplies for individuals of childbearing age including contraceptives and pharmaceuticals for which the state claims or could claim a 90% federal share of the total cost; preventive services, including well-baby and well-child care services in either the managed care or fee-for-service delivery systems; pregnancy-related services; provider-preventable services (e.g., health care acquired conditions). Based on data from the same Kaiser Family Foundation survey noted above, 46 states (including the District of Columbia) required co - payments in SFY2013. Five states (Hawaii, Nevada, New Jersey, Rhode Island and Texas) had no co - payment requirements. Two states indicated that co - payments were enforceable (e.g., providers are allowed to deny services when a co - payment requirement is not met). In Arkansas, such enforceability applies to co - payments for adults with income over 100% FPL (pending waiver approval). Maine plans to make pharmacy co -p ayments enforceable for those with income over 100% FPL. In addition, Maryland will end co - payment enforceability for a waiver group as it transitions to the Patient Protection and Affordable Care Act ( ACA ; P.L. 111-148 as amended) expansion coverage. Another Kaiser Family Foundation report noted that, in January 2013, non-zero co - payment amounts for non-preventive physician visits applicable to children in families with income at 151% FPL ranged from a low of $0.50 in Georgia to a high of $25 in Utah and Texas. Higher co - payment amounts for a non-preventive physician visit applied to children in families with income at 201% FPL and ranged from a low of $0.50 in Georgia to a high of $25 in Utah and Texas. In addition, a co - payment amount equal to 10% of the cost of a non-preventive physician visit applied to children in families with income at 201% FPL in Louisiana . Specific Medicaid subgroups are exempt from out-of-pocket costs, including (1) certain children, (2) pregnant women, (3) individuals in nursing homes or who receive services provided in home and community-based settings, (4) terminally ill individuals receiving hospice care, (5) Indians who receive care through Indian health care providers or through what is called contract health services, and (6) individuals with breast or cervical cancer. Exclusions from the application of both premiums and point-of-service cost-sharing are identified in Table 5 below. Federal regulations delineate beneficiary and public notice requirements related to out-of-pocket costs for Medicaid beneficiaries. The state Medicaid agency must provide a public schedule describing current premiums and other cost-sharing requirements, including (1) individuals who are subject to premiums or cost-sharing along with the current amounts; (2) the mechanisms for making payments for required premiums and cost-sharing charges; (3) the consequences for applicants or recipients who do not pay a premium or cost-sharing charge; (4) a list of hospitals charging cost-sharing for nonemergency use of the emergency department; and (5) a list of preferred drugs or a mechanism to access such a list, including the state Medicaid agency website. Finally, state Medicaid agencies must make the public schedule available to a number of subgroups in a manner that ensures that affected applicants, beneficiaries and providers are likely to have access to such a notice. For beneficiaries, this information must be made available at the time of enrollment or reenrollment subsequent to the redetermination of Medicaid eligibility. It must also be made available when premiums, service-related cost-sharing charges, or aggregate limits are revised. For applicants, this information must be available at the time of application. The general public must also have access to this information. When a state wishes to establish or substantially modify existing premiums or cost-sharing, or to change the consequences for nonpayment, the agency must provide the public with advance notice of the state plan amendment (SPA), specifying the amount of premiums or cost-sharing and who will be subject to these charges. The agency must also provide a reasonable opportunity to comment on such SPAs, and it must submit documentation with the SPA to demonstrate that these requirements are met. If premiums or cost-sharing are substantially modified during the SPA approval process, the agency must provide additional public notice.

The federal Medicaid statute and accompanying regulations include provisions that states can apply to certain program beneficiaries with respect to out-of-pocket cost-sharing, including premiums that may be required on a monthly or quarterly basis, enrollment fees that may be applied on an annual or semiannual basis, and point-of-service cost-sharing (e.g., a co-payment to a Medicaid participating provider for a specific covered service received). To implement these options, states must submit Medicaid state plan amendments (SPAs) detailing these provisions to the federal Centers for Medicare and Medicaid Services (CMS) for approval. This report provides an overview of these federal authorities and includes some state-specific examples.

Concerns about global climate change and its impacts on the environment and the economy are encouraging policy-makers and stakeholders to explore a range of options to reduce emissions of carbon dioxide (CO 2 ) and other greenhouse gases (GHGs). Congress is considering legislation that would, among other things, provide incentives for parties to reduce or mitigate GHG emissions or to sequester (store) additional CO 2 . The possible use of forestry and agricultural practices and lands to mitigate or sequester CO 2 is part of the debate. However, substantial uncertainty exists about current ability to accurately quantify, monitor, and verify the amount of carbon sequestered by various agricultural and forestry practices. By comparison, measuring the carbon from a discrete point source, such as a power plant, is relatively easy and precise. Incorporating the agriculture and forestry sectors in an emissions reduction program will likely require a firm basis for measuring carbon inventories and change for forestry and agricultural practices and lands. Farm and forest activities can be both a source and a sink of GHGs, releasing GHGs through plant and animal respiration and decomposition and removing CO 2 through photosynthesis, storing it in vegetation and soils (a process known as sequestration). A range of land management, agricultural conservation, and other farmland practices can reduce or abate emissions and/or sequester carbon. These include tree planting, soil conservation, manure and grazing management, and land retirement, conversion, and restoration. Many of these activities, however, may be impracticable for an emission trading program because they might not meet credible standards for quantifying, monitoring, and verifying emission reduction or carbon storage. Reliable tools and techniques are needed for carbon inventories and carbon change on forests and agricultural lands. The ability to measure carbon levels allows countries that have committed to reducing GHG emissions to measure their current annual emissions and carbon storage (and changes in carbon stocks). Current estimates show that forests account for a significant share of estimated existing carbon stocks globally; agricultural lands account for a small share of stored carbon. Also, the ability to measure carbon levels provides the means to estimate the mitigation potential of forest or agriculture activities that sequester additional carbon in soils or vegetation (i.e., result in a net reduction compared to estimated baseline conditions or current sequestration). This may allow a farm or forestry activity to be recognized as a way to mitigate or offset emissions—through voluntary action, an emissions trading market, or a regulatory program. For an emissions trading program to be credible, a participating entity is usually required to meet a series of established protocols that specify what, when, where, and how to measure changes in carbon. Protocols provide technical guidelines or standardized rules for quantifying, monitoring, and verifying the mitigation of an activity. They specify requirements on project eligibility, scale and baseline measurements, measurement frequency, and verification. The difficulty is developing credible protocols that are quantitatively defensible and readily applicable across areas with differing land uses, weather, and other site-specific conditions. Protocols also address, to varying degrees, concerns about the validity of activities, such as additionality, leakage, and permanence. Protocols may be either voluntary or set by regulation. In one voluntary market, the Chicago Climate Exchange (CCX) has protocols for a range of soil and land management projects, including agricultural methane, soil carbon, rangeland soil carbon management, and tree planting projects. The Regional Greenhouse Gas Initiative (RGGI)—the first regional mandatory, market-based effort to reduce GHG emissions—is developing technical standards for a narrower set of offset projects from the agricultural and forestry sectors, providing for afforestation and methane reduction from livestock operations. Individual requirements of current protocols and standards can vary widely by program. Numerous methods exist to measure forest and agricultural carbon. The appropriate measure to use in specific circumstances depends on several variables, including the purpose for measuring the carbon, the scale and basis to be measured, the frequency of the measurement, and how the measurement is to be verified. Two geographic scales are commonly used for measuring GHG emissions—the national/regional level to report GHG emissions and participate in broad efforts to reduce emissions; and the local/site-specific level for projects to offset emissions. Regardless of scale, the emission reduction or carbon sequestration is compared to a baseline —the historic GHG emissions or carbon stocks at a specified point in time. The scale and baseline timing are typically specified in the protocol of the reporting, marketing, or regulating organization. Sometimes, for projects with multiple land uses, the land is stratified into the various land uses (e.g., cropland, pasture, sapling forest, mature forest), with a different baseline established for each use. Protocols typically identify when GHG emissions must be measured. An initial measurement is needed to establish the baseline. This must be done prior to the onset of a project, to allow for measuring the change that results from the action. Occasionally, a historic baseline is specified; for example, the Kyoto Protocol identified 1990 emissions as the baseline for measuring emission reductions. Other options include a current level, or other level whereby a project is compared to "business as usual." The protocols also identify the frequency and timing of measurements. For example, CCX contracts for agricultural projects require annual measurements to assure that the emission reduction or carbon sequestration is actually occurring. Frequency of measurement also depends on the rate of change in carbon storage. Some carbon pools, such as forest soils, change relatively slowly (unless the forest is disturbed), and measurement once a decade may be sufficient. For other carbon pools, such as pastures or managed lands, differences within and across years can be substantial, and may require more frequent measurement. Timing can be critical, and alternative measurements may vary widely. The amount of carbon stored in vegetation, in particular, varies over the course of a year, with carbon sequestered during the spring, carbon stored in foliage at its maximum in late summer, and carbon released during the winter as the deciduous leaves decompose. Thus, consistent timing for annual measures is an important element for agricultural and forestry carbon projects. Verifying the emission reduction or carbon sequestration is critical in efforts to mitigate climate change. It is particularly important for agriculture and forestry projects, as these activities are harder to measure reliably than other types of GHG offsets. One question is who will be responsible for verifying changes in carbon, which raises questions about the role of a regulatory agency for accrediting claimed changes in carbon levels from an activity. Existing programs typically recommend or require that the carbon offset be verified by an independent entity. Independent verification may be an auditing function, to assure the reality and accuracy of the carbon offset for markets (buyers and sellers), regulations (emitters and regulators), and reports (emitters and reporting organizations). One source has prescribed several qualities for independent verification: an "independent, qualified, third-party verifier" using "approved methodologies and regulations" and "whose compensation is not in any way dependent on the outcomes of their decisions" and who follows set procedures to avoid conflicts of interest. As voluntary and regulated markets for GHG emissions offsets develop, qualified, independent organizations to verify carbon offsets will be needed. Entities qualified to verify agriculture and forest carbon offsets must be proven to be knowledgeable about carbon measurement. One source notes: "To provide good quality and trustworthy oversight, a sufficiently rigorous accreditation process will be necessary to ensure that the verifiers have the needed expertise." This process could parallel the development of independent auditors for certifying sustainable forestry programs. Basic approaches for measuring agricultural and forest carbon inventories and change include on-site measurement, indirect measurement from off-site tools, and estimation using process models or inferences. A hybrid approach involving a combination of approaches (e.g., combining modeling with on-site sampling and independent verification) might improve the accuracy enough to be useful while still containing costs. Because of the inherent challenges associated with balancing the cost of measuring carbon and the accuracy of these measurements, any practicable system for measuring forest and agricultural carbon might require a mix of these different methods and approaches, rather than a single approach. Direct measurement of the carbon content of agricultural and forestry soils and vegetation through field sampling and site-specific laboratory estimates is perhaps the most accurate way to measure carbon levels and changes. However, this is time-consuming, costly, and often requires continuous sampling and replication via a census of soil and vegetation carbon for all agriculture and forestry projects, and may be infeasible. Also, it cannot cover large areas. Samples can be taken and the results extrapolated, based on soil survey, land cover, climate, and other spatial data. Sampling patterns (e.g., a grid, random, or stratified random), intensity (e.g., the area to be sampled), and frequency are likely to be specified in the protocols, and many sources discuss sampling methods for agriculture and forestry projects. The more intensive and frequent the sampling, the greater the cost, but the higher the likely accuracy of the data. Most experts suggest some sampling to ensure the accuracy of models or off-site measures, especially performed consistently over time. As with verification, the entity that measures the on-site carbon can affect perceptions of the accuracy of the measurement. Landowners or other offset sellers can perform the measurement—both at the outset of the project (for the baseline) and periodically during the life of the project. This could reduce costs, because they are commonly on the site, but raises questions of credibility, since they have an interest in the reported carbon levels. Ensuring that verification is conducted by independent verifiers might be sufficient to assuage market concerns over credibility, but could involve high project verification costs. Tools exist to calculate carbon content without actually being on the site. Remote sensing—using photographic and other images from aircraft or satellites—can be used to measure carbon-related factors. For example, infrared imagery can detect live biomass, with variations in the image reflecting variations in the type and level of biomass. Remote sensing has long been used in forestry for calculating commercial timber volumes of forest stands. The principal advantage of remote sensing is coverage, given its ability to assess a wide area relatively quickly. Another advantage is that the remote sensing and the analysis of the results are generally performed by experts, improving the credibility of the results and probably lowering the cost of verification. It can provide highly accurate information for some types of carbon-related measures, such as activities with readily visible results (e.g., deforestation and afforestation) or measurable carbon pools (e.g., live above-ground biomass). One disadvantage is the high fixed cost of providing remote coverage; satellites are very expensive to launch and maintain. Aircraft may be less expensive but may cover less area. Once the satellites are in place, extending satellite coverage to additional areas is relatively inexpensive. For some carbon-related measures, such as activities with less visible impacts (e.g., sustainable forestry) or less readily measurable carbon pools (e.g., soil carbon), remote sensing is problematic. Also, in some areas, cloud cover can interrupt regular measurements. Methods for consistently and reliably interpreting remote imagery are still under development, and are usually recommended to be used in conjunction with other techniques. Another indirect approach is to estimate agricultural and forestry carbon with models or other analytical tools. Models are available to estimate a variety of ecosystem processes, and are used to depict site-specific conditions. Models, especially computer models, are typically built from extensive research and data sets, and provide average or archetypical estimates of physical area, temperature, precipitation, forest or soil type, slope, plant diversity, and microbial activity. The accuracy of the results depends in large part on the validity and measurement of the input variables for the model. Data may be presented in tabular form, called "look-up tables" because estimates can be looked up in the table based on a few key variables, such as forest type and tree age or soil type. A related simpler approach might use inferences or generalized input data scaled up to the size of the farm or forested area to approximate the sequestration for an activity. Such an approach may reduce costs, but provide a relatively low level of precision, and possibly high verification costs. The advantage of a modeling approach is that it is relatively simple and low-cost, and often provides consistent estimates. However, it may not reflect actual differences within and across sites and activities, since it relies on archetypical or average carbon estimates and not site-specific carbon measurements. Model proponents often suggest using occasional site-specific sampling to assure the validity of the model chosen for the project and site, and some suggest adjusting the estimates based on the samples. This introduces the potential for bias in reporting carbon, and significantly increases the difficulty of verification. In addition, for most situations and project types, numerous models exist. These competing models may yield quite different estimates for the same site, because of the different data sets and assumptions used in constructing the models. One model may yield the most accurate estimates in certain circumstances, while another model may yield more accurate estimates in other circumstances. Congress has already taken steps to address some of the challenges associated with measuring carbon changes from forested and agricultural lands and practices. The 2008 farm bill ( P.L. 110-246 , the Food, Conservation, and Energy Act of 2008) includes a provision (Sec. 2709) directing USDA to "establish technical guidelines that outline science-based methods to measure the environmental services benefits," including carbon storage, from forests and agricultural activities. This includes developing measurement procedures and a reporting protocol and registry. The Energy Independence and Security Act of 2007 ( P.L. 110-140 , Sec. 712) directs the Secretary of the Interior to develop a methodology to assess carbon sequestration and emissions from ecosystems. This methodology is to cover measuring, monitoring, and quantifying GHG emissions and reductions, and provide estimates of sequestration capacity and the mitigation potential of different ecosystem management practices. Congress continues to face the question of whether its current authorized activities provide adequate and sufficient guidelines for accurately measuring carbon levels from forest and agricultural activities. The Appendix provides an annotated assessment of a range of agricultural and forestry activities, describing potential considerations according to measurement (quantification, verification, and monitoring), additionality, permanence, and leakage. The text box below provides a brief description of these different criteria. For more background information, see CRS Report RL34241, Voluntary Carbon Offsets: Overview and Assessment .

Proposals to reduce emissions of carbon dioxide and other greenhouse gases often include the use of forestry and agricultural practices and lands for carbon sequestration. However, uncertainty about the accuracy of measuring carbon from these activities has led some to question this potential. Basic approaches for measuring forest and agricultural carbon include on-site measurement; indirect measurement from off-site tools; and estimation using models or inferences. Because of challenges associated with balancing the cost and accuracy of these measurement tools, any practicable system for measuring forest and agricultural carbon might require a mix of these approaches.

In its April 2013 report to Congress, in response to the National Defense Authorization Act for Fiscal Year 2013 requirement that DOD provide a cost-benefit analysis and a risk-based assessment of the Aerospace Control Alert mission as it relates to expected future changes to the budget and force structure of such mission,report on any new analyses because, according to DOD officials, DOD was not weighing competing Aerospace Control Alert basing location alternatives in response to any future budget or force structure changes. DOD reported on its previous analyses that consisted of (1) three risk assessments DOD conducted to support the 2012 decision that determined which two alert basing locations could be reduced with the least amount of risk and (2) cost savings estimates DOD developed after making the 2012 decision to take two alert basing locations (one in Duluth, Minnesota, and the other in Langley, Virginia) off 24-hour alert status. DOD did not conduct or In our prior reports on the Aerospace Control Alert mission, we stated that GAO’s risk-based management framework noted that risk assessments should contain three key elements: an analysis of threat, an estimation of vulnerability, and an identification of consequences. Following a decision by DOD that two alert basing locations should be taken off 24- hour alert status, three risk assessments were conducted to support the 2012 decision of which two locations, once removed from 24-hour alert status, would have the least amount of increase in risk to the overall Aerospace Control Alert mission. DOD’s April 2013 report provided a summary of the final results of these three risk assessments. These risk assessments were performed by NORAD, the Office of the Secretary of Defense Office of Cost Assessment and Program Evaluation, and the Continental U.S. NORAD Region, which included consideration of threat, vulnerability, and consequence. All three of these assessments came to similar conclusions regarding which of the two alert locations would cause the least increase in risk if taken off of 24-hour alert status. NORAD’s risk assessment analysis was based on quantitative modeling of fighter basing and, in our February 2013 report, we noted that NORAD had improved its risk analysis by changing some of the assumptions used We also discussed the to address vulnerability and consequence.separate analysis conducted by the Office of Cost Assessment and Program Evaluation, which similarly relied on modeling to aid its evaluation of risk. Finally, in our February 2013 report, we described the analysis resulting from a panel of subject matter experts convened by Continental U.S. NORAD Region, which reached conclusions consistent with NORAD and the Cost Assessment and Program Evaluation modeling. NORAD officials stressed to us that there was an increase in risk that resulted from removing two basing locations from 24-hour alert status, but the risk assessments informed decision making as to which two bases removal would have the least increase in risk. According to DOD officials, no additional risk analysis was conducted following these three studies. According to DOD officials, DOD does not expect to make future changes to the budget and force structure of the mission beyond the decision already made to remove two sites from 24-hour alert status. In addition, the April 2013 DOD report notes that any further reductions in 24-hour alert sites would affect cross-border operations with Canada as well as mission accomplishment. Regarding the cost savings estimate, DOD’s April 2013 report states that removing the 24-hour alert status from the Duluth and Langley alert basing locations would result in an estimated savings of over $73 million over the fiscal year 2013-17 time period. The report states that these estimated cost savings are primarily from shifting personnel from full-time to part-time status at the two sites no longer on 24-hour alert status. We reported on these same cost savings estimates in February 2013 and noted that the cost savings were estimated by the Air Force after the decision was made to eliminate alert basing locations at Duluth, Minnesota, and Langley, Virginia, from 24-hour alert status. DOD has reported Air Force cost information for the Aerospace Control Alert mission in its budget displays but has not yet reported the comprehensive cost of the mission. Standards for Internal Control in the Federal Government notes that financial information is needed for periodic external reporting and, on a day-to-day basis, to make operating decisions, monitor performance, and allocate resources. Pertinent cost information should be identified, captured, and distributed in a form and time frame that permits people to perform their duties efficiently. Accurate and timely reporting of operational and financial data can assist program managers in determining whether they are meeting their agencies’ plans and meeting their goals for accountability for effective and efficient use of resources. Without comprehensive cost information, decision-makers may not know what resources are allocated and used in support of the Aerospace Control Alert mission. Pub. L. No. 110-417, § 354 (2008). weak internal controls limited DOD’s ability to accurately identify Air Sovereignty Alert mission expenditures. In addition, according to Air National Guard officials, not all National Guard Bureau costs are included in total Aerospace Control Alert mission costs. For example, the Air Force calculates the costs for each basing location based on formulas that do not consider the base’s location and the unit’s home station. However, according to Air National Guard officials, the actual costs of each basing location can vary depending on a number of factors, such as whether the personnel at the location are Air National Guard or active duty Air Force personnel or whether the assigned unit is home-based or a detachment unit—temporarily relocated from their usual duty station. The Air Force budget justification displays submitted for fiscal years 2010-14 include personnel costs for Air Force, Air National Guard, and Air Force Reserve personnel, but do not include costs, such as military personnel costs, that other military services have in conjunction with the Aerospace Control Alert mission. In addition to the 2009 requirement, the National Defense Authorization Act for Fiscal Year 2013 requires that DOD provide a consolidated budget justification display that fully identifies the Aerospace Control Alert budget for each of the military services and encompasses all programs and activities of the Aerospace Control Alert mission for each of the following: (1) procurement; (2) operations and maintenance; (3) research, development, testing, and evaluation; and (4) military construction. However, the act does not require any additional military personnel cost reporting. DOD has not yet developed a consolidated budget display in response to this new requirement. However, according to DOD officials, such a display is being developed for inclusion with the department’s fiscal year 2015 budget submission to include the four budget categories specifically identified by the act. As a result, DOD’s consolidated budget display for the fiscal year 2015 budget submission may not include military personnel costs associated with the other services, particularly the Army. The consolidated budget displays required by the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 and the National Defense Authorization Act for Fiscal Year 2013 should help provide Congress and senior DOD decision makers with a more complete picture of Aerospace Control Alert mission costs. However, in addition to Air Force, Air National Guard, and Air Force Reserve personnel costs, personnel costs from the other DOD components also support the mission—including the Army and the Army National Guard personnel providing ground-based air defense capabilities in support of the mission. Unless this additional information is included in DOD’s revised budget display, DOD decision makers will not have comprehensive cost information to make fully informed resource allocation decisions to support the Aerospace Control Alert mission. The Aerospace Control Alert mission is critical to defending U.S. airspace. Once completed, the budget justification displays required by the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 and the National Defense Authorization Act for Fiscal Year 2013 should aid in the identification of many program and activity costs for each of the military services associated with the Aerospace Control Alert mission. A comprehensive identification and reporting of all costs associated with the mission, including all military personnel costs, could aid DOD in exercising effective management of this mission and its associated resources. Comprehensive reporting of all costs of the mission would also provide the Congress with a fuller accounting of these costs to aid in its oversight of the mission. As DOD expands its cost reporting in the consolidated budget justification displays as required by section 354 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 and section 352 of the National Defense Authorization Act for Fiscal Year 2013, we recommend that the Secretary of Defense direct the Under Secretary of Defense (Comptroller) and responsible DOD organizations, as appropriate, to ensure that all Aerospace Control Alert program and activity costs for each of the military services are captured, including military personnel costs of the Army and Army National Guard. In written comments on a draft of this report, DOD concurred with our recommendation to ensure that all Aerospace Control Alert program and activity costs for each of the military services are captured, including those of the Army and Army National Guard. DOD stated that the Office of the Secretary of Defense (Comptroller) will include these costs in its Fiscal Year 2015 budget submission. DOD’s written comments are reprinted in their entirety in appendix I. We are sending copies of this report to the Secretaries of Defense and Homeland Security; the Commanders of NORAD, U.S. Northern Command, and U.S. Pacific Command; the Secretaries of the Army and of the Air Force; the Commandant of the Coast Guard; the Chief of the National Guard Bureau; and the Director of the Office of Management and Budget. In addition, this report will be available at no charge on our website at http://www.gao.gov. If you or your staff members have any questions about this report, please contact me at (202) 512-4523 or leporeb@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made key contributions to this report are listed in appendix II. Brian J. Lepore, (202) 512-4523 or leporeb@gao.gov. In addition to the contact named above, key contributors to this report were Mark A. Pross, Assistant Director; Adam Anguiano; Brent Helt; Mae Jones; Jeff Tessin; and Michael Willems.

To protect U.S. airspace, DOD performs the Aerospace Control Alert mission, which includes military forces arrayed in a rapid response posture to conduct both air sovereignty and air defense operations against airborne threats over the United States and Canada. The National Defense Authorization Act for Fiscal Year 2013 required that the Secretary of Defense submit a report to Congress that provides a cost-benefit analysis and risk-based assessment of the Aerospace Control Alert mission as it relates to expected future changes to the budget and force structure of the mission. The act also requires that GAO review DOD's report and submit any findings to the congressional defense committees. In response to this mandate, GAO examined (1) DOD's April 2013 reporting of a risk-based assessment and cost-benefit analysis of the Aerospace Control Alert mission as they relate to expected future changes to the budget and force structure of that mission and (2) the extent to which DOD has reported the total cost of the Aerospace Control Alert mission. GAO reviewed DOD's April 2013 report to Congress and Aerospace Control Alert budget justification displays, and interviewed knowledgeable DOD officials. In its April 2013 report to Congress, the Department of Defense (DOD) did not provide any new analyses, but provided the results of previous analyses related to the Aerospace Control Alert mission because, according to DOD officials, DOD was not expecting any future changes to the budget or force structure of the mission, including consideration of any basing location alternatives. DOD's April 2013 report summarized the results of three risk assessments that were conducted to support DOD's 2012 decision on which two alert basing locations could be removed from 24-hour alert status with the least amount of risk. The North American Aerospace Defense Command (NORAD), the Office of the Secretary of Defense Office of Cost Assessment and Program Evaluation, and the Continental U.S. NORAD Region performed these assessments and all concluded that, given the 2012 DOD decision that two alert basing locations would be removed from 24-hour alert status, the removal of the locations at Duluth, Minnesota, and Langley, Virginia, would provide the least increase in risk. DOD's April 2013 report also summarized a cost savings estimate developed after the decision to remove these basing locations from 24-hour alert status. Along with the submission of DOD's budget requests for fiscal years 2010-14, the Air Force reported cost information for components of the Aerospace Control Alert mission in budget displays required by the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, but DOD did not report the comprehensive cost of the Aerospace Control Alert mission. Standards for Internal Control in the Federal Government notes that financial information is needed for periodic external reporting and, on a day-to-day basis, to make operating decisions, monitor performance, and allocate resources. The Air Force provided budget displays containing information related to Air Force and Air National Guard military personnel costs, flying hours, and certain other costs along with DOD's budget justification materials for fiscal years 2010-14. However, DOD did not report other military service costs associated with the Aerospace Control Alert mission. The National Defense Authorization Act for Fiscal Year 2013 now requires, in addition to the Air Force cost information required by the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, that DOD provide a consolidated budget justification display that fully identifies the Aerospace Control Alert budget for each of the military services and encompasses all programs and activities of the Aerospace Control Alert mission for each of the following: procurement; operations and maintenance; research, development, testing, and evaluation; and military construction. According to DOD officials, such a display is being developed for inclusion with the fiscal year 2015 budget submission. These consolidated budget displays should help provide a more complete picture of Aerospace Control Alert mission costs. However, other military personnel costs, including those associated with the Army and the Army National Guard personnel providing ground-based air defense capabilities, support the mission as well. Inclusion of this information, in addition to the information required in the budget justification displays, could provide decision makers with more comprehensive cost information to make fully informed resource allocation decisions to support the Aerospace Control Alert mission. GAO recommends that DOD, as it expands its cost reporting in response to current reporting requirements, ensure that all personnel costs related to the Aerospace Control Alert mission, including those of the Army and Army National Guard, are included in DOD's budget displays. DOD concurred with GAO's recommendation.